During the last eight years, Nigeria’s judiciary has played an increasingly important political role. The courts are more active in counterbalancing executive and legislative power. At the same time, the long and harrowing experience of the citizens under the military era has prompted ordinary people to press their claims and secure their rights through the courts.
Many theorists and writers have espoused on the concept of judicialisation, juridification and juristocracy. In normative terms, judicialisation is sometimes seen as the hallmark of constitutional democracy and the triumph of the rule of law over despotism. Judicialisation takes place within a legal order, be it at a national, international or supranational level. Governments, legislatures, administrators, the judiciary, legal experts, individuals as well as institutional and corporate actors are involved.
Constitutive judicialisation is a process where norms constitutive for a political order are established or changed, adding to the competencies of the legal system. In judicialisation, law regulates different activities; conflicts are solved by or with reference to law; the legal system and profession get more power as contrasted with formal authorit; and people recognize they are legal citizens.
Judicialisation of Politics
In Nigeria, matters of purely political nature are increasingly being transferred to the court. An instance is the case before the court to determine the constitutionality of the defection of the vice president to the Action Congress, while still a serving Vice President. The president has argued that the vice president’s loyalty belongs to him [president] and since he has defected to another party, his seat is declared vacant. But according to the court, "... the vice-president should have an undivided loyalty but that loyalty is due to the Federal Republic of Nigeria and not, I repeat, not Mr. President nor the People’s Democratic Party who in any case is a stranger to the Constitution of the Federal Republic of Nigeria." The loyalty of the vice president is to the constitution and not the president. It thus amounts to constitutional aberration for the president to declare his seat vacant.
Our system has a the concept of judicial review, which allows for judicial re-examination of conduct and deeds of the executive, legislature and other government bodies to see how far they conform with or breach the constitution. This judicialisation of public policy making explains why both the vice president and the INEC are in court. In other jurisdictions and even in Nigeria, executive actions and decisions can be upheld or rejected. Both INEC and the vice president have expressed confidence in the ability of the judiciary. Nigerian citizens are increasingly resolving matters through the court. Even corporate organisations (both local and foreign) utilise the judiciary as the final arbiter either with the government or other private persons. In Nigeria presently, the judiciary is seen as the last hope of the masses.
Professionals are carriers of occupational morality-an essential regulatory structure that can bridge the gap between state created laws and the actual condition of social life. The legal profession occupies a position of importance in our society.....unique in history. The activities of the legal profession are one of the most important mechanisms by which relative stability is maintained in a precarious dynamic and precariously balanced society. Professionals support and promote the cohesion of the society, not only through the functions they perform but the morality they represent.
The Nigerian Bar Association (NBA) has been in the forefront of enthroning judicialisation in Nigeria. A recent boycott of all courts in the country was termed by the NBA leaders as a “sustained struggle to force the government and its agencies to begin to respect court orders to save the rule of law in Nigeria.” The NBA have been in forefront of the institutionalisation of good governance and democracy in Nigeria.Presently, they are tackling the issues of the 2007 flawed elections of Nigeria and seeking various interpretations of the constitution of Nigeria.
According to Max Weber, law has a central importance in facilitating the forms of social action on which capitalism depends as well as fostering and expressing the more general processes of rationalisation of a capitalist society. Law constitutes a sphere of autonomous social reality which is influenced in its development by economic forces and in turn also influences the economic and other processes within the society. This is exactly the case in the Nigerian context as the law here provides the predictable guarantees of economic transaction that makes rational economic transaction and calculation possible.
Since the media is the communicative link between the government and the people, it invariably serves as a crucial platform through which people claim and assert their basic rights and challenge systems of injustice. Historically, in the old Yoruba Kingdoms, rulers would be overthrown by the collective actions of the people mobilized by drummers and town criers. The media, through investigative and unbiased reporting, exposes how existing systems, policies and practices perpetuate poverty and injustice, thus giving a voice to the poor and marginalized thereby creating the momentum for social change. The mass media affords the citizens the opportunity to publish their opinion and articles many very critical of the government.
