Rethinking Judicial Activism Ideology: the Nigerian Experience of the Extent and Limits of Legislative-Judicial Interactions (original) (raw)
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International and Comparative Law Review, 2015
Authoritarian governments are by their very nature unconstitutional. Such government thinks of themselves as above the law, and therefore sees no necessity for separation of powers or representative governance. Constitutional democracy on the other hand, is however based on the notion of people's sovereignty, which is to be exercised in limited manner by a representative government. Accordingly, judicial activism in this paper is employed to establish the theory of popular participation of courts in the decision making processes through settlement of disputes, interpretation or construction of laws, determination of propriety of legislations, legislative and execution actions within the doctrine of separation of powers for the purpose of enforcement of the limitations in government on constitutional ground. Th is paper thus examines the concept of judicial activism, its legitimacy and as a mechanism for providing checks and balances in the Nigerian government. Th e paper demonstrates a game theory of judicial legislative interaction within their function and contends that the notion of judicial supremacy does not hold water because the legislature always has the second chance of invalidating the judgment of courts exercising the legitimate powers. Th e paper concludes that judicial activism in these countries is a veritable tool in advancing the compliance with the rule of laws on the ground of the Constitution.
AN EXAMINATION OF THE IMPACT OF JUDICIAL ACTIVISM ON DEMOCRACY IN NIGERIA
Benuch publication, 2023
The Constitution of the Federal Republic of Nigeria pursuant to section 6(6) establishes the power of the judiciary to exercise vast powers of judicial review from which judicial activism transmute in respect of the legislative and executive functions. The courts have the duty to uphold the law. The aim of this paper is to examine that it is more appropriate for courts to intervene against legislative aberration of the Constitution at least when reviewing ordinarily their action or legislation. The onus to intervene against legislative aberration does not only lies on the courts but also the on the public to bring beforehand and challenge provisions of the law that may be in contrast with the law on the rights of citizens and principles of democracy. This paper found that what constitutes the law in deciding a dispute may not be quite as clear as it seems or where the law, if pronounced as it is (either in legislations or constitutional texts) may lead to loathsome consequences. The judges can interpret the letters of the law liberally which is cited as judicial activism or intervention. This paper concluded that judicial activism provides a way for the laws of the Nigeria to change to fit the current norms of the citizenry of the country, and it provides a fast process for the creation of laws than the legislative arm of the government. This paper recommended that room should be given to judicial activism in Nigeria to enhance the development of law in Nigeria, and open new frontiers in our legal jurisprudence.
JUDICIAL ACTIVISM AS A VEHICLE FOR ADVANCING THE WILL OF THE PEOPLE IN ELECTION CASES IN NIGERIA
Abdullahi Soliu Dagbo, 2023
Democracy is widely recognized to be the best practice as the governments only emerge through the explicit consent of the people expressed by their votes. Direct electoral link between the people and their elected representatives is the cornerstone that guarantees the legitimacy of a democratic government; once the link is broken, legitimacy erodes. Hence, the will of the people is at the heart of democracy. Accordingly, this paper identifies judicial activism as a variable tool to advance the will of the people on the stage of democracy in Nigeria. The paper critically examines the concept of judicial activism, its tolerability and the necessity of the Nigerian court to activate activism in election disputes. The research goes to show that although the courts have braced up the challenges of time and realize the need to exhibit judicial activism, more needs to be done in respect to election cases. It concludes that the judiciary must step up and assert its role as a non-partisan umpire to restore electoral process to its democratic character.
