Judicial review of ouster clause provisions in the 1999 Constitution: lessons for Nigeria

Abstract

Ouster clause provisions rob the courts of jurisdiction, and ouster in Nigeria is observed under the classification of human right into the Fundamental Objective and Directive Principles of State Policy and the Fundamental Human Rights. The provisions of section 6(6) (c) of the Constitution of the Federal Republic of Nigeria, 1999 as such ousts the jurisdiction of the law courts in the enforcement of Directive Principles. The paper considers whether the unification approach adopted in the Preamble to the African Charter, the Constitution of the Republic of South Africa and that of India, is not a better option for Nigeria in the enforcement of matters under the Directive Principles. It investigates whether the ouster of jurisdiction of the courts on pre-election matters and impeachment of the executive do constitute an absolute bar on the courts’ jurisdiction. The paper recommends that the courts should adopt judicial activism as they review ouster of their jurisdiction, with a view of protecting human right and forestalling arbitrariness in governance. A court should then hesitate to unduly deny itself of jurisdiction on the provision that restriction should be strictly for the promotion of the interest of the state.

Keywords: Judicial review, ouster clause, rule of law, unification, judicial activism