The judiciary is ever wary of the active Nigerian media reporting of their judgments. The fact that they report all judicial happenings facie curiae (inside the court) and ex facie curiae is a check on the judiciary. They also interview leading lawyers on positions of the law before and after each political judgment. The media’s reportage of the Chris Ngige case in Anambra state led to the removal of the state chief judge by the Nigerian Judicial Commission.The media is adopting both domestic and international opportunity structures by creating “insider-outsider coalitions,” that put pressure on politicians at home and abroad.
Judicialisation “from abroad,” is present in the Nigerian legal system. Both domestic and foreign law impacts on the legal system as seen in the judicialisation of human rights offences. Recourse is made by legal practioners mostly of the civil society groups to international instruments that Nigeria is signatory to.
The Nigerian human rights movement has been exploiting both domestic and international opportunity structures by creating “insider-outsider coalitions,” that put pressure on politicians at home and abroad. In all the sharia cases ranging from the Safiyah Husseni case to the Amina Lawal case, this approach was successfully utilized to prevent the stoning to death of the women in question. Another means adopted to promote judicialization is the reference to section of 12 of the 1999 constitution of Nigeria, which makes international laws binding and overriding the constitution. Although little has changed with respect to persistent corruption, violence and poverty, it is generally assumed that Nigerians are at least able to express themselves freely in the context of Nigeria’s new political environment.
The eight-year regime of president Obasanjo could be described as a renaissance for the Nigerian judiciary, in which it’s noble and primordial role as non-partisan and incorruptible arm of the government was restored. Apart from the improvement in the welfare of judges and enhanced security for the men of the bench, the National Judicial Council (NJC) played its constitutional roles in the appointment, training, discipline and promotion of judges. The impact of the judiciary has been felt by Nigerians, thanks to the regulatory body NJC. The judiciary has ensured that no tier of government established itself as a bully against others. While the Federal Government has regarded itself as all powerful in the fashion of the central administration in a unitary set up, the state governments have always put up realistic and principled challenge to ensure that no tier acts beyond its powers.
With the doctrine of separation of power, bolstered by political traditions and the common law system inherited by the colonialist, active civil society and independent legal profession has helped in creating situations where the judiciary can and has exerted powerful influence on the Nigerian society in several ways. No other government, from the first republic government of Abubakar Tafa Balewa to the last military regime of Abdulsalami Abubakar lost as many constitutional disputes and other civil matters at the Supreme Court like the government of Obasanjo. The role of the judiciary is firmly entrenched in the Nigerian state.
Many authors have argued that the nature of the political system, particularly the politics of appointment and promotion has lots of influence on the independence of the court the judiciary in Nigerian is selected by the NJC, the president passes the name to the National Assembly for ratification, but it must be specifically stated that in this present dispensation, the influence of the other two arms of government seems to be nil on the judiciary particularly the Supreme Court, the rate at which the president is being humiliated through court decision points to this.
The judicial humiliation that trailed the Obasanjo presidency reminds one of that of Franklin Roosevelt who came to office with extremely ambitious reform agenda which culminated into the so-called New Deal. The courts struck down most of his extraneous initiatives that did not take into account the limits set by the Constitution. He infamously tried to get around this frustration by expanding the Bench with judges who would be sympathetic to his cause. This move also failed as the Supreme Court of America told him it did not need additional manpower. As observed by Stephen Skowronek, "while Roosevelt got the institutional independence he needed to service the new regime, everyone else got the independence they needed to prevent him from controlling it." This was made possible by the Congress which for every new power delegated to the president, added far more stringent standards and oversight controls over it. So, while on paper Roosevelt garnered more powers, he was actually more and more subjected to the control of the Congress and, of course, the courts, through the operation of the constitutional tool of judicial review of government actions.
Beyond emotionalism of partisan viewers, the judiciary today holds the key to the survival or otherwise of democratic order. Interpretation of the constitution is vested in the judiciary and when judgments are delivered, parties to the suit are under obligation to comply with the rulings. Judicialisation is a phenomenon that has come to stay within the Nigerian context.
By Idayat Hassan
Human and Environmental Development Agenda (HEDA)
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