The Relevance of the Judiciary in a Democratic Nigeria
| Published date | 01 June 2012 |
| DOI | 10.3366/ajicl.2012.0035 |
| Pages | 301-317 |
| Author | Osahon O. Guobadia |
| Date | 01 June 2012 |
The Constitution of the Federal Republic of Nigeria 1999 (as amended)
Hereafter the 1999 Constitution.
provides for the separation of powers with distinct powers allotted to each arm of government.Section 4(1) of the 1999 Constitution provides that ‘the legislative power of the Federal Republic of Nigeria shall be vested in the National Assembly’, and section 5(1) that ‘the executive power of the Federation shall be vested in the President’.
Section 6(2) of the 1999 Constitution provides for the judiciary power of a state.
shall extend, notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law,
… to all matters between persons, or between government or authority and to any persons in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligation of that person.
Section 6(6)(c) provides that the judicial authority does not extend to the determination of the question of compliance with the provision of the Fundamental Objectives and Directive Principles of State Policy. Also outside its purview are any proceedings or actions questioning the authority or competence of persons for making any law on or after 15 January 1966.
M. A. Ikhariale, ‘The Independence of the Judiciary under the Third Republican Constitution of Nigeria’, in E. Azinge (ed.),
The judiciary is bound under the Constitution to uphold the Constitution by declaring void, in appropriate cases, the acts of the other branches of government which are contrary to the provisions of the Constitution. They do this in the exercise of the judicial power which was defined by Griffith CJ in the Australian case of
8 CLR 300 at p. 357.
and approved by the Judicial Committee of the Privy Council in(1931) A. C. 275 at pp. 295–6.
the words ‘judicial power’ as used in S.11 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects … The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.
See A. G. Karibi Whyte,
To ensure the due discharge of its duties and to ensure that the rule of law and democratic principles take root in Nigeria, there is the need to provide for the adequate independence of the judiciary at all times. In Nigeria, where such concepts have not sufficiently taken root, the courts, by virtue of the 1999 Constitution, are reposed with this delicate responsibility.
Ikhariale,
(1980) 8–11SC 130 at 148.
It is the duty of this court to bear considerably in mind the fact that the present constitution has been proclaimed the Supreme Law of the Land … that the function of the constitution is to establish a frame work and principles of government, broad and general in terms intended to apply to the varying conductions which the development of several communities must evolve, ours being a plural, dynamic society …
Furthermore, politicians’ notion of the principle of ‘supremacy of the legislature’ has been consigned to the dustbin because the plenitude of judicial powers is extensive and has been finally settled in that epochal decision in
(1981) 10 SC 1 at p. 33.
But on no account should the judiciary compromise its constitutional function of control because a dereliction of this duty would ultimately lead to a supplanting of the rule of law.O. Achike, ‘The Dramatis Personae in our Nascent Democracy’, address delivered at the Annual General Conference of the NBA, Abuja, 21 August 2001, p. 5.
To take it further, a holistic look at the functions of the judiciary may reveal some ambiguity which has created the debate about judge-made laws. Since judges are not elected representatives of the people, it would be tantamount to a usurpation of the power of the legislature to make law if judicial law making is entertained.
J. Bell,
M. I. Jegede ,
In order to find a common ground on this issue and avoid controversies, it may be said that the legislature makes law while the judges interpret the law, in the exercise of their judicial power. The older view was that the court was to go on a voyage of discovery to discover the law among the principles of common law and equity, much as a scientist discovers a natural law and then declares it. Today it is admissible that the judiciary creates the law somewhat as legislature creates the law, but within the narrow bounds represented by the facts of the case.
Judicial effectiveness is a critical factor in any constitutional arrangement. According to the prolific author John Bell:
Within the process of adjudication, the judiciary may perform tasks other than resolving a dispute according to the standards of the legal system. In controlling the procedure, either in a specific case or in the more general task of issuing practice directions, judges may perform administrative tasks. Equally, the same might be said of the more central task of pronouncing sentence in a criminal case, or awarding costs. Thus ‘court administrative role’ could be considered ancillary to the central task of adjudication. However, the creation of new rules or standards to resolve disputes, although legislative in character, is more clearly central to the role of adjudication. On the whole, the Western concept of adjudication accepts that resolving disputes according to standards of the legal system may involve the formulation of new legal norms. The inclusion of this task in the ordinary practice of adjudication reinforces the political importance of the institution.
Bell,
This concept was brought to bear even under military regimes, where on coming to power (in the aftermath of a coup) the new government would suspend the constitution by means of a basic decree which in most cases also provided for the governmental framework of the junta.
For example, the Constitution (Suspension and Modification) Decree No. 107 of 1993 and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 12 of 1994.
These decrees normally vested in the military government legislative powers on any matter whatsoever.See Decree No. 12 of 1994,
(1971) UILR 201.
The Court declared the Forfeiture of Assets etc. (Validation) Decree No. 45 of 1968 as illegal and
(1992) 8 NWLR (Pt 158) 139.
It is necessary at this stage to examine certain areas wherein the...
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