May 3, 2018

An innovation in judicial activism


Judicial symbol

By Josef Omorotionmwan

APPARENTLY, Hon. Justice Ahmed Mohammed, currently in the Abuja Division of the Federal High Court, has been listening in the direction of the more advanced democracies where the belief is that justice delayed is justice denied. In those climes, important cases, particularly those bordering on clarifications of constitutional questions, are disposed of expeditiously. We have seen cases where courts sat around-the-clock, and in less than 24 hours, the decisions were ready.

In such circumstances, election petitions are promptly disposed of so that only actual winners are sworn into office at inauguration.


But Nigeria’s case is totally different. We have seen cases where tribunals and the appeal processes lingered on and outlived the tenure for which they were intended. For example, in the Babangida Constituent Assembly, the morning we were holding the valedictory session, and doing all the back-slapping and exchange of addresses and telephone numbers was when  a “member” strayed into the International Conference Centre, waving court papers, indicating that he was the actual winner of one of the seats in then Rivers State. What a victory gone pyrrhic! Yet, to us, justice delayed is not justice denied.

All the same, justice fast-tracked is also justice betrayed. This is what Justice Ahmed Mohammed properly symbolises. In his new awakening, the learned Judge appears to walk justice on its head. He proceeds in error to throw his profound knowledge of the law and modern trends into the guillotine; and has landed in an entirely new area of judicial activism by annulling a Bill that is still passing through legislative processing.

By the literary theory of our Constitution, it is clear that the legislature makes laws; the laws are implemented by the Executive branch; while any matter of interpretation arising from the laws  are resolved by the Judiciary. These functions are properly spelt out in Sections 4, 5 and 6 of the 1999 Constitution. No where in the world has it been seen that anyone would go to court to stop the legislature from passing a Bill into law.

When a Judge proceeds in all haste to inquire into a matter that is yet at the stage of a Bill as distinct from an Act, his action cannot be known by any other name – he has unnecessarily meddled and made an unwarranted incursion into the legislative domain!

At first, it sounded like a mockery of the judicial process when the Accord Party approached the court, asking it to stop the National Assembly, NASS, from over-riding the proposed veto of the Bill passed by the NASS, aimed at amending the Electoral Act. Clearly, it was a case of asking the court to prevent the NASS from performing a duty legitimately assigned to it by the nation’s Constitution.

Admittedly, the Nigerian Constitution, or any Constitution for that matter, can only be a skeleton that merely sets out major thrusts, in broad outlines, the ways of conducting the affairs of a nation, leaving it to the Acts of Parliament (the NASS) to supply the necessary flesh to that skeleton.

The Nigerian Constitution vests in the Independent National Electoral Commission, INEC, the powers to conduct elections in Nigeria. In section 158(1), the Constitution goes further to equip INEC with a degree of independence in some specific areas, such as in making appointments and exercising disciplinary control over persons.

At no time, however, did the doctrine of Separation of Powers as enshrined in the Constitution envisage absolute independence in any branch or agency of government. Rather, the Constitution strives to create a situation of healthy inter-dependence among the federating units.

There are limits to independence. The fine details of how INEC discharges its duties cannot be found on the pages of the Constitution but in some pieces of legislations by the NASS of which the Electoral Act and its subsequent amendments form integral parts.

INEC does not make laws but it could be empowered by the NASS to make subsidiary rules and regulations for the smooth discharge of its functions. A delegated function cannot be higher than the delegating Authority. Therefore, any INEC rule that conflicts with the NASS Law automatically drops dead.

The issues of Nigeria’s general election stand clearly on a tripod – dates of elections; sequence of elections; and election cycles. While the determination of the dates of the immediate election is merely an administrative issue that requires no legislative enactment and should therefore be left within the purview of INEC, the same cannot be said about the more complex issues of sequence of elections and election cycles. These ones require legislative enactments and squarely belong in the NASS.

The opinion of the absolutists who claim that the NASS is an interloper when it comes to reordering the sequence of elections and establishing an election cycle takes some uncomfortable distance from legal realities; and it simply crumbles.

By his decision of last Wednesday, particularly in annulling a matter that is yet in the legislative assembly at the level of a Bill depicting the attitude of “Unborn tomorrow, dead yesterday”, Justice Mohammed has jumped into the band-wagon of the strict constructionists who claim that INEC’s independence on issues of election supersedes everything else. We may then ask: should this not include the need for the NASS to enact any law for INEC such as the Electoral Act? Shouldn’t INEC’s independence lift it above the need for appropriations? Put differently, why doesn’t INEC dip its hands in the public till and simply take as much money as it needs, thus bypassing the “Interlopers” on election issues? Or, better still, why should INEC approach the courts on election issues when it already holds absolute powers in its hands? Are the strict constructionists still listening?

Nothing in the foregoing vitiates the fact that the NASS should go about its constitutionally-assigned responsibilities. When a clean copy of the passed Bill has been presented to the President as required by law; and the President pocket-vetoes it based on Justice Mohammad’s “advice”, the NASS should go ahead to over-ride the President’s veto. That is the law!