2016 Global Review of Constitutional Law

ing the Constitution from which they
derive their force. The only permissible
exception, where a State governor could
truncate the lifespan of a local government
council which evolved through the
democratic process of elections, is ‘for
over-riding public interest’ in a period of
emergency. 9
This categorical position of the Court on the
constitutional security of tenure for local
councils will engender democratic consolidation
in Nigeria. Undemocratic governance
at that level cannot be expected to augur well
for representative government at State and
national levels. Although not entirely novel,
as there were already affirmative lower court
precedents on section 7 of the Constitution,
this Supreme Court decision will put the
matter beyond doubt. The decision places a
high threshold for lawful interference with
the tenure of councils, as a ‘state of emergency’
requires a specific proclamation under
the Nigerian Constitution for a limited
number of purposes. 10 The occasions of lawful
interference with council tenure should
therefore be relatively rare.
Although there was no dissent in this case, Justice
M.D. Muhammad disagreed that the Ekiti
State law was unconstitutional, but found that
the Governor acted unlawfully by the terms of
section 23B of the law. In his view,
A community reading of [both the Constitution
and the legislation] makes one
conclusion necessary: that the Ekiti State
House of Assembly is empowered to
make laws for the function of local government
councils in the State provided
such laws do not temper [sic] with or
abrogate the guaranteed existence of the
democratically elected councils in the
State.
In the case at hand, I am of the firm and
considered view that section 23B of
the Ekiti State Local Government Administration
(Amendment) Law which
empowers the governor to dissolve
democratically elected councils “for
over-riding public interest subject to the
two-thirds majority approval of members
of the House of Assembly” only is not by
its tenor inconsistent with section 7(1) of
the 1999 Constitution that guarantees the
existence of the councils. What is unconstitutional
is the use to which the Governor
invoked his powers as lawfully conferred
by the legislation. A lawful resort
to the section presupposes the existence
of facts from which the “over-riding public
interest” behind the dissolution of the
council(s) by the governor may readily
be inferred. In the instant case, the appellants
have failed to demonstrate these
facts. Where, for example, the peaceful
function of a local government council,
for whatever reason, has become impossible,
the House of Assembly may by a
resolution of two thirds majority approve
the Governor’s request to dissolve the
council(s). It is unthinkable to imagine
that such a situation would engulf the
entire sixteen councils at the same time.
Even if the sixteen local government
councils had been so affected, it remains
the appellants’ burden to so establish.
Having failed to discharge this burden,
the lower court is right not only in its
decision that the trial court had wrongly
declined jurisdiction but also in the decision…that,
on the merits, the governor’s
dissolution of the sixteen democratically
elected councils was unconstitutional
and void. The governor’s exercise of his
powers under the enabling law is arbitrary
and unpardonable. 11
The extent that the section 7 guarantee of
“democratically elected local government
councils” does not trump a law granting the
governor power to sack the councils may suggest
that Justice Muhammad understates the
normative significance of the constitutional
provision. However, his less categorical approach
to reading the provision implicitly acknowledges
due deference to the legislature,
especially as section 23B of the Ekiti State
law contains the democratic safeguard of
two-thirds majority legislative approval of the
Governor’s exercise of the statutory power in
the “over-riding public interest.”
Rights and Freedoms
Orji Uzor Kalu v. Federal Republic of Nigeria
(2016) 9 NWLR (Pt. 1516) 1
This case is an important contribution to the
execution of anti-corruption policies in Nigeria.
The Supreme Court ended an abuse of legal
process politically-exposed persons (PEP) used
to frustrate criminal investigation and prosecution
initiated against them. Using the pretext of
enforcing their constitutional rights against anti-corruption
and other law enforcement agencies,
PEPs seek, and sometimes secure, injunctions
enjoining these agencies not to arrest or
prosecute them until the determination of suits
to enforce their fundamental rights. While their
“gagging suits” drag out in court, the pressure
from law enforcement wanes.
The appellant, Mr. Orji Kalu, a former State
governor, filed a suit to enforce his constitutional
rights and obtained an ex parte order
from a High Court restraining the Economic
and Financial Crimes Commission (EFCC)
from arresting him. EFCC was investigating
him for corruption and money laundering
committed while he was governor. Despite
this, EFCC filed charges against him in a Federal
High Court. He unsuccessfully sought to
quash these charges with the injunction.
The Supreme Court held that it was improper
to use legal processes to “muzzle” or prevent
a law enforcement agency from discharging
its statutory functions, especially the investigation
and prosecution of crimes. As the
Court pointed out, the constitutional rights of
personal liberty and freedom of movement
are qualified by the public interest to bring a
person before a court in execution of a court
order or upon reasonable suspicion of his having
committed a criminal offence.
For a person to rush to court to place a
clog or shield against criminal investigation
and prosecution is a clear interference
with the powers given by law and
9
(2017) 3 NWLR (Part 1551) 1, 33 (Nweze, JSC).
10
Section 306.
11
(2017) 3 NWLR (Part 1551) 1, 45-46.
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