6th February, 2024
By Ebun-Olu Adegboruwa, SAN
The State of Osun is in some quandary at the moment, nearing a total paralysis of governance, if the anomaly is not arrested urgently. In law, there are three levels of governance in every State in Nigeria, the Legislature, the Executive and the Judiciary. All the three arms must work together. The legislature enacted the law that created the offices of the three arms, specifying their respective duties and obligations. The executive formulates policies and programmes for the government and the people while the judiciary acts as a check upon the exercise of the powers of state. Upon his election, the President is sworn in by the Chief Justice of Nigeria and upon his assumption of office, the President in turn proclaims the legislature. The President appoints the Chief Justice and for the latter to properly assume office, his appointment has to be confirmed by the Senate and thereafter he has to be sworn in by the President. What this simply means is that the three organs of government work together even though they are independent.
Under and by virtue of section 6 (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended, “the judicial powers of the Federation shall be vested in the Courts to which this section relates, being Courts established for the Federation.” Section 6 (2) established Courts for the States. By virtue of section 6 (6) (b), “the judicial powers vested in accordance with the foregoing provisions of this section shall extend to all matters between persons, or between government or authority and to any persons 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 person.” In simple terms, the only body empowered to determine and adjudicate upon disputes are the Courts created by law. To extend judicial powers to cover all persons, government or authority means that in the eye of the Constitution, no one is above the law. The reason for this is to avoid a breakdown of law and order in the society such that persons who are aggrieved over the actions or policies of others will have the opportunity of ventilating their grievances in a manner that follows due process of law. Even from the days of our forefathers, society has never existed without a forum for the settlement of disputes. I have laboured to imagine how Governor Ademola Adeleke is currently governing Osun State without the judiciary. The contemplation of the Constitution is that no State in Nigeria can or should be governed effectively without the judicial arm in full operation. Even when the military took power through coup d’etat, the Courts were left intact. Never in the history of our nation have we had to contend with a situation whereby the Courts are locked up perpetually.
Section 4(8) of the Constitution states thus:
“Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall by subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.”
What the framers of the Constitution are saying is that there shall be no dictatorship of any kind in governance. Laws made by the legislature must always be subject to the jurisdiction of the Court, so too the actions of the executive. This is not the case in Osun State presently, because of the strike action embarked upon by judicial workers over the tenure of office of the Chief Judge of Osun State. If anyone is arrested in Osun State, he stands to remain in custody, whether such arrest is lawful or not. In the same vein, if land is acquired compulsorily or taken over by force, the victim has no remedy but to accept his fate, since the law forbids any resort to self-help. The executive arm of government in Osun State is running riot, ruling without the judicial arm. No government should be allowed to function without the Courts as that will only encourage lawlessness and dictatorship. The House of Assembly of Osun State cannot also exist without the judicial arm of government, as laws being enacted must be subject to the interpretation of the Courts. But the issues arising from the closure of all courts in Osun State go deeper than this.
Presently, no judicial officer can be appointed in the State and Magistrates cannot be promoted. I have also wondered how the Governor was able to present the 2024 budget estimate to the House of Assembly for approval without the input of the judiciary of Osun State, the Chief Judge being the chief executive of that indispensable arm of government. In other words, can a State in Nigeria purport to have an Appropriation Bill that does not reflect the estimates of the judiciary? Only the Governor can provide an answer to this query but I pray that the House of Assembly of Osun State did not enact an Appropriation Law that excluded the judiciary. If the judiciary in Osun State will not be allowed to function, for whatever reason, then the other two arms of government have no justification to continue to remain in office for the exercise of illegal actions. By the Public Officers Protection Law of Osun State for instance, certain actions can only be challenged within three months of their occurrence otherwise the cause of action becomes statute barred. The strike action embarked upon by judicial workers has lasted well over three months now, thereby rendering certain actions of the government beyond judiciary inquiry. This is unacceptable.
The Constitution contains an absolute prohibition against ousting the jurisdiction and powers of the Court in its section 4 (8) that “save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a tribunal established by law.” The true interpretation of this provision is that it is illegal for there to be a Governor or Speaker of the House of Assembly in any State where there is no judiciary or where the judiciary is not allowed the exercise of its statutory functions of interrogating the actions, laws and policies of the other arms of government. I do not see how Governor Adeleke can continue to remain in office and govern Osun State effectively and legally without the courts of law established for the State by the Constitution. It is an aberration that must not be allowed to fester because what is left is anarchy and lawlessness.
I have been told by some of my colleagues and comrades that there are genuine petitions pending before the National Judicial Council highlighting certain acts of misconduct against the Chief Judge of Osun State. That may be the case and indeed it is desirable that the actions of the Chief Judge and the judiciary be brought under scrutiny. But should that alone be the justification why cases cannot be filed in court or why suspects should remain in custody indefinitely and without trial? Can the supposed grievances against the Chief Judge shut down the entire judiciary of a State and the Governor is content to remain in office without check? The options available for Osun State are so very clear. The Courts must be opened for the discharge of their constitutional functions. In this regard, I humbly urge the Governor to dialogue with the judiciary staff in order to open the Courts. It is a state of emergency that warrants urgent actions from the State and those in charge of its affairs.
In the event of failure, inability or unwillingness by the Governor of Osun State to restore law and order in the State by opening the Courts for the performance of their constitutional functions, section 305(1) C-F of the Constitution permits the President to declare a state of emergency in any State of the Federation where there is clear and present danger of an actual breakdown of public order and public safety requiring extraordinary measures to avert such danger. There cannot be public order or public safety in any part of the Federation such as Osun State where the entire judiciary is shut down and there are no lawful means to resolve grievances by the public. Let the Governor save Osun State. We cannot dance forever.