Paul O. Anozie

The Supreme Court is not final because it is infallible; it is infallible because it is final—Justice Chukewudifu Oputa

For those following the Imo State governorship case, with all the controversy and confusion it has generated, the idea of a possible “Judicial Review” looms large in the collective consciousness. However, the question of whether “Judicial Review” applies in the present Imo governorship imbroglio, is one question too many.

Law is to political theory what technology is to science; in both cases, the later seeks to extend the boundaries and apply the principles of the former, to practical or real-life situations. It is therefore logical that, in moments of ideological confusion leading to conceptual opacity, a descent into the epicentre of “the Sovereign Science” should be resorted to in order to take a fresh and accurate bearing toward a balanced and generally-accepted epistemological destination. In other words, in order to determine whether Judicial Review is applicable to this situation, a critical analysis of the concept of Judicial Review is very important.

What is Judicial Review? It is the power of the judiciary to review legislative and executive acts, and nullify those that are believed to contravene the constitution. In modern states, particularly in federal states (moreso in states with written constitutions) the judiciary is empowered by the constitution to review executive and judicial acts. Where executive or legislative acts run counter to the constitution, the court possesses the power to declare them null and void and of no consequence…Ipso facto, the power of Judicial Review given to the courts (particularly the Supreme Court) enables the Judiciary to act as Guardians of the Constitution against the possible inroads of the Executive or the Legislature.

It is important to note that though the legal ambience of the Judiciary, as provisioned by this political contraption, may be too large in states structured along the lines of the American System, (which is also practiced in Nigeria) it manifests in the British System in less overarching circumstances. In fact, the British doctrine of Parliamentary Sovereignty gives judges no power to review the constitutionality of laws, only the power to declare what they mean, which sometimes may be quite different from what Parliament intended them to mean. This automatically translates to a form of legislative supremacy which empowers Parliament to make laws on virtually any matter affecting the government. According to a notably exaggerated classic expression, “Parliament has the power to make laws on anything except, of course, the power to make laws which turn men into women!”


In summary, the role of the Judiciary in connection with the concept of Judicial Review is two-dimensional: In the first place, in written constitutions, the courts are constitutionally empowered to review laws made by executive or legislative authorities, with a view to determining their conformity with the provisions of the constitution, or their contribution to the welfare of the masses. In the second instance, in parliamentary democracies, the courts are empowered to interpret laws made by the Legislature, and by broadening, shaping, and resolving ambiguities, give birth to what is popularly referred to as judge-made laws.

Following from the above, the concept of Judicial Review does not presuppose a review, reversal or retrial by the Supreme Court of its own judgement; it rather refers to a trial by the Supreme Court of laws made by the Legislature or Executive.

It is now pertinent to ask if the Supreme Court has the power to depart from or overrule its previous decision. Nwebo strongly holds that the Supreme Court has ample jurisdiction and power to depart from and overrule its previous decision, like in Tegbowale V Obadina, while adding that the Supreme Court would do so with the greatest hesitation. Continuing, he stated that the underlying considerations for departing from previous decision by the Supreme Court are, inter alia, that the decision is impeding the proper development of the law or has led to results which are unjust, or undesirable, or which are contrary to public policy; are inconsistent with the constitution; are erroneous on points of law, or are capable of occasioning a miscarriage of justice and perpetrating injustice, as in Johnson V Lawanson (1971).

Most observers would agree that the Imo State governorship case meets some of the above criteria, and therefore urgently begs for a review, reversal or retrial. However, those who are aware of the disconnect between political theory and legal principles on this matter can understand why actors from both sides have little space in which to manoeuvre. Fortunately for those that are quick to explore where loopholes in legal provisions lead to judgements or decisions which run counter to “the spirit of the laws,” the fact that the 1999 Constitution (As amended) confers on the Supreme Court the power of finality of determination, and that the Electoral Act (2010) provides a time frame for adjudication of electoral matters which has long elapsed, will always be convenient technicality. Until we realise that the question of whether the Supreme Court can review its own judgement is neither embedded in political theory nor is it a generally accepted legal principle, it will continue to be confusion and controversy galore.

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