Judicial Activism as a Rebellion against Judicial Orthodoxy: A Critical Analysis
Mrs. Ijeoma Anozie*
Richard Emeka Ogbodo Esq.**
Abstract
This paper examines judicial activism as a rebellion against judicial orthodoxy and concludes that it constitutes a means of enhancing the legitimacy of the Courts. The paper opines that what sustains legitimacy of judicial activism is not its submission to populism, but its capacity to withstand such pressure without sacrificing impartiality and objectivity as that remains the source of the Court’s legitimacy.
1. Introduction
The judiciary is fundamentally saddled with adjudicatory responsibility. The judicial powers of the state are vested in the courts established by the constitution.[1] Consequently, it is the court’s responsibility to determine the civil rights and obligations including any question or determination by or against any government or authority. In doing this, a person shall be entitled to fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.[2] Therefore fair hearing is cardinal to the adjudicatory functions of the court. In Milkyway Investment (Nig.) Ltd. v Alhaji Isa Usman[3] it was held that the hearing of a matter in court cannot be said to be fair if any of the parties appearing before the court is refused a hearing or is denied the opportunity to be heard or present his case or call evidence.[4] However, the Supreme Court warned in Mfa v Inongha[5] that the court has no business pursuing a recalcitrant party in order to hear him. All the court is required to do is to create an enabling environment for the party to present his case and be heard.[6]
In carrying out these adjudicatory functions, there are instances in which the judges allow their personal views about public policy, among other factors, to guide their decisions usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore judicial precedents.[7] This is called judicial activism and it forms the crux of this paper that is to critically examine judicial activism as a rebellion against judicial orthodoxy.
2. The propriety of the judicial activism in contemporary Nigeria.
2.1 The Doctrine of Separation of Power
The doctrine of separation of powers means that neither the legislature, the executive nor the judiciary should exercise the whole or part of another’s power. It was held in Lakanmi & Anor. v. The Attorney-General of Western State & Ors.,[8]that the structure of the Constitution of the Federation of Nigeria was based on the separation of powers amongst the organs of government the courts were vested with the exclusive right to determine justiciable controversies between citizens and between citizens and States.[9] The doctrine of separation of powers, as a principle of interpretation of the Constitutions is sometimes subject to modification by either the express or implied provisions of the Constitution.[10] Therefore, where there are express or implied provisions in the Constitution which negative the application of the principle of separation of powers then the principle would have to give way to the express and implied provisions. In the absence of anything to the contrary, it has to be admitted that the structure of the Nigerian constitution is based on separation of powers.
In Attorney General of Abia State v. Attorney General of the Federation[11] it was held that the executive power is to administratively implement the policies of governance made by National Assembly into laws. The National Assembly is to make the law but the implementation of the laws is vested in the executive. The judiciary is to interpret the laws. The executive powers are vested by section 5 of the 1999 Constitution as amended in the President. The judicial powers are vested by virtue of section 6 of the 1999 Constitution in the courts established for the federation. The legislative powers, by section 4 thereof vested in the National Assembly for laws within its competence and in the House of Assembly of a State for the laws within its competence to make.
The principle behind the concept of separation of powers is that none of the three arms of government under the Constitution should encroach into the powers of the other. Each arm – the executive, legislative and judicial – is separate, equal and of co-ordinate department and none can constitutionally take over the functions clearly assigned to the other. The doctrine is to promote efficiency in governance by precluding the exercise of arbitrary power by all the arms and thus prevent friction.
