Ouster Clauses, Judicial Review and Good Governance: An Expository Study of the Experience in Nigeria and Malaysia

Abstract

Ouster clauses are provisions in the statutes that take away or purport to take away the jurisdiction of a competent court of law. It denies the court the ability to make any meaningful contribution with respect to matters relating to sustainable development and good governance brought before the court. In fact, it seeks deny the litigant any judicial assistance in respect of the matter having bearing on sustainable development and good governance brought before it. The legislature seeks, by the enactment of ouster clauses, to deny the court the power of judicial review in respect of the matter in which its jurisdiction has been ousted. Ousting the jurisdiction of the court is a reaction from the legislative arm of government to the increasing powers of the court in respect of judicial review of certain disputes. Thus, democracy with calls for constitutionalism has gained more recognition in many parts of the world. Given the general functions of judiciary as one of check and balance mechanisms in democracy, most people and government have developed interest in the judiciary and judicial process. Despite this, the benchmark of academic discourse seems to argue that courts’ hands are tied and should not review matters having to do with ouster clauses. This paper therefore makes an analytical exposition into the attitude of the courts in Nigeria and Malaysia to matters having to do with ouster of courts’ jurisdiction. It reveals the reactions of courts to constitutional ouster clauses and the ones contained in statutes and analyses how judicial review of the clauses can help promote good governance and sustainable development. The objective is to improve the quality of courts’ decisions and aid law reform in this area of law. It therefore hypothesizes that review of ouster provisions by the courts promotes constitutional justice, democratic principles, good governance, sustainable development and reduces injustices in the polity. For the purpose of the analysis, various constitutional provisions and courts’ decisions from the countries under review are examined.

Keywords: constitutionalism, good governance, judicial review, ouster clauses, sustainable development