Like in other democracies, the Nigerian Constitution is dynamic only because sometimes it fails to address emerging conflicts which can only be resolved through judicial interpretation or subsequent legislative actions. However, when such conflict is between the political arms of government, that is the executive and the legislature, the “checks and balances” embedded in the constitution can themselves form a barrier rather than a remedy to the ensuing gridlock.
Such is the case in the current controversy where the Executive has dragged the National Assembly to the Supreme Court seeking an injunction against a legislative action to override the President’s refusal to assent to the amendment. The current National Assembly had passed and submitted the 4th Constitutional Alteration Bill to the President for his assent; the most controversial aspect being the provision that would exclude constitutional amendments from presidential assent. The President has withheld assent stating among other reasons that there “was no credible evidence” that the amendment provisions of the Constitution were followed in the process to pass the controversial. In addition to this refusal, the President has headed to the Supreme Court to prevent a re-passage of the bill among other reliefs. The ensuing gridlock has instigated many comments; however, issues of whether a judicial resolution to the controversy should be legally attainable and whether the judiciary should even have jurisdiction on this type of controversies have remained largely.
It is perhaps tempting to assume that controversies between the political arms of the government should be punted automatically to the judiciary, the other “co-equal arm” for it to demarcate the legal responsibilities between the other two arms; such position however may lack support in simple logic and judicial antecedents in other progressive democracies. True, the Nigerian judiciary frowns at relying on foreign constitutional decisions especially where the issue can be resolved with cogent and logical interpretations. Such was the circumstances when the very necessity of a presidential assent to a constitutional amendment was challenged by Mr. Olisa Agbakoba, SAN, in 2010. Mr. Kayode Oladele, now a new member of the House of Representative, and other commentators, relying on the US constitutional amendment process and the landmark US case of Hollingsworth v. Virginia, 3 U.S. 378 (1798), warned that requiring a presidential assent where such was not expressly required by the Constitution, was dangerous because it would empower one person, the President, to veto a two-third super-majority vote of the National Assembly and the superior will of Nigerian majority as represented by the required approval resolutions of two-thirds of the States’ Houses of Assembly (“Constitutional Amendment Requires No Presidential Assent”; nigeriavillagesquare.com; August 2010). The Federal Court ruled in support of the presidential assent in spite of the warning. Although, that case is distinguishable because it required the Court to simply interpret a constitutional provision compared with the current controversy which as a more serious aspect requests an injunction a constitutional responsibility to override a presidential assent if the National Assembly so chooses. Undeniably however, the current gridlock exemplifies the harm that Mr. Oladele and those prior commentators warned us against. The situation thus makes it more crucial to acknowledge that our constitutional travails are hardly novel because similar circumstances had been successfully resolved in other jurisdictions, especially in the US upon whose constitution ours is purportedly based; so a readjustment is imperative in recognizing certain tested but “foreign” fundamental principles in the judicial approach to resolving constitutional logjam of this nature.
By choosing the Court option, the Executive obviously believes that the Courts will provide relief for every constitutional complaint against the National Assembly. However, it is a universal consideration that the jurisdiction of the Court in this regard is incomplete unless the matter is ripe, having an actual justiciable dispute or controversy between the parties, which is not mooted, and which is capable judicial intervention and resolution. Although our Constitution is not equipped with a provision similar to Article III of the US Constitution “case…and controversy” clause under which the US judiciary normally sidesteps involvement in “unripe” matters and determines justiciability, yet we can take a cue from other traditional barriers that the US Courts have used in preventing itself from becoming an “an arbiter of inter-branch disputes between Congress and the White House”. Fundamentally, our Constitution mimics the US Constitution especially as it concerns the doctrine of separation of powers; therefore, it is reasonable to consider in this respect the method by which the US judiciary has restricted itself into respecting the fundamental objectives of the separation between the three “co-equal” arms of the government and determines when it is necessary to intervene in a dispute involving the political arms especially when it concerns the legitimate exercise of their constitutional roles. One of such restrictions is that the US judiciary will shun the adjudication of what it terms a dispute of political question between the Congress and the White House. In this context, “political” does not mean partisan politics, but that the controversy presented requires a political solution rather than a judicial one.