- Jurisdiction of the Court
The apex court in Ndaeyo v Ogunnaya[12]defined jurisdiction as the authority which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted and may be extended or restricted by similar means.[13]It is the statute that confers on the courts the power to exercise jurisdiction over any case, the exercise of such powers by the courts must have bearing with the claim before the court as to make the statute or enactment relevant to the case on hand.[14]
Therefore, jurisdiction is very fundamental. The Supreme Court in National Union of Road Transport Workers & Anor. v Road Transport Employers Association of Nigeria & Ors.,[15]describes jurisdiction as the live wire of a case which should be determined at the earliest opportunity. If a court has no jurisdiction to determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided. This is so since a defect in competence is not only intrinsic, but extrinsic to the entire process of adjudication.[16] It is basic and not in contention, that a court is only competent to entertain a case when, inter alia, the subject matter of the action is within its jurisdiction and the court is initiated by due process of law. Kekere-Ekun re-echoed in Gwede v. INEC & Ors.,[17]that jurisdiction is the lifeblood of any adjudication. Where a court lacks jurisdiction to entertain a cause or matter, its proceedings would amount to a nullity.[18]
There is always a laid down rule by which the court must carry out its adjudicatory responsibilities. Certainly, the rules of court are made for the convenience and orderly hearing of cases in a court. They are made to help the cause of justice and not to defeat justice.[19] In Fidelity Bank Plc. v Monye[20] the Supreme Court accentuated that rules of court touch upon the administration of justice. They are made to regulate matters in court and to assist parties in the presentation of their case within a procedure made for the purpose of a fair and quick dispensation of justice.[21] Whatever the case maybe in the court proceedings, the rules are no more than an adjunct to the course of justice. The court must never interpret a rule of court to defeat access to justice. Any non-compliance with any rules of the court is prima facie an irregularity and not a ground for nullity. If they are mere irregularity they may be either a ground for setting aside the proceedings if taken up timeously before the person aggrieved thereby has taken any step upon becoming aware of the irregularity or may be waived.[22] A party who has tacitly or expressly consented to a procedure that is not unconstitutional or a nullity, but which is merely irregular or wrong and has suffered no injustice thereby cannot be heard to complain subsequently, whether in the trial proceedings or on appeal that the procedure was wrong or irregular. The court sometimes uses this approach to circumvent judicial precedent. This is the genesis of judicial rebellion tagged activism.
2.3 The Basic Role of the Court
By virtue of the provisions of section 4(8) of the 1999 Constitution, the courts of law in Nigeria have the power and indeed, the duty to see to it that there is no infraction of the exercise of legislative power, whether substantive or procedural, as laid down in the relevant provisions of the Constitution. If there is any such infraction, the courts will declare any legislation passed pursuant to it unconstitutional and invalid.[23] Thus it is the primary function of the trial court to evaluate evidence and decide what probative value to attach to what piece of oral evidence. This is so because it is the court that had the opportunity of seeing, hearing and observing the witnesses in the course of their testimonies.[24] This must be demonstrated in open court. The court cannot verify the claim of the plaintiff within the closet of the trial judge.[25] This will amount to cloistered justice which is not the duty of the court. In ACN v Lamido & Ors.[26] where Fabiyi JSC said:
It is not the duty of a court or tribunal to embark upon cloistered justice by making enquiry into the case outside the open court not even by examination of documents which were in evidence but not examined in the open court. A judge is an adjudicator not an investigator.
In England, judicial review of administrative action existed, but the courts did not have the power to review the acts of Parliament, because Parliament was supreme. Professor Dicey’s theory of Parliamentary sovereignty represents an English constitutional incarnation of Austin’s theory of sovereignty. The low profile of the judicial role in England was consistent with the theory of Parliamentary sovereignty. However, underneath the self-negation lay the creative effort of the courts to protect individual liberty and strengthen the rule of law. England has a long history of resistance to a written bill of rights because the English people are raised with the faith that the liberty of the subject is sacrosanct and the courts will allow its infraction only if supported by a provision of law. In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice.
3. Judicial Activism
Arthur Schlesinger Jr. introduced the term judicial activism in a January 1947 Fortune magazine article titled “The Supreme Court: 1947”.[27] The phrase has been controversial since its beginning. Even before this phrase was first used, the general concept already existed. For example, Thomas Jefferson referred to the despotic behaviour of Federalist federal judges, in particular, John Marshall.[28] Judicial activism refers to judicial rulings suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint.[29] The definition of judicial activism, and which specific decisions are activist, is a controversial political issue, particularly in the United States. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers.
