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Political questions, national interest and the judiciary – Part 3

By David Olusoga Fayemi
24 March 2023   |   3:34 am
Mr. Jacob Zuma, a former South Africa president captured the executive temperament on the audacity of the judiciary aptly when he stated in 2010, that “in paying tribute to our former Chief Judge, we reiterate our firm belief in the principle of rule of law, the separation of powers, and judicial independence.

Mr. Jacob Zuma, a former South Africa president captured the executive temperament on the audacity of the judiciary aptly when he stated in 2010, that “in paying tribute to our former Chief Judge, we reiterate our firm belief in the principle of rule of law, the separation of powers, and judicial independence. We also reiterate our view that there is a need to distinguish the areas of responsibility between the judiciary and the elected branches of the state, especially with regards to policy formation. The executive has the sole discretion to decide policies for government… to provide support to the judiciary and free the court to do their work; it would help if political disputes are resolved politically.”

Perhaps the take away for me in Zuma’s speech is that the Nigerian court must in electoral matters always tilt towards respecting the voting wish of the majority of the people as sacrosanct, thereby jettisoning technicalities that it often times deploy in some of these cases. Zuma in the same speech also stated that “the powers conferred on the courts could not be regarded as superior to the powers resulting from a mandate given by the people in a popular vote.”The danger with this type of reasoning is the fallout of what the world is currently witnessing in Israel over the attempt at castrating the judiciary in that country as muted earlier.

Justice John Tsoho of the Federal High Court sitting in Abuja recently jettisoned the age-long obstacle of locus standi despite the failure of the applicant, one Oluwatosin Ajaomo to show that he had an overriding interest over others in bringing the action aimed at determining the propriety or otherwise of the Senate refusal to confirm a nominee forwarded by the president for the office of the chairman of the Economic and Financial Crimes Commission. He innovatively answered the quasi-political question before raising the issue of locus standi. He ruled that the action of the senate was exclusively within the realm of their legislative powers as they are not there to merely rubberstamp the nomination of the president but to also ensure that competent and qualified persons are so nominated into that office.i

A judge is not permitted to express political opinions in the performance of judicial duties not even by way of obiter. That is why the Supreme Court cases involving strong political coloration often adopts judicial diplomacy in interfering with the function of the other branches of government. In A.G. Lagos v. A.G. Fed above cited, the apex court denied prayers 7 and 8 of the defendant/respondent bothering on invalidation of local government election held in the affected 57 local government on the grounds that other critical stakeholder such as state-

INEC as well as chairmen-elect were not joined as parties pursuant to its own decision in Oloriode v Oyebi (1984).ii This type of haphazard exercise of judicial discretion is best understood as judicial radicalism in situation of dangerous uncertainty such as was witnessed in the recent A.G. Zamfara & Ors case wherein declaratory relief was granted against the Central Bank of Nigeria in absence of its joinder as a party in the action.

The consensus generally now appears to be that cases involving national security, international policies, international treaties, political appointments, conferment of national honours, and matters contained in Chapter II of the Constitution pursuant to Sec. 6(6)(C) 1999 Constitution on the Directive Principle of State Policy etc. are among matters in the realm of politics which is clearly within the competence of the other arms of government. They are considered far removed from the judiciary which is deemed as ill-equipped to entertain such matters. Okogie V A.G. Lagos (1981).iiiIt must also be spelt out that the court is deemed ill-equipped, in that matters with inherently political question in nature lacks legal standard upon which a judge or a court may test its legitimacy.

In a number of common law countries around the world, political avoidance of political questions has little or no place in their corpus juris. A good example of this jurisdiction is India where the court will not entertain any notion of any doctrine that tends to give unrestricted blank check to the executive arm of government. See B.R.Kapur v State of Tamil Nadu &Anor.ivHowever, as many constitutional experts have rightly observed that “Political system failures means that political processes cannot by themselves return to equilibrium without help. And it is precisely because the political branches have no incentives to constrain themselves that the courts must intervene” (Lawrence, 2021)v

It is trite that the court often shy away from answering questions that hovers around national security in addition to international relations and foreign policies; this is because to do otherwise will no doubt raise issues of conflict of laws which is on its own a tough customer. In 2007, the suit filed by the Republic of China over what it terms as violation of the name right of Taiwan by the International Standard Organisation was held by a slim majority of the Swiss Supreme Court as being an action bothering on political questions which are matters not covered by the jurisdiction of that court.

Although the United States constitution did not expressly provide for judicial review, the court since the early days of American constitutional history radically ascribed that power to its self. Same power, the American court has since bequeathed to the world leaving each court with discretion on when such an incursion into political powers is to be exercised by the same court in future or by courts in other clime. Conversely, should the court consider it inexpedient; the same court also ruled that the power must be quickly jettisoned under the guise of avoiding political questions which it lack the powers to enforce. In England nowadays, ‘subject-matter’ and ‘suitability’ is the governing rule as against strict non-justiciability.

It is sad that Nigerian courts still continue to make a dichotomy between fundamental right and political rights which are both in my view civil rights. The current episode of the naira redesign has shown that it is high time we rethink the Sec. 6(6)(c) of the constitution and make issues surrounding economic and social issues, good governance justiciable per se. The judiciary must be made to be truly independent of the other arms of government with all the three arms playing their respective roles carefully and honestly in the appointment of judges. Failure to do this will make the judiciary continue to find itself corrupted and enmeshed in corruption which is all that is required to constantly keep it castrated as a lame duck among the three arm of government.

David Olusoga Fayemi, dolufayemi@gmail.com is a lawyer based in Lagos.