Ouster Clauses Eliminating The Courts Jurisdiction : An Appraisal Of Section 6(6)(c) of CFRN In Light Of Nigeria's Democratic Regime

ABSTRACT
The fundamental objectives and directive principles of state policy, contained in Chapter II of the 1999 Constitution of the Federal Republic of Nigeria, are guidelines to the federal and state governments of Nigeria to promote social order.

As framed, the objectives appear to encompass social inclusiveness with a view to reducing socio-economic and political inequality in status and opportunities among individuals and corporate entities.
Among others, the Chapter provides for political, economic, social, educational, foreign policy and environmental objectives of state policy, which roughly correlate with the third generation rights now recognized by the United Nations Organization’s 1948 Universal Declaration of Human Rights.

Advertising

However, despite the principles laid down therein considered fundamental in the governance of the country and which could have induced a duty from the state to apply these principles in making laws and policies for just and equitable administration of the country, these provisions are not enforceable by any court in Nigeria vide a counter-provision in section 6, sub-section (6), paragraph (c) of the 1999 Constitution, which makes the objectives non-justiciable.

The focus of this article will be centered on analyzing the ouster clause removing the jurisdiction of the Courts in entertaining rights stipulated in Chapter II of the CFRN.

This analysis will be done in the light of Nigeria’s democratic nature and recommendation(s) will be proffered also.

INTRODUCTION:
The provision of Section 6(6)(C) has been a point of discussion and several criticisms have befallen it with major respect to it’s effect on Chapter II of the CFRN – non-justiciability.
The first question here to be answered would be, is Chapter II of the CFRN justiciable??

Section 6(1) of CFRN provides thus:
The judicial powers of the Federation shall be vested in the Courts to which this section relates, being courts established for the Federation.

Further more, Section 6(6) provides that:
6 (6) The judicial powers vested in accordance with the foregoing provisions of this section;

(a) Shall extend, notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law;

(b) Shall extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that persons;

(c) Shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the fundamental Objectives and Directive Principles of State Policy set out in chapter II of this Constitution.

It’s clear that the provisions of Section 6(6)(C) did not absolutely make the provisions of Chapter II of the CFRN non-justiciable.
By the use of the term “. . . EXCEPT AS OTHERWISE PROVIDED BY THIS CONSTITUTION . . .” used in the Section, it goes to show that there are certain factors that needs to be in place to make Chapter II of CFRN justiciable and enforceable.

In giving credence to the above, the Court held in RE-OLAFISOYE’S case, otherwise known as FRN v. ANACHE or OLAFISOYE v. FRN (2005) 51 WRN 62 that the following factors can make the provisions of Chapter II justiciable.

I. Where the Constitution makes another provision on any of the subjects in the Chapter which are outside Chapter II. Hence, the sections outside Chapter II that complement justiciable sections in the Constitution identified above.

II. Also, where the National Assembly makes any legislation making any of the subjects of the chapter the subject of such an Act and thus justiciable, since the National Assembly is endowed with such powers to make those laws as exemplified in relevant sections above. Hence, the example of S 15(5) and the EFCC Act and ICPC Act; and NESREA Act for section 20 that emphasizes environmental policy.

III. Also, where the rights in Chapter II can be intertwined with those in Chapter IV, then the rights in Chapter II can be enforceable.

IV. The rights stipulated in African Charter on Human and People’s Right can also be enforced since the Charter is a domestically enacted instrument subject to Section 12(1) of the CFRN. See also the case of ABACHA v. FAWEHIMI SC45/1997

Having considered the above, it is obvious that the provisions of Chapter II of CFRN is not absolutely non-justiciable. However, the writer believes that the rationale behind the insertion of the non-justiciability clause in Section 6(6)(c) of the CFRN is to accommodate the economic realities of the Nation with respect to Chapter II of the CFRN which consists of Socio-economic rights.

Just like law of gravity which states that what goes up must surely come down, having gone up to appraise the above discourse, I would quickly delve into the focal subject matter of this article. The aspect of the consideration here is the place of the clause ousting the Courts jurisdiction with respect to Section 6 (6)(c) of the CFRN in a democratic regime as Nigeria.

Ousting the jurisdiction of a court is an act that is familiar and relative in the military regime because this enables the operation of their dictatorial rule and enforceability of their decrees without limits.

Constitution (Suspension and Modification Decree) No 1 of 1984.
Federal Military Decrees.
Unsuspended parts of the 1979 Constitution.
Laws made by the National Assembly before military takeover or having effect as if so made.
Edicts of State Military Governor’s.
Laws made by the State House of Assembly before Military takeover or having effect as if so made.

From the above hierarchy, it is clear that after Decree No 1 and other Military Decrees, the next in line is unsuspended part of the 1979 Constitution.
Thus, State Military governments cannot not oust the jurisdiction of the court through the use of edicts.

Further more, the Court per Uwaifo, JCA held in the case of OKEKE v. A-G ANAMBRA State (1992) I NWLR (pt. 215) 60 at 86, as follows:
Decree No. 13 of 1984 is an ouster legislation. Once the provision of a Decree or Constitution ousting the jurisdiction of the courts on any specific matters are clear and unambiguous, the court are bound to observe and apply them.