At the center and spirit of what is called judicial activism is the idea that in deciding a case the judges particularly the judges of an apex court may, or on one perspective, must, reform the law if the existing rules or principles appear defective, perverse or absurd. This necessarily involves a freedom to depart from existing authority however eminent and long standing. In some cases at least the reformation of the law is designed to give effect to social policies or achieve substantial justice rather than legal principles and to have regard to what are said to be contemporary social conditions and values.[30]
Judicial activism is traditionally the opposite of the concept of judicial restraint, whereby the courts interpret the Constitution and any law to avoid second guessing the policy decisions made by other governmental institutions such as Parliament, and the President within their constitutional spheres of authority. On such a view, judges have no popular mandate to act as policy makers and should defer to the decisions of the elected political branches of the government in matters of policy making so long as these policymakers stay within the limits of their powers as defined by the Constitution.[31]
In some States in US, judicial activism is a way for liberals to avoid the regular legislative means of enacting laws in order to ignore public opinion and dodge public debate. Courts in California — both state and federal ones — frequently engage in judicial activism. One major example of this is the relatively recent California Supreme Court decision In re Marriage Cases[32], wherein four California Supreme Court justices unilaterally overruled the will of the people of the State of California, and legalized gay marriage. Proposition 22, which recognized the traditional definition of marriage had previously been put in place by a majority of California voters, but this did not deter the liberal judges of the court from acting. In response, a majority of California voters passed Proposition 8, which amended California’s Constitution to uphold the sanctity of marriage, stemming the tide of the liberal homosexual assault on marriage before it was too late. This position of law is further buttressed in Obergefell & Ors. v Hodges, Director, Ohio Department of Health & Ors.,[33]in which the US Supreme Court held that marriage between same sex partners in all States of the US is legal. The court insisted that principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples. The first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why interracial marriage bans under the Due Process Clause was invalidated.
This decision left many people dazed. It is clearly judicial activism at work yet it is a rebellion against the moral etiquette of most people. This explains why the judgment was received with mixed reactions. The protagonists of same sex marriage hailed the judgment as a demonstration of judicial activism while antagonists of same sex marriage decried the judgment as a rebellion which routed the moral ethos of the people.
4. Judicial Activism in Nigeria
In Nigeria, the court is saddled with the responsibility of adjudicating in disputes between parties before it.[34] However, the power of the court to adjudicate is limited both by the statute and the law. It must be stressed that any law which limits the right of access to court of the citizen’s must be given strict interpretation. In Cotecna International Ltd. v Churchgate Nigeria Ltd. & Anor.,[35]the Supreme Court held that the constitution guarantees citizens right to vent their grievances in court. Any law which seeks to deprive a citizen of his constitutional right must be construed strictly by the court.[36] Indeed, uninhibited access to a court of law is the hallmark of civilisation and any statutory provision which tend to regulate or restrict the constitutional right of access of citizens to court must be given strict construction.
The Constitution having the force of law but containing admixture of justiciable and non-justiciable commands raised problems of how to identify one from the other and calls for an act of interpretation by the court independent of the assertion of political department that a particular question is political.[37] Under the Nigerian democratic experiment or betterstill experience, the supremacy of the constitution is not in doubt.[38] Consequently, most of legal macadam obstructing Nigerian political terrain has been smoothened. The timidity of the court has been supplanted with temerity and brevity.
An apt illustration is the journey of the Nigeria courts towards judicial activism as it relates to impeachment. Section 188(10) of the 1999 Constitution provides that: “No proceedings or determination of the Panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court”. This provision was included in the Constitution probably to barricade the court from reviewing matters relating to impeachment under section 188 of the 1999 Constitution. Thus, the section 188(10) of the 1999 Constitution makes the House of Assembly, the complainant, the prosecutor and the judge in impeachment proceedings. Igwenyi[39] attempts to rationalise the inclusion of section 188(10) of the 1999 Constitution thus: “The reason for providing in subsection (10) that there should be no court intervention is because of the so called principle of non-interference in the internal workings of the legislature”.[40] Regrettably, the mischief the section 188(10) tends to handle is less harmful than the one it creates by ousting the jurisdiction of the court.[41] This provision has been the reason why the court has been shying away from entertaining impeachment cases. But the court commenced a high wired rebellion which has made it possible for an impeached office holder who felt that he is being victimised to seek redress in a court of law.
The activism started with cases of impeachment of a governor. In Balarabe Musa v Auta Hamza[42] the court abstained completely that it would not interfere with the removal of the governor of a state from office. Thus in Abaribe v Abia State House of Assembly[43] the court warned that “The court should not assume for itself power it is never given by the Constitution to brazenly enter into the miasma of political cauldron and have itself bloodied and thereby losing respect in its quest to play the legendry don quixo dela manche”.[44] The first shot of judicial activism fired on this issue was in the case of Inakoju v. Adeleke.[45] In that case, the Oyo State House of Assembly sat at an unusual location other than Assembly Complex Secretariat, Ibadan. The appellant sat at D’Rovans Hotels Ring Road, Ibadan, where they purportedly suspended the Draft Rules of the Oyo State House of Assembly. The appellant purportedly issued a notice of allegation of misconduct against Ladoja with the purpose of impeaching him. Ladoja was later impeached and the Court after scrutinising the procedure used in the impeachment held that: “A conditional precedent to a proper impeachment of the plaintiff is that there must be strict observance of the provisions of section 188(1 – 9) of the 1999 Constitution. Non observation of the conditions in subsection 1 – 9 will be declared null and void”. This position of law is reaffirmed in Dapianlong v Dariye[46]when the court stated that:
It is true that section 188(10) of the 1999 Constitution oust the jurisdiction of the court in respect of impeachment of governor or deputy governor but that must be subject to the rule that the legislature or the House of Assembly complied with all the constitutional requirement in section 188 needed for the impeachment as the court has the jurisdiction to determine whether the said constitutional requirement had been strictly complied with or not.
