A text of lead presentation by Dr. Sam Amadi, Director of Abuja School of Social and Political Thoughts at the Annual Conference of the Section on Public Interest and Development Law (SPIDEL) of the Nigerian Bar Association (NBA) on August 4-5, 2022, at the NBA Auditorium, Abuja.
This paper argues for a strategic approach to conserving the integrity of the judicial institution in Nigeria’s democracy that protects democracy without inciting pushbacks from the more political branches of government. Such pushbacks can ultimately undermine democracy and endanger the political freedom and security and wellbeing of the Nigerian people, which should be the justification of the power of judicial review. The paper seeks an approach that nicely calibrates between activism and passivism in the exercise of judicial power as the contests demand. The paper analyses the exercise of the power of judicial review, especially in the context of elections in Nigeria, and argues that Nigeria needs both self-restrained and activist courts to manage the delicate dialectics of judicial authority in a democracy. Each mode of judicial intervention should be deployed at different times depending on the macropolitical environment and the determinate variables of the judicial moment. I use the phrase ‘more political branches’ in describing the executive and legislative branches of government to show that the judicial is itself a political institution, even if not to the same degree as the legislature and the executive. Therefore, the judiciary should be politically accountable as well as politically intelligent in order to succeed and to survive.
The paper will take both an analytical and historical approach in understanding the role the judiciary has played in promoting a lawful and democratic society and how the judiciary should navigate the intricacies of the relationship between the various branches of government in modern political society.
- The Constitutional Premises of Judicial Power in the Context of the Constitutional Design of Government:
The exercise of judicial order is premised on a form of constitutional order. In a society with a written constitution, the exercise of judicial power is anchored in a provision of the constitutional text. In a society without a written constitution, the exercise of judicial power is fluid, basically determined by the exercise of legislative power as constrained by executive power, all within a constitutional order, though not textual. The judicial power in Nigeria is textually established by Section 6 of the constitution. It states that, “(1) The judicial power of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation”. (2) The judicial of the State shall be vested in the court to which this section relates, being courts established, subject as provided in the Constitution for the state.” The Constitution goes ahead to specify the courts to which this power applies. The US Constitution makes similar provision in Article 3 thus: “The judicial power of the United State, shall be vested in one Supreme Court, and in such inferior courts as the congress may from time to time ordain and establish…”. The only distinction without much difference is that whereas the US Constitution vests judicial power on the Supreme Court and other inferior courts, the Nigerian Constitution vests it on ‘courts of record’, including the Supreme Court.
The judicial power of the state refers to the power that courts have to intervene in disputes and resolve them in an authoritative manner. It describes the basis for the exercise of the coercive power of the state to interfere with the liberties and rights of the citizens. As Jadesola Akande puts it, “The judicial power is the power of the court to decide and pronounce a judgement and carry it into effect between persons who bring a case before it for decision. It is the right to determine actual controversies arising between diverse litigants, duly instituted in courts of proper jurisdiction.” This definition echoes the views of the US Supreme Court in Muskrat v. United States 219 U.S. 346 at 361 (1911) and United States v. Arrendondo 31 U.S. 691 (1832). (See Akande, Introduction to The Constitution of the Federal Republic of Nigeria 1990 MIJ Publishers, 2000).
It is important to note the two components of ‘judicial power’. First, it is the power to make determinative decisions about ‘disputes’ and ‘controversies’. But it also the power to ensure that such determination is effective. Therefore, judicial power is not efficacious where the ‘determinative decision’ is not enforceable or is frustrated. One of the interesting things about this power is that it is a constitutional construction that is later in time in evolutionary term than the assertion of executive and legislative powers. It is important to realize that democracy as a form of government or any variant of elected governance, did not start with the exercise of judicial power. Kings have ruled without courts. And parliaments have also made laws without the necessity of courts as we know them today. So, historically, the judicial power is the youngest and perhaps the weakest of the powers of the modern state, even if it appears as the most unequivocal and determinative.
From a democratic theory perspective, the exercise of judicial power has both its attraction and distraction. First, it is has become a component of what is best known as liberal or representative democracy. As foremost US political science scholar Robert A. Dahl observes in his book On Democracy, democracy’s journey did not start with the practice of representation. It started with what we can call popular democracy, which equated to undiluted self-determination. Democracy’s premise is that citizens (and it is defined in different manner at different epochs of history) are inherently equality. This equality gives rise to the right to collectively decide about the use of state power. Male adults in some small city, whether in Athens or Florence, met regularly in person to decide their fate. All adults could sit together to decide on matters that affect their commonwealth. But as Athens morphed into the Roman Empire and the city became the metropolis, physical meeting became impossible. So began the idea of representation. The citizens had to elect other citizens to represent them at the townhalls to decide on the wellbeing of the commonwealth.
