By Festus Ogwuche
American constitutional scholar Kermit Roosevelt’s new book, Advanced Introduction to the U.S. Supreme Court offers Nigerian constitutional lawyers something more valuable than an account of the American judiciary. It provides an institutional vocabulary about our own Supreme Court regarding what it means for a court to be “supreme” in the constitutional philosophy of apex judicial power.
Roosevelt’s starting point is important. The United States Supreme Court evolved from a relatively weak tribunal into one of the most powerful institutions in the American constitutional order. He examines it not simply as a court, but as the final voice in constitutional meaning and an institution whose relationship with democracy and equality has been inconsistent.
He warns against two simplistic perceptions and formal distinctions between judges as heroic guardians of the Constitution and judges as politicians in robes. The Court, he argues, must instead be understood as a powerful constitutional institution whose design and functions require continuous democratic scrutiny.
This perspective brings Marbury v Madison into sharp relief. In Marbury, the United States Supreme Court famously established judicial review even though the Constitution did not expressly confer upon federal courts the power to invalidate unconstitutional governmental action. Judicial review consequently emerged through constitutional reasoning and institutional assertion.
he historical significance is profound, that the Court did not merely exercise a power that was plainly handed to it, it articulated a doctrine that profoundly altered the distribution of constitutional authority.
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Nigeria presents a strikingly different starting point. The 1999 Constitution expressly establishes the Supreme Court and confers upon it extensive appellate and constitutional jurisdiction.
Section 235 provides that no appeal lies to any other body or person from any determination of the Supreme Court, while section 287 requires its decisions to be enforced throughout the Federation. But section 1 simultaneously declares the Constitution itself supreme and binding on all authorities and persons.
This produces a distinction that Nigerian constitutional discourse has not sufficiently emphasised, that constitutional supremacy is not the same thing as judicial supremacy, and judicial supremacy is not the same thing as judicial finality.
The Supreme Court is supreme within the judicial hierarchy because the Constitution makes its judgments final. It is not, however, sovereign over the Constitution. Its jurisdiction is derivative; its authority originates in the constitutional instrument whose meaning it is empowered to interpret.
The deeper difficulty lies in what happens after the Court enters the political arena through constitutional and post-election adjudication. Elections are the clearest expression of popular sovereignty in a representative democracy. But an election contested through the judicial process may ultimately produce a situation in which the legal entitlement to exercise political power is determined not by the electorate but by judicial decisions.
This does not however make judicial review inherently undemocratic, as Constitutional democracy necessarily places some questions beyond ordinary politics. However, courts must protect constitutional rights, and the integrity of the electoral process. But Roosevelt’s institutional approach requires a further question regarding when judicial correction of an electoral process becomes judicial displacement of the electorate’s political choice?
That question is particularly significant in Nigeria because the Supreme Court is the final judicial destination in electoral disputes. Its judgment may determine whether a President or Governor retains office, whether an election is valid, or whether another person becomes legally entitled to occupy an office for which millions of citizens have voted.
Prof. Roosevelt is not recommending that we imitate the American system but rather imploring us to see our own system differently in that institutional mirror. The concern here is whether Nigeria’s constitutional architecture adequately reconciles judicial finality with popular sovereignty. This is particularly important where the Court’s post election remedies fails to accord with the political consequences of the people’s franchise.
The problem, therefore, is not simply whether a judicial decision is legally final, a question well settled by Section by 235. The more difficult question is whether every exercise of final judicial power necessarily produces a justice outcome consistent with the democratic sovereignty from which constitutional government derives its existence and legitimacy.
The distinction is not simply theoretical. In Amaechi v INEC, for example, the Supreme Court intervened decisively in the consequences of an electoral nomination dispute and held that Amaechi, rather than Celestine Omehia, was the rightful candidate of the PDP, notwithstanding the fact that Omehia had actually contested the election.
The decision demonstrated the Court’s capacity to use legal rules to protect electoral and intra-party justice exposing the extraordinary constitutional power of an apex court to determine political entitlement after the electorate had already voted.
That paradox lies at the heart of the Nigerian problem. Judicial intervention can sometimes rescue democracy from electoral manipulation and at other times, the same institutional power can appear to displace the political choice that democracy was designed to express. The justice-content of judicial power therefore becomes as important as its formal legality.
Roosevelt’s concern about institutional legitimacy is particularly instructive here. His recent work on the U.S. Supreme Court reforms argues that when the Court’s disposition becomes significantly detached from democratic outcomes, the institution may become prone to internal institutional and compositional conflicts and produce decisions that raise eyebrows. He describes the danger as “minority capture.”
Nigeria’s problem is not identical to America’s. The American debate centres heavily on appointment, tenure and the relationship between judicial independence and democratic responsiveness, while the Nigerian version has an additional and distinctive problem which placed the Supreme Court as a principal constitutional umpire in a deeply plural federation and a decisive actor in electoral disputes.
Consequently, the Nigerian Supreme Court must be judged not only by the formal finality of its judgments but also by the constitutional justice they produce.
A court cannot become institutionally infallible merely because its decisions are final. Finality terminates litigation; it does not necessarily establish substantive correctness. Nor should the doctrine of precedent transform judicial authority into an irrebuttable claim to constitutional wisdom. The Constitution is supreme precisely because every institution, including the Supreme Court, remains subject to it.
The proper constitutional conception is therefore that the Supreme Court is supreme, but not sovereign. It is supreme as the apex judicial institution and final in its adjudication of controversies within its jurisdiction. It is not sovereign because sovereignty does not belong to the Court, but to the constitutional order and, ultimately, to the people whose constituent authority gives legitimacy to that order.
Roosevelt’s great contribution is to remind us that the legitimacy of a Supreme Court cannot be measured solely by the correctness its judges attribute to their own decisions.It must also be assessed institutionally: by the Court’s relationship with democracy, equality, constitutional fidelity, institutional limits and the people.
Finality is required for judicial certainty and institutional functionality and may shut the courtroom door but never close the constitutional conversation.
For Nigeria, this is an urgent constitutional conversation, and the question is no longer simply whether the Supreme Court is supreme but whether the manner which its supremacy is exercised preserves the distinction between judicial authority and popular sovereignty.
A Supreme Court that protects the Constitution protects democracy, but one whose finality is treated as a substitute for constitutional accountability risks confusing the authority to interpret the Constitution with the sovereignty from which the Constitution itself derives.
That is the line Nigeria must never allow its apex court or its constitutional lawyers to erase or diminish. Judicial finality is necessary for the administration of justice while constitutional fidelity is necessary for the legitimacy of judicial power. Roosevelt’s theory reflects the doctrinal crossroad between American constitutional principles, and the Nigerian notion of apex judicial supremacy and its justice content that challenges the legitimacy of judicial finality. The pertinent question here becomes how far can an apex court’s constitutional authority extend before the distinction between interpreting the people’s Constitution and exercising the people’s sovereignty becomes blurred?
That is precisely the Rooseveltian tension and it is much more intellectually interesting and judicially discerning than simply saying that the Supreme Court is too powerful.
Dr Ogwuche is the President, Campaign for Social Justice and Constitutional Democracy in Africa and based in Port Harcourt. He can be reached via: festusogwuche@gmail.com
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