They are not entitled, even when the ouster has drastic effect on the right of any person, to approach its interpretation by a false or twisted meaning given to it by unacceptable restricted construction.

Muhammad J.C.A in the case of ABACHA v. FAWEHIMI S.C. 45/1997 held that “the grundnorrm in Nigeria under the present Military administration is the Constitution (Suspension and Modification) Decree No. 107 of 1993 and the subsequent Decrees regulating the exercise of executive, legislative and judicial powers in the country.

Section 5 of Decree No. 107 enacts as follows:
‘No question as to the validity of this Decree or any other Decree made during the period 31st December 1983 to 26th August 1993 or made after the commencement of this Decree or of an Edict shall be entertained by any court of law in Nigeria.”

The Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 12 of 1994 provides:

‘No Civil proceedings shall lie or be instituted in any court for or on account afar in respect of any act, matter or thing done or purported to be done under or pursuant to any Decree or Edict and if such proceedings are instituted before or after the commencement of this Decree, the proceedings shall abate, be discharged and made void.’

These two enactments, which have been judicially examined since the inception of the Military regimes in Nigeria in a plethora of cases leave no room for any interpretative mechanisms to found jurisdiction when jurisdiction has been effectively ousted.

The courts have always construed such clauses strictly, However, where, as in this case, the language is plain, the courts have to give effect to it. The legislations are undoubtedly drastic, but the courts are bound to give effect to them and decline adjudicating.”

From the foregoing, it has been established that the import and purport of the ouster clause of the jurisdiction of a court is for the sole purpose of dictatorial rule without limits and this is vividly and clearly an operation undertaken by the Military through their decrees and other non-democratically inclined systems.

Nigeria is a democratic State and as such should abide by all modus operandi required of a democratic Nation Statearly, the provisions of Section 6(6)(c) of CFRN is an ouster clause to the jurisdiction of Courts in Nigeria with respect to the issues and matters under Chapter II of the Constitution.

Sections 6(6) provides that:
6 (6) The judicial powers vested in accordance with the foregoing provisions of this section;

(a) Shall extend, notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law;

The use of the wordings, “SHALL NOT” as used in the first paragraph of Section 6 (6)(c) is clearly an indicator that the jurisdiction of the courts were extinguished for the purpose states therein.

The writer opines that the jurisdiction of the court being ousted with respect to the above is alien to democracy and more so, to a democratic Nation State.

Furthermore, given the fact that the provisions of Chapter II of the CFRN can still be enforceable in a Court of law by the virtue of certain factors already addressed in this article, the ousting of the Courts jurisdiction to prima facie determine such matters is not justifiable with Democracy.

As Atifete Jahjaga stated “democracy must be built through open societies that share information. When there is information, there is enlightenment. When there is debate, there are solutions. When there is no sharing of power, no rule of law, no accountability, there is abuse, corruption, subjugation and indignation”.

Subject to the above, where the jurisdiction of the Court with respect to the rights provided for in Chapter II of the Constitution is ousted on the prima facie surface view, it leaves the government not accountable to anyone when it concerns enforcement of rights stated in Chapter II of the CFRN .

This is why the decree is the highest form of law in the Military regime and era and not the Constitution. The Decree is the only instrument that can oust the jurisdiction of the court during the Military regime.
In the case of DOKUN AJAYI LABIYI vs. ALHAJI MUSTAPHA MOBERUAGBA ANRETIOLA [1992] 10 SCNJ part 1 : the court listed the hierarchy of laws in a military regime. The hierarchy is listed below in descending order:

RECOMMENDATIONS
The writer after addressing the subject matter in view recommends that since the ousting clause of the jurisdiction of a Court is only familiar with non-democratic Nation States, Nigeria being a democratic Nation State should remove the ousting clause relating to the jurisdiction of Courts in Section 6(6)(c) of the Constitution with respect to rights contained in Chapter II to enable courts to have jurisdiction to entertain matters relating to Chapter II of the CFRN.

The writer’s recommendation here is based on the fact that since there are factors that can make the provisions of Chapter II justiciable, Courts should be adorned with their jurisdiction to entertain such matters. The Court should have the discretion to decide in every case before it whether the factors for the enforceability of the provisions of Chapter II of CFRN are in place.

Also, the Economic realities in Nigeria shouldn’t necessitate the ousting of the courts jurisdiction from entertaining matters relating to the socio economic rights of the citizens especially given the fact that there are factors that can warrant the justiciability of Chapter II of CFRN.

CONCLUSION
Quoting the exact words of Ronald Reagan “Democracy is worth dying for, because it’s the most deeply honorable form of government ever devised by man”.
Nigeria is a democratic Nation State and therefore should abide by operations that guarantees the sustenance of Democracy and pass through the operations that doesn’t guarantee democracy undeterred.
The Writer believes that if the recommendation above is adhered to, it would enable Democracy to strive more in Nigeria.

ABOUT THE AUTHOR

INNOCENT CHIWUOKEM SYLVESTER is a recent graduate from the Faculty Of Law, Abia State University, Uturu. He is currently awaiting admission into the Nigerian Law School.