Representation requires election. Election results in winners and losers. This means that there will be the majority and the minority. The challenge of political legitimacy and stability is how to manage the tension between the majority and the minority. Treating all citizens (at least adult males) as equal means that it is no longer enough to say that the majority will have it way while the minority will have its say. There is the real possibility that the majority may use the outcome of elections to perpetually dominate the minorities and endanger their life and liberty. If democracy is about enforcing equality, then there must be a way to allow the majority to rule but protect minorities from the danger of electoral loss.
The result of the commitment to protect the life and liberties of the minorities while according the majority the right to rule is the development of many counter-majoritarian devices in many democracies today, including bicameralism, the Supreme Court and guaranteed constitutional rights. The most prominent and determinative of these supra and counter-majoritarian device is the Supreme Court, working together with other federal courts in a federal republic. First, these courts protect small states from the tyranny of big states. They also protect the people from majorities in the body polity. The majority can make laws that serve their strategic interests. But they cannot override the guaranteed protections in the constitution. They can reshape the relationships between classes and peoples in the commonwealth. But they cannot change the fundamentals of the commonwealth without rewriting the constitution. And this often requires a super-majority. It is the Supreme Court with the help of other federal courts that secure these guarantees.
- The Assertion of the Power of Judicial Review in the US Constitutional History and its Absorption into Nigerian Constitutional jurisprudence:
The Supreme Court and federal courts protect the constitutional guarantees against violation of right and reduce of democratic freedom through the instrument of judicial review. Judicial review has become the most important topic of constitutional democracy in recent times because of the number of times the court, either as the Supreme Court or the Constitutional Court, has intervened to reshape the contour of republican government in the world, particularly in the United States. Even in the European Union, the European Court of Human Rights has constrained legislative and execution exercise of power in member states on the basis of protecting the constitutional guarantees of the what we can call European Republic. The same phenomenon is present in Africa and the rest of non-western country. Everywhere the Supreme Court or its equivalent is playing important roles to promote democracy.
Judicial review in plain language is the power that the courts assert to review and possibly nullify laws and actions taken by the legislature and the executive on the reason that those laws and actions violate the constitution in one way or another, exceeds their powers to make such law or take such action. In his book, Constitutional Law and Politics: Struggles for Power and Governmental Accountability (Vol. 1) (2000) David M O’Brien argues that “Judicial review is one of the greatest and most controversial of the Constitution to the law and politics of government.” He referred to Article 3 of the US Constitution, he notes that the constitution made no express reference to ‘judicial review’, but observes that “But, in the course of constitutional politics, judicial review has come to be the power of the Supreme Court and the federal judiciary to consider and overturn any congressional or state legislation or any other official governmental action deemed inconsistent with the constitution, Bill of Right or federal law.” This as well defines the meaning of judicial review in Nigerian constitutional law.
Often, we valorize the exercise of judicial review because it provides the court opportunity to stand against an overreaching government that is violating the rights of the people. This is the positive version of judicial review. It helps to promote what we can call ‘republican liberty’, the liberty of people to determine how they would be governed. We see this often when the courts police the boundaries between the state and federal government, or between the governments and its agencies and the people. Both the US and Nigerian Supreme Court have done this often. We see that in the Marbury v. Madison 1 Cr. 5 (U.S.) 137 (1803) and AGF (Bendel) and ors. V. A.G. Federation (1983) SC. 3.
The first real and robust articulation of the doctrine of judicial review in the US and Nigerian constitutional history is in the case of Marbury v. Madison (supra). That decision illustrates the challenge of navigation the complex relationship of power between the legislature and the judiciary. Justice Marshall needed to assert the judicial power of the court as the guarantee of the constitutional design of limited government and the protector of the rights of the people. He asserted the judicial power of the court, but in a manner that did not incite President Jefferson to attack the court. As David M O’Brien analyzes it, “Marbury v. Madison was a particularly explosive case for the Court and the country over the still-contested power of judicial review. The Court faced a major dilemma. On the one hand, if the Marshall court ordered Marbury’s commission. It was likely that Jefferson would refuse to comply. The Court would then be powerless, perhaps permanently. On the other hand, if the Court refused to issue the writ, it would appear weak and that would confirm the Jeffersonian argument that the court had no power to intrude on the executive branch.”. In this cautious but strategic decision the court provided the most famous articulation of the doctrine of judicial review.
Justice Marshall established the power of judicial review in these memorable words: “It is emphatically the province and duty of the court to say what the law is. Those who apply the rule to particular case, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the interpretation of each.” The US Supreme Courts and many other courts across the English and Common Law jurisdictions have followed Justice Marshall in declaring what the law. As early as 1960s, the Nigerian Supreme Court faced similar state of judicial anxiety in the case of Lakanmi v. AG Western Nigeria 1971 1. U.I.R.L. 201. The court faced the difficulty of refusing to invalidate a privative decree that amounted to a judicial judgement and deprived a citizen of his rights without due process. The argument of the state was that the military takeover was a revolution that uprooted the constitutional order. The court refused to accept that logic and asserted its judicial power to nullify the detention of Lakanmi on the orders of the military governor. The military regime was infuriated and responded with a decree invalidating the decision.
