The Judiciary: the Political Question Doctrine and Justiciability, By Kayode Oladele

There is a general perception, particularly amongst non-lawyers, about the universality of the jurisdiction of courts and that their conceivable limitations to wide discretionary powers are those either directly imposed by the enabling law or the Constitution or by the court’s rules of practice and procedure, which may define the threshold and upper limit of the scope of their jurisdiction.

The common belief also is that the courts will provide relief for every wrongful act. Indeed, every law student in their first year in college would have heard the often cited legal maxim of the late erudite scholar, Professor Prosser: “For Every wrong, the law provides a remedy” (Ubi jus ibi remedium) and there must always be an available forum for the adjudication of all complaints or petitions. However, it must be emphasised here that apart from the fact that courts must have jurisdiction over the dispute they are called upon to adjudicate, another very germane requirement is that there must be an actual dispute or controversy between parties over their legal rights that must not only be justiciable at the time of the conflict, but must not also have been mooted when such dispute is brought before the court for adjudication. In addition, such disputes must be apposite for judicial intervention and be capable of being resolved by the courts.

It is important also to note that some actions are beyond the reach of the courts and this is as a result of the limitations placed on the powers and jurisdictions of courts by the Constitution. For instance, justiciability is hinged upon the scope of judicial powers and jurisdictional limitation. See Article III Section 2, Clause 1 of the United States Constitution, often referred to as Case and Controversy Clause and Section 6 of the 1999 Constitution of Nigeria. Also, under the 1999 Constitution of the Federal Republic of Nigeria, Chapter II (Fundamental Objectives and Directive Principles of the State Policy, which were copiously copied from the provisions of the 1979 Constitution) consists of a long list of the fundamental obligations of the government, which also include the political, economic, social, educational, environmental and foreign policy objectives. Despite the laudable objectives and notwithstanding the fact that the Constitution states in section 13 thereof that it “shall be the responsibility of all organs of government and all authorities exercising legislative, executive and judicial powers to observe and apply the provisions of the chapter of the Constitution”, this provisions are nonetheless, non-justiciable, and fall outside the purview of the judicial powers and are, therefore, not enforceable.

It simply means that no one can assert his or her interest in these objectives and no legal right can arise from their non-implementation. Even though, the courts may assume jurisdiction to entertain any suits arising therefrom, the scope of jurisdiction and power of the courts are limited; hence, the judiciary cannot roam, at large, to enforce compliance in violation of section 6 of the 1999 Constitution, which states, in part, that (6) “the judicial powers vested in accordance with the foregoing provision of the section (b) shall not, except as otherwise provided by this constitution, extend to any acts or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objective and Directive Principles of the State Policy set out in chapter II of this constitution”. We should compare this with the provisions of Chapter IV (fundamental rights), which consists of the list of the justiciable inalienable rights that are universally safeguarded, constitutionally guaranteed and enforceable by courts.

Closely related to the doctrine of justiability is another very important judicial doctrine which had its origin in American jurisprudence and was created by courts as the wider concept of justiciability; the political question doctrine. Courts have held that “it is emphatically the duty of the judicial department to say what the law is” but “some questions in their political nature” are beyond the powers of the court to adjudicate. The courts have further held that “political question is essentially a function of separation of powers” and “excludes from judicial review those controversies which revolves around policy choices and value determinations” (Marbury v Madison 5 U.S(1 Cranch) 137,177 (1803), (Baker v Carr , 369 U.S, 186, 217 (1962), (Japan Whaling Association v. Am. Catecean Soc’y. 478 U.S 221.230 (1986).

The leading case on the doctrine is Baker v. Carr, 369 U.S. 186 (1962) where the U.S Supreme Court held that: “Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government, or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question”. (p. 217).