In Danladi v Taraba State House of Assembly & Ors.[47] Supreme Court further held that:
Impeachment proceedings provided by section 188 of the Constitution is a purely legislative constitutional affair and in exercising their power good faith must always be at the forefront of their consideration. It would amount to bad faith where members of the House sit outside the house or at strange hours to conduct impeachment proceedings. Changing the rules before the commencement of impeachment proceedings would also amount to bad faith. It is clear that the conclusion is inescapable that the framers of the Constitution wanted the House of Assembly to be responsible at every level.[48]
Another area in which the court has deployed judicial activism is in the area of intraparty activities. In Abana v Obi[49] the court foreclosed itself from dabbling into the internal affairs of a political party by imposing candidate on the party. But in Ugwu v Ararume[50] the Supreme Court compelled Peoples Democratic Party to field Ifeanyi Ararume as its Imo State gubernatorial candidate contrary to the intention of the party.
5. Conclusion
The judiciary has greatly assisted in stabilising and consolidating democracy in Nigeria by its interpretative role, its refusal in many cases to grant frivolous interim injunctions and its upholding of the Constitution. The judiciary has upheld the constitution even against the wishes of the executive and the legislature, as in the case Governor Joshua Dariye v. EFCC[51]where the constitutional immunity was upheld. The court has always been driven by burning desire to activate constitutional provision and make it operational. This is because the constitution is the safest leader of the army of judges not esoteric legal philosophies.[52]
Though this judicial activism in its rebellious posture has ensured that governors are not bundled out of office recklessly, other areas that needs rebellion by way of judicial activism have not be favourably affected. Section 6(6)(c) of the 1999 Constitution as amended has restrained the courts from entertaining matters relating to chapter two of the said constitution which has to do with fundamental objectives and directive principles of state policy.
Judicial activism is not an aberration. It is an essential aspect of the dynamics of a constitutional court. It is a counter-majoritarian check on democracy. Judicial activism, however, does not mean governance by the judiciary. Judicial activism must also function within the limits of the judicial process. Within those limits, it performs the function of stigmatizing, as well as legitimizing, the actions of the other bodies of government—more often legitimizing than stigmatizing.[53] The words remain the same, but they acquire new meaning as the experience of a nation unfolds and the Supreme Court gives continuity of life and expression to the open-textured expressions in the Constitution, to keep the Constitution abreast of the times. The judiciary is the weakest body of the state. It becomes strong only when people repose faith in it.[54]
Such faith constitutes the legitimacy of the Court and of judicial activism. Courts must continuously strive to sustain their legitimacy. Courts do not have to bow to public pressure, but rather they should stand firm against public pressure. What sustains legitimacy of judicial activism is not its submission to populism, but its capacity to withstand such pressure without sacrificing impartiality and objectivity. Courts must not only be fair, they must appear to be fair. Such inarticulate and diffused consensus about the impartiality and integrity of the judiciary is the source of the Court’s legitimacy.
* Mrs. Ijeoma Anozie is a Research Fellow with Nigerian Institute of Advanced Legal Studies.
** LLB (Nig.), LLM (Nig.), BL. Richard is the Principal Counsel, Suprema Lex Chambers, 18 Edinburgh Rd., Enugu. remogunec@yahoo.com
[1] The Constitution of the Federal Republic of Nigeria 1999, as Amended, s. 6(1).
[2] Ibid., s. 36(1).
[3] [2014] 40 WRN 159.
[4] Ibid., p. 180. This is also the firm position of the court in Ologunleko v. Oguneyehun [2008] 1 NWLR (Pt. 1068) 397 at 405.
[5] [2014] 24 WRN 1.
[6] Ibid., p. 24 – 25.
[7] B. A. Garner, Black’s Law Dictionary, (8th edn., USA: Thompson West, 2004), p. 862.
