With the greatest respect to the learned SAN, I do not agree with his views on this matter. The fundamental human rights of the shites under reference cannot be enjoyed to the detriment of the rest of our society. While conceding that we are in an over constitutionalized democracy, the basic duty to secure lives and property remains that of the executive. It is the duty of the Judiciary to vet the actions of other arms of Government. The appropriate court has thoroughly vetted the application of FGN to have the group proscribed together with the supporting affidavit and granted the reliefs sought. There is nothing unconstitutional or illegal about the exercise of the powers vested in a court of law by such court.
According to Ran Hirschl, a professor from university of Toronto, the world is witnessing a transition to juristocracy- the transfer of power from representative institutions to judiciaries. Nigeria is no exception in this regard. Section 6 of our constitution has laid down that foundation. It allows for active judicial review. The learned professor added that national high courts and tribunals have become increasingly important, even crucial, policy-making bodies.
In the United States, which is the acknowledged flag ship of constitutional democracy, there is hardly any moral, political,or public policy controversy in constitutionalism that does not not sooner or later become a judicial one.
The nature of democracy itself makes it imperative to draw up a set of procedural governing rules and decision- making processes which all stakeholders and political actors are required to accept as binding. The stability of democracy everywhere presupposes the existence of a Judiciary to serve as impartial umpire in disputes concerning the nature of the rules and the compliance level with such rules by all stakeholders and policy actors. Above all, judicial review is a necessary component of viable democratic governance in a political system, whether federalist, confederationist or unitary in nature.
It is therefore in this regard, that one can safely argue that a government policy supported by judicial review cannot by any stretch of imagination be regarded as unconstitutional and illegal. Until such judicial decisions arising from preceding judicial review are upturned by superior courts, they remain legal and constitutional.
My humble view.
Dr. West Idahosa an Abuja Based Legal Practitioner, is a public affairs analyst and a former member of the House of Representatives.