Judicial Review and Judicial Supremacy: A Paradigm of Constitutionalism in Nigeria
2010
Th is paper examines judicial review and judicial power in Nigeria under the 1999 Constitution in relation to the constitution itself and in relation to the political branches of government. Th is is essentially to locate where lays supremacy between the branches and the judiciary particularly the Supreme Court with its fi nal appellate jurisdiction. Judicial review and supremacy of the judiciary had been of recurring academic discuss in some jurisdictions with written Constitutions, particularly the United States from where Nigeria largely borrowed its presidential constitutionalism. Th is thus suggests that there is a need to examine the controversy within the context of Nigeria's experience; is it really in the Constitution that creates branches of the government and that is proclaimed to be supreme over all authorities including the judiciary? Is it in the judiciary whose oversight function cuts across the political branches and whose interpretative decisions are binding on the constitution itself and the other branches? Is it in the executive that appoints and removes Justices of the court subject to confi rmation by the Senate, or is it in the legislature? Th e paper argues that the overriding eff ect of the judicial power of the Supreme Court over all persons and authorities including the Constitution puts the judiciary in supreme position, that being the natural consequence of the power so vested in the judiciary by the "People Th emselves. "
2020
The judiciary has come under a severe criticism in recent times due to its untimely disposal of electoral case in free and fair manner. Marxist theoretical perspective is hereby adopted to ascertain the problem under consideration. The need for the theory arose because the judiciary with its powers is required by the capitalist to enforce unequal distribution of social and material rewards in order to preserve their position to oppress less privileged class in the society. It was discovered that the capitalist class in Nigeria normally muster financial resources not just to perpetuate electoral fraud but also bribe their way in the election petition tribunal which aim at correcting the abnormality in the electoral system thereby denying the masses access to justice in Nigeria. It was recommended that various punishments and sanctions should be awarded to erring judges who indulge in corrupt practices, such punishment like death sentence, dismissal from service, public humiliation by sending them to prisons to serve jail term. On the side of politicians who bribe judges to see their way through, they should equally trial and convict them for bribing public officers. Also they should be disqualified from whatever political position they are contesting for, this will help in reducing the corruption in the judiciary that does not allow Nigerian democracy to grow.
Abstract A most prominent debate on system of government around the world concerns the relationship between democracy and military rule. It has been argued that shared democracy allow citizens participation in governance, observance of rule of law and respect for fundamental right, whereas military system of government maintain the apparent authoritarian rule without respect for rule of law and fundamental rights and peace is spurious. Moreover, even among those who believe that democracy offers citizens participation in governance, observance of rule of law and respect for fundamental right, strong disagreement remains over the mechanisms for driving it. It is contended that that military style of government prevents judiciary the necessary independence for resolving inevitable controversies satisfactorily due to ouster of its jurisdiction usually inserted therein the decrees. The surgeon in this paper is the examination of the Myth of the Military and the role of the judiciary in disputes settlement and attitude to decrees in view of the ouster clauses. The paper examines whether the judiciary has been active or passive in its functions and protection against human rights violation in the Military era. The paper traces the history of Military rule in Nigeria and the system of government within these periods, Moreover; our case laws’ experiments allow us to investigate the position of the judiciary as causal mechanisms against the threat and violation of human rights. Using landmark judgments in our analysis, this paper reveals stronger support for judicial activism perception and courageous attitude of the Nigerian courts against aberration of law. Our findings shed light on the need for the political actors to play by the rule and prevent Military incursion and truncation of democracy.
Democratic transformation in nigeria and the role of the judiciary; the journey so far
This topic subscribes very strongly to the quest for an independent judiciary and a just system of adjudication to ensure democracy in Nigeria. Justice is the fulcrum of social engineering, development, transformation and harmonious existence in the society. Justice is the first virtue of social institutions that produces democratic changes. The judiciary in Africa must therefore set the tone for the right quality of justice by playing its role perfectly especially where the search for justice continues to escalate and justice continuously eludes the poor and powerless. The foundation of judicial independence in a democratic environment is rooted in the principle of separation of powers which advocates for separate functioning of the three organs of governance; this however is what ought to be and not what is. What holds is that the judiciary overtly or covertly is being treated as an appendage of the executive, inadequacy of funds is a constant phenomenon which ensures that the chief judicial officers goes often to the executive officers cap in hands for funds. The judiciary must appreciate and recognise it roles and independence as the panacea for the sustenance of democracy in Nigeria
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THE RELATIONSHIP BETWEEN THE RULE OF LAW AND CONSTITUTIONAL DEMOCRACY IN THE NIGERIAN CONTEXT
The principle of rule of law is a constitutional concept which is of great significance to the system of administration of justice. It connotes that in a state, the government and its administration shall be entirely subject to the law. This paper analyzes the concept of rule of law. It explores the relationship between the operation of this guiding principle of governance and the existence of a constitutional democracy in the Nigerian setting. The paper is concerned with whether the principle of rule of law thrives more in a democratic Nigeria than in a military regime.