Preliminary Objections
[13]
Before addressing these substantive issues, there were certain preliminary
objections to Mr Mustapha’s claim that must first be addressed. The Attorney
General submitted that the court lacked jurisdiction in the matter and also, that
Mr Mustapha had no proper standing to initiate these proceedings. The Attorney
General contended that the appointment of the Elections Commission Chairman
was not justiciable as it was excluded from Article 163 which reserves to the
High Court exclusive jurisdiction to review specific matters including elections.
He further submitted that Article 161(2) creates an executive power in the
President in the nature of a convention and as such the Article was not
reviewable by the courts. Finally, it was said that, even if the matter was
justiciable, it is the Leader of the Opposition, and not Mr Mustapha, who was
the proper party to sue; that Mr Mustapha’s reliance on being a citizen, a
registered elector and a Member of the National Assembly, among other things,
was insufficient to establish his interest as a party to this case.
[14]
These preliminary objections were raised in one form or the other in the courts
below and rightly overruled. Unless specifically ousted or constrained, the court
has an inherent and unfettered jurisdiction in matters relating to the
interpretation of the Constitution.5 It is the court that authoritatively settles what
the Constitution means and whether some action that is taken by a constitutional
actor is within or outside that actor’s constitutional remit. The Attorney General
was right to note that the appointment of the Chairman of GECOM was not
included in the list of matters contained in Article 163 over which the High
Court has a peculiar jurisdiction. But it is precisely that omission that ensures
that the court’s jurisdiction to inquire into the propriety of the appointment of
the Chairman is unconstrained by the strictures that attend inquiry into those
matters that are embraced by Article 163. Where legitimate questions are raised
by a citizen that the appointment of the Chairman of GECOM may not have
been in accordance with the imperatives of the Constitution, the court is free to
have resort to its inherent jurisdiction and should not turn away the person who
5
See: AG v Joseph and Boyce [2006] CCJ 3 AJ.