By Professor Ben Nwabueze
Nigeria is a country where strange things happen, where a Court of Law, whose jurisdiction is limited to the application of law in dispute before it, can act on the basis of a Bill that has not yet become law; in order words, rendering an advisory opinion, which a Court of Law under our system has no authority to give, that the eventual enactment of the Bill into law will be unconstitutional, null, and void. This indeed is an amazing decision to come from a Federal High Court in this country.
I quote below what I wrote on the issue in my book – Nigeria’s Second Experiment in Constitutional Democracy (1985), pages 352 – 353.
“The translation of power into action is preceded by a preliminary process of thinking out and formulating a policy. This process is not regulated by law. The Court of Appeal of Zambia has accordingly held that the mere announcement by the government of an intention to introduce legislation cannot be a violation of the Constitution, castigating as ‘absurd’ any suggestion that ‘the legislature intended the courts to be vested with the power to pronounce in advance that if the government pursued an expressed intention, legislation on the lines of that expressed intention would be ultra vires the Constitution. The consequences of such a construction would be truly chaotic.’ Nkumbula v. Att-Gen, for Zambia, Appeal No. 6 of 1972, of 4/12/72 per Baron J.P. (as he then was).
Even when the intention has been formulated into a bill no question of law arises at that stage, for a bill is not law; as such it cannot be an unlawful exercise of the power of law-making inasmuch as it may be abandoned or amended before the processes of its translation into law are completed, –Cf. Pugh, “The Fed declaratory remedy: justiciability, jurisdication and related problems’, Vand. L. Rev., 1952, 79, 94 – 95 – it cannot, affect the rights of any persons. The High Court of Australia thus rightly dismissed an application to prevent a bill passed by the federal legislature from being presented for the Governor-General’s assent, on the ground that the bill was beyond the powers of that legislature. Hughes and Vale Pty. Ltd v. Grair (1954), Argus L.R. 1094 . In his judgment in the case, Chief Justice Dixon rightly criticized as incorrect a decision of the Supreme Court of the state of New South Wales, which granted an injunction to restrain the presentation of a bill that had been passed by the state legislature but was not submitted to a referendum as required by law. Trethowan v. Peden (1930), 31 S.R. (N.S.W.) 183. The decision was induced by the peculiar provision of the Constitution which in terms prohibited presentation for royal assent before approval at a referendum. For a review, see Cowan, L.Q.R. 71, p. 376. The Bendel State High Court was thus clearly in error in declaring as ‘totally illegal’ a bill under consideration by the State House of Assembly for the purpose of establishing local government councils, and in restraining the House and all its servants, agents or functionaries from taking further steps in the process of enacting the bill. Att-Gen., Bendel State v. House of Assembly, Bendel State, Suit No. B/166/82 of 9/7/82 by Ekeruche C.J. Equally erroneous and unwarranted was the order by the Kwara State High Court restraining President Shehu Shagari from assenting to a bill to establish a national advisory council on the mass media through an amendment to the Electoral Act, 1982.” Ex parte Kwara State Printing and Publishing Corpn., per Kawu C.J., National Concord, 30 June 1983.
Professor Ben Nwabueze
Lagos, 15th March, 2018