Political questions, national interest and the judiciary

Politics cannot be effectively divorced from human societies and interactions, which is why Aristotle stated many centuries ago in his well-celebrated masterpiece titled ‘Politics’ that “man is by nature a political animal.” To him, “animals that live politically are those that have any kind of activities in common, which is not true of all gregarious animals.” To divorce politics from human activity is almost inhuman and as such law and politics are inalienable twins. The sooner the courts appreciate this fact, the better for good governance.

In a constitutional democracy, the courts are empowered under the separation of powers to exercise not only interpretative powers over constitutional matters but also powers of judicial review over other branches of government to avoid an infringement or circumvention of constitutional powers.

However, in the U.K., the situation is somewhat different as there is no rigid or written constitution requiring strict review. Therefore, the court will ordinarily not interfere with a valid act of the parliament.
The Origin of the Doctrine

It is not too difficult to realise that the origin of political questions is often clustered in matters associated with the powers of court to exercise judicial review. This explains why in many jurisdictions including America as in Marbury, v Madison,imost of the cases are always skewed in judicial review.

The safest cover for the courts in most of these countries is justiciability or non-justiciability. The resultant effect of this is to look for an easy avenue to run to for cover from the possible dilemma that consideration of it might trigger. Judicial review often serves as the pivotal for determination of when a question before the court is to be considered purely political and to which the court must tactfully avoid.

It is for this reason that the court in exercising a power of review of the activity of the other branch of government is overtly mindful of the risk of creating a political quagmire. Therefore it is safe to say that judicial review of cases tainted with political question are the only exception granted to the court by its own design to safely play politics with its powers.

The rationale behind this American-invented doctrine established in Marbury’s case and perfected in the case of Baker v. Carriiis based on the reasoning that a court of law need not burden itself with matters that a judicial pronouncement may not be sufficient in mitigating.

Nevertheless, the court often finds itself in a situation whereby it must perform the duty of interpreting the constitution whether or not the answer to the question may have a political effect. This was recently experienced in Nigeria in the case of A.G. Zamfara & Ors. v. A.G. Federation and Ors (2023).

The court in plethora of cases in Nigeria had opportunities to further entrench constitutional democracy and the political spaces in the country but often resist that clarion call by avoiding situations that may plunge it into the muddy waters of political idiosyncrasies of political gladiators notorious for manoeuvring powers inherent in a constitutional democracy to the detriment of collective national interest and aspirations.

A Comparative Analysis of the Concept in America, U.K., Ghana, South Africa, and Nigeria

To best appreciate what the doctrine of judicial avoidance of political question is, it is important to do a comparative analysis of the doctrine in some common law jurisdictions.

In America, the doctrine is constitutionally enshrined in the constitution under the justiciability and non-justiciability rule. In the case of Oetjen v. Central Leather Co.iiiit was held that issues bothering on the conduct of the states in relation to foreign interest are basically within the confines of the executive and the legislative arm, therefore within the political spheres to which the court has no business.

This represents one of the earliest known instances of testing of the rule in America despite the age of its democracy. It is also clear that the court in America as in few other jurisdictions are often more motivated to apply the rule in matters relating to the executive than to matters affecting the legislative branch. One of the rare applications of the rule to the legislature was in the novel case of Nixon v. United States.iv American court in recent time appears to have suddenly lost some of its courage as the bastion of constitutional democracy by failing to intervene in the matter affecting the cancer known as gerrymandering or redistricting that is endemic in American politics as depicted in Rucho v. Common Cause (2019)v

In the United Kingdom, the foundation linking the doctrine of political question and its avoidance to non-justiciability has its root in Great Britain. Prior to 1984, all cases involving royal prerogatives were categorically exempted from judicial review as observed by Lord Sumption. Judicial activism especially per Lord Diplock, led to the turning point witness in the celebrated case of Civil Service Unions v.

Minister of Civil Service (1985)vi otherwise known as the GCHQ case. Since then, the House of Lords have had occasions to question the legitimacy of the action of cabinet by way of review and a classic instance is comprised in the 2019 Miller’s caseviiwherein the court disagreed with the political question argument of the then British Prime Minister in his attempt to prorogue Parliament for weeks in the buildup leading to the end of a possible no-deal Brexit date. The courts rightly held that there was no legitimate reason for the Prime Minister’s actions and accordingly invalidate the propagation as unlawful.

The apex court of our West African neighbour, Ghana, recently, per Kulendi JSC, in Justice Abdulai v Att. Gen decided in 2022, affirms the view that the court has persistently on preponderance of the authorities long held by it, that the political question doctrine does not apply within its jurisdiction. In other words, the constitution of that country has no applicability as stated in Amidu v President Kufuor 7 Ors.viiiThere has been a constant attempt to introduce the doctrine into the judicial lexicon of that country as recognised by a number of cases.

The court in Ghana derives the impetus to jettison political avoidance questions from the provision of Article 2 of the Ghana Constitution of 1992. Many scholars tend to agree with the judges who on few occasions ruled contrarily to this view but insist that the doctrine is applicable in Ghana.

Amongst this scholar is Robert N. Ardey Clegg who is of the view that political question doctrine are silently in action even in the Ghanaian Constitution citing instances of the powers of removal of the president. Failure of the president to carry out his function in tandem with the said article may be a ground for removal.

Clegg further observed that the Supreme Court does not itself have the power of removal of the president as that power is tactically committed elsewhere pursuant to Article 69 of the Constitution. I find myself in agreement with this radical view more so as the constitution also contains the same Directive Principles of State Policy which is present in the Nigerian constitution without the ouster clause inserted in the Nigerian version. Therefore, the problem in Ghana appears to be how to apply the doctrine rather than the question of its existence under their constitution.

To be continued tomorrow
Fayemi, dolufayemi@gmail.com is a lawyer based in Lagos.