Typically, activism as a concept finds most of its expression outside the courtroom and beyond the hem of the robe. However, whilst judicial activism may be a relatively recent development in the Nigerian judicial sphere, it has been a player in the judicial arena for a long period now. Across different jurisdictions, judicial activism has been utilized as an instrument for upholding justice in several circumstances. The Chief Justice of Pakistan Mian Saqib Nisar for instance defended the Pakistani apex court’s judicial activism, explaining that the judiciary is the “guardian of the fundamental rights of the people of Pakistan” by the law and thus “duty bound to ensure that the rights of the people are protected”.
It has however not enjoyed as much acceptance and utilization amongst the Nigerian judges. It is the aim of this writer to discuss why there is a need to embrace the instrumentality of judicial activism in a bid to preserve and promote the ideals of justice and truth against the militating effects of obnoxious and outmoded laws.
2.0 CONCEPTUAL ANALYSIS
The idea of judicial activism has been around far longer than the term. Blackstone favored judicial legislation as the strongest characteristic of the common law while Bentham regarded this as a usurpation of the legislative function and a charade or ‘miserable sophistry’. Quite surprisingly the term judicial activism did not originate from a dictum or a ruling but instead from an editorial piece. Arthur Schlesinger is said to have first introduced the term in a January 1947 Fortune Magazine article titled “The Supreme Court 1947. ”
However, in spite of its long time presence, a lot of disagreements still arise as to the definition of the term as the term has been defined in a number of disparate and sometimes even contradictory ways. The term judicial activism is explained in Black’s Law Dictionary, as ‘a judicial philosophy which motivates judges to depart from strict adherence to judicial precedent in favour of progressive and new social policies. It is commonly marked by decisions calling for social engineering and occasionally these decisions represent intrusions in the legislative and executive matters’. A more descriptive definition, better suited for the purposes of this commentary, would see that judicial activism is defined as an inherent feature of some court rulings which allows for the perception that decisions are made based on personal, political or public policy considerations as opposed to a strict construction or literal interpretation of the law.
It must be conceded that while many do not really see the need for the continued furtherance of this judicial philosophy, in underdeveloped countries like Nigeria characterized by slow development, even socio-legally, in terms of our counterproductive law making system, the importance of judicial activism in the Nigerian legal realm can never be overemphasized. This is as a result of many reasons some of which include our unresponsive law making institutions who fail to catch up with societal changes and development and who sometimes are accused of making undemocratic laws which tend to favour their interests and disfavour the general populace or in some instances, even proceed to enact legislations that are obnoxious in every sense. Thus, where these laws are brought before the courts for interpretation, judges who hold dear some esteemed ideals of justice, choose to deviate from what would be regarded as the apparent implication of the laws, usually basing their judgements on one public policy or the other.
3.0 SCOPE OF JUDICIAL ACTIVISM
Significantly the origin of judicial activism is linked to the power of judicial review asserted by the United States Supreme Court in Marbury v Madison in 1803. It is also worthy to note that the period after the declaration of the Federal Republic of Nigeria saw to a few instances which evidenced that the Supreme Court exhibited certain elements of judicial activism which established the Court linkage to judicial activism. These cases include: Adegbenro v Akintola, Williams v Majekodunmi, Council of University of Ibadan v Adamolekun, and Lakanmi v Attorney General Western Nigeria and other decisions vindicating the rights of Nigerians.
Since judicial activism has been established to be a judicial philosophy, it is necessary to examine the context in which this philosophical concept manifests itself. In determining the scope of judicial activism, it must be noted that it could involve: (i) the interpretation of the constitution and statutes, (ii) compliance with judicial precedents and (iii) cases of judicial review of executive actions.
In Agbakoba v Attorney General of the Federation of Nigeria, a case described by some to be a clear cut instance of judicial activism, the trial judge held that constitutional amendment without the President’s assent is null and void, ignoring a persuasive precedent, Hollingsworth v Virginia , a U.S Supreme Court case where the court determined this exact question and interpreted the provisions of Article V of the constitution, similar to the provisions of Section 9 of the 1999 Constitution. The U.S Supreme Court had held that the President has no formal role in the process of amending the United States constitution , further holding that while it is permissible a presidential signature is unnecessary. This presents an illustration of judicial activism involving a statutory provision as well as a judicial precedent.
4.0 THE IMPACT OF JUDICIAL ACTIVISM ON OBNOXIOUS LAWS
In any democratic state, such as Nigeria, the court is seen as an indispensable unit of the institution of government in the discharge of its duty of interpreting the constitution as well as statutes. The Nigerian Constitution 1960, 1963, 1979 and 1999 (as amended in 2010) placed the judiciary in this tasking position with a number of provisions that deal with structure, functions and powers of the judiciary. In the words of Muntaka-Coomassie J.C.A. in Zekeri v Alhassan:
In a democratic society as ours, where the rule of law prevails, the court is the last hope of the common man. It plays an important role in the interpretation of the constitution, protects the rights of citizens from encroachment by any organ of the government and generally has the inherent jurisdiction to determine cases between persons and persons and government.
This duty has created a sense of obligation on the part of some judges who in the pursuit of justice defy the concept of judicial restraint to ride the delicate horse of public policy as Lord Denning so describes it. This practice thus becomes more pronounced in the face of obnoxious laws or laws that defy the concepts of democracy and justice, such that it now seems that nearly any court decision that checks government power is met with cries of ‘judicial activism’. Some might argue that the use of judicial powers to check laws in any way amounts to a breach of the concept of separation of powers, however the court has repeatedly stated its position. The Supreme Court in Tony Momoh v The Senate stated that the Nigerian Constitution is firmly based upon the doctrine of separation of powers; the National Assembly makes the laws, the judiciary interprets them. Thus there really is no intended breach of separation of powers; the court need only do what it must to uphold justice, the pillar on which the entire judicial institution stands.
Thus, in the earlier mentioned case of Agbakoba v Attorney General of the Federation of Nigeria, the court was faced with a precedent which constitutes case law which if effected, would have reduced to nothingness, the requirement of the President’s assent to constitutional amendments, and by that same logic the signature would be useless vis-a-vis regular bills.
Also, in Inakoju v Adeleke, where the governor was impeached by the Oyo State House of Assembly under the cloak of its constitutional power to impeach, the court though faced with an ouster clause as contained in Section 134(10) of the 1979 Constitution, found that the clause would only apply if the procedure in the preceding sub-sections were duly complied with and the impeachment was conducted by the ‘House’ and not some truncated proceedings by some members of the house. Thus, a constitutional provision which if upheld in that context would have been obnoxious in its application was duly avoided through the device of judicial activism with the judges relying on the rule of law policy.
These demonstrate a couple of instances where judicial activism has been employed to check laws and case laws, which if applied would have been detrimental to the pursuit of justice.
As advanced and demonstrated above, where laws are enacted and are by their nature obnoxious or have existed for a while and have become obnoxious by virtue of the fact that they are now socially outmoded or contextually inappropriate, yet the legislative arm of government has refused to remedy the situation, there appears to be only one way to solve the apparent problem; judicial activism.
It must be admitted by all, that the continued existence and application of obnoxious laws to the legal disputes within the state would be injurious to the concerned parties and by extension even the general populace to an inconceivable extent. It is on this basis that this writer submits that judicial activism can in deed and in truth be utilized as a panacea to obnoxious laws.
Temilola Adedapo Adetona is a 400L student of the Faculty of Law, University of Lagos with a keen interest in energy law, intellectual property, taxation amongst others. He enjoys writing and has participated in and won several essay competitions, national and international and has also had a number of published articles.