Political questions, national interest and the judiciary – Part 2
South Africa: The main focus under the South African experience is that Nigeria must borrow a leaf from there just as Uganda did, by adopting constitutional amendment as a tool for regulating justiciability and non-justiciability. India is also a classic example of this success story.
The question of the meaning of political question and even the meaning and application of the term justiciability has been roundly tested by the likes of Prof. Ben Nwanbueze and as such I lack the academic stamina to want to throw meaning or perspective around on that subject. Simply put non-justiciable means inability of any court of law to try certain cases even if there is the likelihood of an infringement of right See Okogie V A.G. Lagos State (1981).i The 1999 constitution in Sec. 6(6)(c)which provides for it is an aberration on the adjudicatory and interlocutory powers of the judiciary.
It is gratifying that the judiciary is beginning to grow some balls in attempting to answer some fundamental question that our nascent democracy urgently needs to answer. These are questions the judiciary would have hitherto dodged or avoided on the excuse that they bordered on political questions which the courts oftentimes dodge. A classic example is the case of A.G. Eastern Nigeria v A.G. Federationii on the issue of the 1964 census which the court tacitly failed to make a constructive judicial pronouncement on. It is not too surprising that the application of the rule was informally experimented on under the republican constitution of 1963 of the first republic as depicted in the above case. A consideration of Japanese experience on this matter will review that a unitary system will have lesser pressure to determine issues bothering on judicial review tailored in the direction of political question.
As a matter of fact, it is not too long ago that the court in Japan began seizure of the power of judicial review. The Nigerian situation however changed under the 1979 constitution that ushered in the second republic. During that era, the bulk of cases handled by the court bordering on political questions centred on impeachment proceedings, legislative affairs and political party primaries according to EnyinnaNwauche.iii
The Dilemma of Constitutional Democracy and Concept of Separation of Power
The problem of constitutional democracy and the concept of separation of powers often times leads to friction between the various organs of powers which is mostly actuated by jealousy and suspicion of the different organs of each other. Currently, the Israeli government is attempting to alter the critical essence of this concept by tampering the finality of the decision of the apex court in the land by subjecting that finality to legislative dictates. In a constitutional democracy, the idea of check and balances connotes independent judiciary, independent electoral body, and a free press are sacrosanct. This therefore presupposes that the grundnorm or basic norm is the Nigerian 1999 Constitution as amended. The dilemma in constitutional democracy is that the court sometimes finds itself hovering around the boundary of judicial powers and legislative powers in its bids to interpret the law thereby making a quasi-law in the process. In some cases the court often step out of line in the exercise of its constitutional powers which are occasionally over looked as the people often tolerated it as being the last hope of the common man. Examples include Uzodima V Ihedioha & Ors (2020)ivand A.G. Zamafara&Ors. v. F.G.N. (Supra). In the former case, as in many recent decisions over election petition cases such as in Akwa Ibom and Yobe States respectively, It will appear that the power clinically usurped in these instances is not necessarily that of the other branches of government, but rather that of the constitutional rights of the citizenry to determine their rulers by the rule of one man one vote as enunciated in the American case of Reynolds v. Sims(1964).v
If we are to continue to take our cue on avoidance of political question from America, it is therefore important that we call out ruling parties attempting to make laws on preserving the right of incumbency and voting pattern from continuing on that part as projected in the American cases of Lamone v. Benisek (2019)vi and Rucho v. Common Cause (Supra)wherein it was held that federal courts lack jurisdiction to hear challenges over partisan gerrymeandering especially as it relates to redesigning of district or territorial maps or boundaries. A closer situation may be lifted from the Nigerian case of A.G. Lagos v. A.G. Federation (2004) on the creation of additional local government in Lagos State by the administration of governor Bola Ahmed Tinubu (as he then was). The same notion also underpins the attitude of the U.K. court in the Miller’s case (supra). While the Nigerian and the U.K. court had the courage to exercise judicial competence in the matter before them; the American strangely took a diffident direction. Although, the issue of political question was not raised in the Nigerian case as it was more of a constitutional matter, It is yet to be seen to what extent the controversial timing of the Naira redesign policies of the APC led government of President M. Buhari played in the outcome of the 2023 presidential election.
Judicial Activism or Judicial Radicalism in the Exercise of Judicial Powers
Indeed, it is not really for lower courts of records to venture into the sacred realm of attempting to answer political questions. In my humble view, I see this audacious attempt merely as a judicial activismin in the Nigerian judicial context. It may even be in some very rare situation – thankfully (for the rarity), amount to judicial radicalism. This is not because inferior courts of records don’t have judicial powers to determine justiciable cause of actions brought within the confines of their powers, far from it. It is usually because non-justiciable is often clothed in infringement of rights to which some judges cannot turn a blind eye. This makes judicial activism to be often viewed by the other arm of government as judicial affront or insubordination. But when it is decided by the apex constitutional court in the land, it will constitute the law irrespective of the leaning of the other arm of government until it is reversed by that court or by constitutional amendment.
To be continued tomorrow
Fayemi, email@example.com is a lawyer based in Lagos.