A Nigerian case further illustrates this position. On December 2, 2010, an Abuja High Court declined to compel the Peoples Democratic Party (PDP) to enforce its controversial zoning arrangement and struck out the suit seeking also to stop the incumbent president, Dr. Goodluck Jonathan from contesting for the same office on the platform of the Party in the 2011 presidential elections. The plaintiff, Alhaji Sani Aminu Dutsima brought this action against the PDP and its national chairman, Chief Okwesilieze Nwodo, before the high court, after the PDP refused to implement the zoning arrangement as contained in Article 7.2 (c) of the Party’s Constitution. He contended amongst others, that the National Chairman of the Party had championed the violation of the Party’s constitution in order to pave way for Dr. Jonathan, who is a Southerner, to contest for the president of the country on the platform of the party, contrary to the provision of Article 7.2 (c) of the Party’s constitution on zoning. He argued further that under the zoning arrangement agreed upon by members and enshrined in the Party’s constitution, the northern region of the country still had till 2015 to relinquish presidential power to other regions. He, therefore, prayed the court to enforce the agreement and the provisions of Article 7.2 (c), the Party’s constitution on zoning principle, in relation to the power rotation.

In his ruling, the chief judge of the Federal Capital Territory, Justice Lawal Hassan Gunmi, held that although Article 7.2 (c) of the PDP constitution, 2009, as amended, recognised the principle of zoning and rotation of party and elective offices, but “the power to nominate and sponsor candidates to an election is vested in a political party and the exercise of this right is the domestic affair of the party.” The Court in dismissing the case further held that the provision of the party’s constitution sought to be enforced in court dwelt on a political question that was non-justiciable, noting (emphasis added), however, that the onus was on the party to respect the provisions of the said Article 7.2(c) because it was subsisting and binding on the party, its organs and members.

What this boils down to, from the point of view of the justiciability doctrine, is that since Article Article 7.2(c) of the PDP’s constitution is biding in honour (morally) only and has no force of law, it can be said to be part of the normative natural law, a gentleman’s agreement of sort, inserted into the body of the PDP constitution as a prescription for the behaviour of the party in relation to power sharing. In the early stages of jurisprudence, there was no discernible difference between law and moral but early scholars were quick enough to distinguish between both, even though they have some areas of correlation. In today’s context, therefore, the definitions of both are quite distinct and may not be used interchangeably.

In other words, what is actually legal and enforceable is different from what ought to be legal (morally right) and appeals only to the conscience and moral values. Article Article 7.2 (c) has a coloration of natural law and moral agreement, and the fact that it was inserted into the PDP’s constitution does not make it legally binding and justiciable, especially if it is inconsistent with the provision of the normative positive law (the Nigerian constitution) and law proper, as opposed to moral laws. It is neither permissible for a court to nourish the substance of normative natural law with the power of normative positive law, nor acceptable to give normative natural law a coloration of normative positive law without committing a judicial sacrilege.

In a nutshell, “political question” is a decision by a court that an issue presented before it and raised about the conduct of public business is a political problem not suitable for determination by a court but that can be handled by other arms of government that are better equipped to deal with such matters. One very important feature of the political question doctrine is that under the rule, a judge may choose to dismiss a case on the ground that such a matter presents a political question, even if the court has jurisdiction over the matter. And because what constitutes a political question has no precise definition, it is strictly at the discretion of the judge to determine.

In the same vein, political questions are generally regarded as being largely incompatible and fundamentally in conflict with the functions of the judiciary as the third tier of government, because such suits will call upon the courts to decide on non-justiciable matters for which the courts are ill-equipped to deal with. It is therefore, a question of competency as opposed to jurisdiction, even though, sometimes, it can be a combination of both. Thus, the court must conduct a thorough and “discriminating analysis” of the case presented before it in order to determine whether the issue presented involves a political question. For this reason, the rule is self-imposed by the courts; there is no constitutional provision that sets out a watershed or dividing line between apposite and unsuitable issues to be adjudicated upon by the court, but rather a discretionary outlet on the part of the courts not to draw themselves into superfluous controversies when deciding certain sensitive, unfamiliar and often problematic and peculiar national issues or muddy and “uncharted political waters”.

Without doubt, the courts are not the best forum for considering the “wisdom” behind the discretionary gentleman agreements amongst politicians for their political convenience and to accomplish their goals. Unfortunately, Nigerian courts are littered with many of such suits today and the judiciary is having a field day dishing out injunctions, orders and counter orders, even though the courts are not the appropriate forum to hear or adjudicate such disputes. Although the judiciary may be excited with its newfound roles in Nigeria’s political space, the practice of assuming jurisdiction over issues bothering on political question doctrine will definitely impact its independence and compromise its ability to dispense justice without fear or favour.

Source: Premium Times

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