[8] [1974] 4 ECSLR 713.
[9] Ibid., 731.
[10] This is the position in Attorney General of Bendel State v. Attorney General of the Federation & Ors. [1983] 6 SC 8 at 32.
[11] [2006] 28 NSCQR.
[12] [1977] 1 SC 11.
[13] Ibid., p. 24 – 26.
[14] Relevant to this is the decision in Azie & Anor. v. Azie & Ors. [2015] 5 WRN 155 at 172.
[15] [2015] 10 WRN 1. See also Madukolu v. Nkemdilim [2001] 46 WRN 1 and Oloba v. Akereja [1988] 3 NWLR (Pt. 84) 508.
[16] Ibid., p. 24.
[17] [2015] 9 WRN 1.
[18] Ibid., p. 97.
[19] R. E. Ogbodo, “The Procedural Challenges to the Enforcement of Labour Related Fundamental Rights at the National Industrial Court”, Labour Law Review, vol. 8, No. 2 , June 2014, pp. 27 – 38 at 35.
[20] [2015] 8 WRN 1.
[21] Ibid., p. 37 – 38.
[22] See Okafor & Ors. v. Incorporated Trustees of Building Materials Traders Association, Ogidi & Ors. [2015] 1 WRN 155 at 180; Okoye & Ors. v. Nigerian Construction & Furniture Co. Ltd. & Ors. [1991] 7 SC (Pt. 111) 33 and Saude v. Abdullahi [1989] 4 NWLR (Pt. 116) 87.
[23] See The Governor of Ekiti State & Ors. v. Olayemi [2015] 6 WRN 120 at 165.
[24] See Amaremor v. The State [2014] 40 WRN 1 at 47.
[25] See Dantama v. Unity Bank Plc. [2015] 12 WRN 126.
[26] (2012) LPELR – SC 25/2012.
[27] K. D. Kmiec, “The Origin and Current Meanings of Judicial Activism”, (2004) Cal. L. Rev. 92: 1441, 1447.
[28] Haines & Sherwood, The Role of the Supreme Court in American Government and Politics: 1789–1835, 1944, p. 209.
[29] C. Wolfe, Judicial Activism, (USA: Rowman & Littlefield, 1994), p. 16.
[30] I. Imam, “The Myth of Judicial Activism in Nigeria: Making Sense of Supreme Court Judgments”, available at https://unilorin.edu.ng/publications/imami/THE%20MYTH%20OF%20JUDICIAL%20ACTIVISM%20IN%20NIGER%20N0%202.pdf (last accessed 07 July 2015).
[31] E. K. Quansah, “Judicial Activism in Africa: Possible Defence against Authoritarian Resurgence?” available at http://www.ancl-radc.org.za/sites/default/files/Judicial%20Activism%20in%20Africa.pdf (last accessed 07 July 2015).
[32] 43 Cal. 4th 757 (2008).
[33] Full Judgment is available at http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf (last accessed 07 July 2015).
[34] Constitution of the Federal Republic of Nigeria, 1999 as amended, s. 36(1).
[35] [2011] 18 WRN 1.
[36] Ibid., p. 44.
[37] B. O. Nwabueze, Judicialism in Commonwealth Africa, (London: C. Hurst & Company, 1977), p. 26.
[38] 1999 Constitution as amended, s. 1(1).
[39] B. O. Igwenyi, Modern Constitutional Law in Nigeria, (Abakaliki: Nwamazi Printing & Publication Co. Ltd., 2006).
[40] Ibid., p. 244.
[41] Ibid.
[42] (1982) 3 NCLR 229.
[43] [2002] 14 NWLR (Pt. 788) 466.
[44] Ibid., p. 479.
[45] [2004] 4 NWLR (Pt. 1025) 18.
[46] [2007] 15 NWLR (Pt. 843) 310.
[47] [2015] 6 WRN 1.
[48] Ibid., pp. 16 – 17.
[49] [2004] 10 NWLR (Pt. 881) 319.
[50] [2007] 12 NWLR (Pt. 1048) 367.
[51] Available at http://nigeriavillagesquare.com/forum/main-square/2894-efcc-vs-dariye-case-against-joshua-dariye.html (last accessed 08 July 2015).
[52] Sallah v Attorney General 2 G & G 493 (1970).
[53] P. S. Sathe, “Judicial Activism: The Indian Experience”, available at http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1443&context=law_journal_law_policy (last accessed 08 July 2015).
[54] Ibid.