Judicial Approach to Justiciability Theory in Constitutional Democracies: Lessons for Nigeria

The United States, South Africa, and India in Focus

(NOTE: This is an introduction to a book)

In the course of research I conducted between 2017 and 2018 on “The Nature of Judicial Power and Justiciability Theory in Constitutional Democracies”, I had occasions to dissect the nature of judicial power generally and enquire into how this power is being used in selected jurisdictions that practice constitutional democracy. Indeed, unlike the legislative and executive powers that are particularly specified under various constitutions, judicial power is so wide that aside from its inherent jurisdiction, it also covers what the legislature and the executive make of their powers. For all intents and purposes, the various powers vested in each of the arms of government are meant to be employed to foster the system of government in operation. As against the perspectives of Nigerian judges, courts of other jurisdictions appear to be more conscious of the silent values of constitutional democracy for the system to prosper and be what it should be.

The theory of justiciability was developed to limit the power of the court in a number of ways. There have therefore been enquiries into the validity of the existence and the justification for the application of the theory. The emergence of this theory is traceable to certain reasonings of judges and the legislative arm in some respects. Courts have developed some principles such as ripeness, locus standi, mootness, political question, etc. to bring limitations to their power. The legislature and the draftsmen of the constitution alike have been hinted by the court of the need for restriction on the power of the court and thus make provisions in the constitution to outs the jurisdiction of the court on certain subjects. Chapter II and Part IV of the Nigerian Constitution and the Constitution of India respectively make wide provisions on the subject matters of ESCRs but under the heading of “Directive Principles and State Policy” with a provision ousting the jurisdiction of the Court on the subject matters covered.

Constitutional democracy has some unputdownable fundamental principles that are not only to be spoken of but to be cherished, upheld and defended by the various arms of the government. In a nation where this is not the case, the cannons of constitutionalism, fundamental rights, rule of law, separation of power, etc. which are indeed the branches, leaves and fruits of that vine called constitutional democracy would ironically wither away from the tree that bears them which is supposedly regarded as a constitutional democracy.  This is what happens whenever judges decline to hear matters that border on these principles on the ground that those matters are non-justiciable.

With particular concern with Nigerian judges’ approach to this theory, three doctrines are selectively treated in this book, namely, the Directive Principle Doctrines under the Nigerian and Indian Constitutions. There is an examination of what the various Constitution actually says and what the judges hold in the respective jurisdiction. The position needs to be as well juxtaposed with South African courts’ standpoints on the subject. Secondly, the Political Question Theory – its origin and liveliness today from that origin and what our Nigerian judges still hold. And lastly, the Principle of Locus Standi – What object particularly has this principle? Should it apply to public law questions stricto sensu or at all? What are those things that our judges are actually missing out on all their perspectives in declining to determine a matter that questions the constitutionality of legislation or executive orders on the ground that the applicant lacks the right to sue or possesses no special interest in the suit? Many questions are certainly begging for answers!

Ariel Bendor[1] compares the U.S. and Israeli experiences of justiciability theory from both normative and institutional standpoints. The three doctrines selected for this book need to be evaluated from those standpoints, too. Enquiries into these areas and putting them squarely to the litmus test of the theory depict that Nigerian judges’ perspectives on those restricting doctrines need redirection not only to foster constitutional democracy but also to benefit the common man who the system is meant to serve and protect.

[1] Ariel L. Bendor, “Are There Any Limits to Justiciability? The Jurisprudential and Constitutional Controversy in Light of The Israeli and American Experience”, Industrial, International and Comparative Law Review, Vol. 7 No. 2 (1997)

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