In this regard, the US 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 adjudicatory powers of Court; and that “political question is essentially a function of separation of powers” which “excludes from judicial review those controversies which revolves around policy choices and value determinations” (Marbury v. Madison 5 U.S. 137,177 (1803); Baker v. Carr, 369 U.S., 186, 217 (1962); Japan Whaling Association v. Am. Catecean Society; 478 U.S. 221, 230 (1986)). Specifically, in Baker, the US Supreme Court ruled that “…political question is found (in) 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 non-judicial 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” (Baker; at 217). Going by this standard, and without prejudice to the decision of the Federal Court in the 2010 matter, the current dispute between the Executive and the National Assembly seems to fall in the domain of non-justifiability in two respects; that the dispute is not ripe for judicial intervention and it is a dispute more appropriate for political resolution rather than a judicial decision. The reasons are not far fetched.
It is uncontroverted that legislative powers belong to the National Assembly, and if the Executive for any reason disagrees with a bill in the exercise of the legislative power, withholding assent to such bill is the only remedy constitutionally available to the Executive. In reacting to such withholding of assent, the only discretionary option available to the National Assembly is to override the withholding of assent by passing the bill with a two-thirds majority (See Sections 58(4) and (5) 1999 Constitution, as amended). Though it may have indicated the intent to override the withholding of assent, the National Assembly is yet to act in that regard; therefore, as it stands, the constitutional amendment bill at issue has been killed by the withholding of assent. Until resuscitated by a re-passage, any challenge to the alleged initial unconstitutional legislative process is an exercise in futility because the Court cannot build something on nothing. So the matter is not ripe for adjudication until the National Assembly re-passes the bill and it become law. At such time, the Executive, armed with constitutional power to implement the law, would have justiciable grounds to challenge the validity of the legislative process because a law then exists as the basis of the controversy.
Apart from the substantive suit, the same argument applies to the injunction sought by the Executive against the National Assembly to prevent a re-passage vote on the constitutional amendments pending resolution of the substantive suit. Injunctions are essentially used to prevent and impending or unavoidable harm to the subject matter of a suit. Of course, there are many provisions in the amendment ostensibly affecting private rights identified by the President to the National Assembly as reasons to withhold his assent, but such harms exist only in the abstract until the re-passage of the bill. Those harms cannot occur with a bill already killed by the withholding of assent. Additionally, the singular act of re-passing the bill by the National Assembly cannot in any form trigger any proximate harm unless the Executive exercises its power to implement what has become the law consequent to the re-passage. Essentially, the Executive does not need judicial intervention to prevent any harm from the re-passage of the bill because it controls the power of implementation.
Further, the dispute is more appropriate for political resolution than a judicial one because even if the Court ignores the responsibility of respecting a discretionary action of a “co-equal” arm of the government, and rules in favor of the Executive, its decision will be ineffective practically against the basic legislative authority of the National Assembly to act further in favor of, or against, the potion of the Executive. In that regard, the National Assembly may simply ignore the decision; otherwise, it may fake compliance and still act perversely by passing the same bill all over again, creating further gridlock and daring the Executive to repeat the withholding of assent. If such, occurred, then the very purpose of the judicial intervention is defeated.
In the alternative, instead of this preemptive lawsuit, the Executive should have engaged any of the variety of available political weapons to convince the National Assembly against the re-passage of the bill. So, it seems mischievous when the Executive inappropriately attempts to involve the judiciary in disputes of pure political nature. Such temptation exists especially in the absence of provisions addressing the justiciability of such disputes between the political arms. Be that as it may, the Court, by any means necessary, in its wisdom, must respect the constitutional separation of powers between “co-equal” political arms of the government and remains above the fray by relying on standards traditionally used in similar jurisdictions in order to restrain itself from becoming a tool to achieve the political objectives of one political arm against the other. When such standards are applied, it is doubtful whether any suit challenging the legislative procedure of the National Assembly can pass the justiciability muster.
Muyiwa Sobo writes from Abeokuta