Judicial Review and Justiciability in Nigeria

Introduction

Judicial review in Nigeria is the power of the courts to review the constitutionality and legality of legislative and executive action. This power, essential to the rule of law and the separation of powers, enables the judiciary to ensure that all governmental action conforms to the Constitution and the law. The concept of justiciability defines the categories of disputes that courts may adjudicate, distinguishing between justiciable rights that courts can enforce and non-justiciable policy objectives that are not subject to judicial enforcement.

Constitutional Basis

Section 6 of the 1999 Constitution vests judicial power in the courts, encompassing the authority to interpret the Constitution and to determine the validity of legislation. Section 1(3) provides that the Constitution is supreme and that any law inconsistent with it is void to the extent of the inconsistency. These provisions establish the foundation for judicial review of legislation.

The Supreme Court in Lakanmi v A-G (West) (1970) affirmed that the courts have inherent jurisdiction to review the validity of legislation, including the power to determine whether legislation conforms to the Constitution. This power cannot be ousted by legislative enactment, even where the Constitution itself purports to exclude judicial review.

Scope of Judicial Review

Judicial review extends to:

1. Legislative Action: Courts may declare legislation unconstitutional and void
2. Executive Action: Courts may review administrative decisions for legality, procedural propriety, and reasonableness
3. Constitutional Interpretation: Courts have the final authority to interpret the Constitution
4. Fundamental Rights: Courts enforce the fundamental rights guaranteed in Chapter IV of the Constitution

Justiciability

Justiciability determines whether a dispute is appropriate for judicial resolution. A matter is justiciable if it involves legal rights and obligations that courts can determine and enforce. Non-justiciable matters involve political questions, policy choices, or constitutional provisions that are not enforceable by the courts.

Non-Justiciable Provisions

Chapter II of the Constitution (Fundamental Objectives and Directive Principles of State Policy) is expressly non-justiciable. Section 6(6)(c) provides that the judicial powers vested in the courts shall not extend to any issue or question as to whether any act of any authority or person is in conformity with the Fundamental Objectives and Directive Principles.

However, Nigerian courts have found indirect ways to give effect to Chapter II provisions, particularly by interpreting justiciable fundamental rights in light of the objectives stated in Chapter II. In Gbenrre v Shell Petroleum Development Company (2005), the court held that the right to a clean environment, while stated in Chapter II, can be enforced through the fundamental right to life in Chapter IV.

Standing (Locus Standi)

Locus standi determines who has the right to seek judicial review. The traditional rule required the applicant to have a sufficient interest in the matter. The Supreme Court in Fawehinmi v President, FRN (2007) liberalized the standing requirement for public interest litigants, permitting individuals and organizations to challenge governmental action affecting the public generally.

Grounds for Review

Nigerian courts recognize three classical grounds for judicial review of administrative action:

1. Illegality: The decision-maker acted without legal authority or exceeded their powers
2. Irrationality (Wednesbury Unreasonableness): The decision was so unreasonable that no reasonable authority could have reached it
3. Procedural Impropriety: The decision-maker breached the rules of natural justice or failed to follow prescribed procedures

Limitations on Judicial Review

Several limitations constrain the exercise of judicial review:

1. Ouster Clauses: Legislative provisions purporting to exclude judicial review are strictly construed and generally ineffective to exclude review of fundamental rights or jurisdictional errors
2. Political Question Doctrine: Courts decline to adjudicate matters involving non-justiciable political questions
3. Ripeness and Mootness: Courts require disputes to be ripe for adjudication and not moot
4. Exhaustion of Remedies: Courts may require applicants to exhaust alternative remedies before seeking judicial review

Conclusion

Judicial review is a fundamental feature of the Nigerian constitutional system, enabling courts to enforce constitutional supremacy and protect fundamental rights. The distinction between justiciable and non-justiciable matters defines the boundaries of judicial power, with courts respecting limits imposed by the Constitution while guarding their role as guardians of the rule of law.