The Hub

August 11, 2011

More on judiciary review

By Josef Omorionmwan
GIVEN the doctrine of separation of powers in our Constitution, the final word on the nature and limitations of governmental authority is generally supplied by the judicial branch of our government through judicial review.

This entails the power of the courts to determine that a statute or other acts of government is unconstitutional; that it does not conform to the limits set out in the Constitution. If any of the legislative, executive or administrative offices of government exceeds the limits of its authority, an appeal may be made to the courts to so declare.

In the broadest sense, judicial review includes not only the authority of the judiciary to determine whether governmental laws and actions are unconstitutional; it also includes the power to void those unconstitutional laws and acts.

The power to exercise judicial review is one of the most potent policy-making instruments in the hands of Federal judicial officers. That explains why, even with a most blithe legislature, we can remain rest assured that its objectionable actions cannot always escape the eagle eyes of the judiciary.

We have mentioned somewhere else that by the time the Appeal Courts restored the stolen mandates in Edo, Ondo, Ekiti and Osun states to their rightful owners, it became clear to the PDP and its co-travellers at the National Assembly that they were in deep trouble as their rigging apparatus had gone burst. This was when the National Assembly reached for its bag of tricks and the Electoral Act, 2010 came handy.

They took Section 140 (2) of the Act to shreds and came out with the scrap that although a candidate who has been denied his mandate could approach the Tribunal and Appeal Court for redress, the best he could get out of those places was a re-run.

The power to declare an outright winner was removed from the courts. A new Section 141 of the Electoral Act 2010 stipulates that: “Where an election tribunal or court nullifies an election on the ground that the person who obtained the highest votes at an election was not qualified to contest the election, the election tribunal or court shall not declare the person with the second highest votes as elected, but shall order a fresh election”.  It was now clear that the sixth National Assembly was walking justice on its bald head. Two things happened:

*The Action Congress of Nigeria, ACN, rushed to the Federal High Court, Lagos to complain that the National Assembly acted ultra vires its powers because the amendment to Section 140 (2) of the Electoral Act, 2010 offended the provisions of Sections 1 (3), 4 (8), 6 (1) (2) (6), 239 (1), 246 and 285 of the 1999 Constitution, as amended. At the same time, the Labour Party, LP, headed for the Federal High Court, Abuja to seek the nullification of Section 141 of the Electoral Act 2010.

*On June 30, 2011, Honourable Justice Okechukwu Okeke, sitting in the Federal High Court, Lagos agreed with the ACN that the National Assembly had acted ultra vires its powers. Besides nullifying the said Section 140 (2) of the Electoral Act, 2010, he restored the powers of the Tribunals and Appeal Courts to declare an outright winner once the candidate proves his case beyond doubt.

*Three weeks later, precisely on July 21, 2011, Justice Gabriel Kolawole, sitting in the Federal High Court, Abuja, held that the provisions of Section 140 (2) and 141 thoroughly offended the provisions of Section 285 (1) of the 1999 Constitution. He nullified the sections of the Electoral Act, agreeing that the National Assembly acted ultra vires its powers by seeking to limit the declarative powers of the Tribunals and the courts.

At times, judicial review has been attacked as undemocratic, particularly when exercised over legislative acts. Those laws presumably reflect the views of the people as expressed in their elected representatives.

How democratic is it for a small group of unelected people – at the Supreme Court level, about 20 justices; at the Appeal Court level, about five people; and at the High Court level, just a single individual – to be empowered to impose their opinions on the country or state to override the enactment of an entire legislature?

On balance, judicial review is quite democratic because the very Constitution on which it is based is the most fundamental instrument of the entire people.

Here, we shall quickly return to the provisions of Section 1 (3) of the 1999 Constitution, which establishes the supremacy of the Constitution over other laws: “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void”.

Alexander Hamilton (1755-1804) in The Federalist Papers No. 78 offered an explanation that has not been faulted till this day: “No legislative act contrary to the Constitution can be valid. The interpretation of the laws is the proper and peculiar province of he courts. A  Constitution is, in fact, and must be regarded by the judges as a fundamental law.

It therefore belongs to them to ascertain its meaning as well as the meaning of the particular act proceeding from the legislative body. If there should be an irreconcilable variance between the two, that which has the superior obligation and validity – the Constitution must be preferred to the statute”.

The journey has started. Our legislators must now be alive to the fact that any institution that allows itself to be overruled too often through the instrumentality of the judicial review must entertain and ask questions about its own legitimacy.