The assertion of judicial power through judicial review by both Nigerian Supreme Court and the US Supreme Court arose from the courts giving expression to the provisions of Section 6 of the Constitution and Article 3 of the US constitution. Fatayi-Williams, CJN, argues in the famous AG (Bendel) case that “By virtue of Section 4(8) of the Constitution (now Section 6), 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 Constitutions. If there is any such infraction, the court will declare any legislation passed pursuant to it unconstitutional and invalid.” As we shall see later, the Supreme Court in Nigeria continued to claim the power to invalidate legislation and executive actions during military and civilian administration. Such robust exercise of judicial power continued to expose the court to threat of executive reprisal or even outright rejection of the claim and humiliation of the judiciary. But somehow, by erudition and subtlety the courts have managed to bolster its power without draw too many hits from the other branches with legal ammunitions.
We run the risk of over-romanticizing judicial review as the bedrock of a democratic society. The exercise of judicial review has resulted in the protection of fundamental rights and promotion of democratic freedom. But it comes with some perils where the court can stand against the society and desired change. In the powerful US examples of the use of judicial power to open the gate of equality to African-American, there was the previous ugly used of the power of the court to declare blacks as cartels and to stop the improvement of working conditions for black people through state legislative intervention. So, as we celebrate the importance of judicial review power, we have to acknowledge the not-too-positive side of judicial review where the same Supreme Courts refused to allow executive actions that grants oppressed minorities rights or that provides effective enjoyment of social and economic rights. Late US Supreme Court Justice, Stephen Breyer makes the point clear in his book, Active Liberty: Interpreting Our Democratic Constitution, 2005 page 59. Reflecting on the Supreme Court’s use of judicial review power, he argues that “Each Court holding helps to some degree to protect modern liberty- in the narrow sense described. That is to say, the decision limits the federal government’s ability to control the activities of individuals and businesses. But in respect to the furtherance of active liberty these decisions are retrograde. They discourage use of the cooperative, incentive-based regulatory methods that I have just mentioned. Thus, in a unanticipated ways, they paradoxically threaten to shift regulatory activities from the state and local to the federal level- the likely opposite of their objective”.
- Judicial Review and Electoral Democracy:
As we have shown, the concept of judicial review developed as a counterpoint to the dangers of popular democracy. It is a democratic devise to protect democracy from the inherent of popular democracy in the form of the propensity for majorities to oppress minorities. With electoral democracy, this danger is no more theoretical. The power of judicial review is advocated by its supporter as a veritable protection against the tyranny of the majority. Judicial review was a problematic issue in the early days of the US Constitutional Convention. The role that the judiciary in the constitutional design of the new Republic was one of the key disagreements between the Federalists and the Anti-Federalists. For the Anti-Federalists, a federal judiciary with the power of judicial review posed a danger to state rights and the freedom of the people. As one of the most vicious opponents of the independence and power of federal judges, Roberts Yates (writing under the alias of Brutus) put it, “The power in the judiciary will enable them to so mould the government, into almost any shape they please.” Brutus pointed to the tendency of the federal judiciary to be “independent of the people and any authority under heaven” and therefore make whatever decision they like, whether it accords with reason or law.
The proponents of judicial power and the independence of the federal judiciary argue that such power will conserve democracy. Alexander Hamilton, the leading author of the Federalist Papers, in No. 78 of the discourse, argued that when properly considered in the context of the separation of powers, the judiciary is the “least dangerous to the political rights of the constitution” because it will be the less powerful to injure or annoy the other branches. Hamilton argued for permanent tenure for judges because the judicial power has to be protected from the legislative and executive in order to underwrite the survival of democracy. How real are the danger that Brutus spoke about? Have the courts through its power of judicial review threatened democracy? Has it usurped the power of the people to determine for themselves who should govern them? Has undermined the exercise of executive power when it should not?
In Nigeria, the exercise of judicial review in electoral matters is one area that Brutus may beat his chest if he was alive. The judicialization of elections in Nigeria exposes the courts to allegation of reckless or irresponsibility. The courts sometimes unguarded foray into electoral management exposes it to public opprobrium and possible loss of protection. The courts have done well in reinforcing the importance of democracy. But in some instances, they have made notable mistakes that exposes them to loss of prestige and liability to attack. I will look at a few of such instances and consider what informed the misadventure of the courts in electoral jurisprudence.
The earliest case that thrusted the Nigerian Supreme Court into political maelstrom was Awolowo v. Shagari (1979) 6-9 S.C. 51 where the court struggled to determine what is two-third of Nigerian states to decide whether a candidate has satisfied the requirement for election to the office of the President of the Republic. The case dragged the court into disputable mathematics, and its decision was perceived as disreputable by many political analysts and commentator. This case may be the forebear of the US Supreme Court decision in Gore v. Bush 531 U.S. 98 (2000) where the US Supreme Court for the first time ruled on the allocation of state electoral votes. The two decision exposed the court to ridicule amongst some scholars. In the Awolowo case, Profession Ben Nwabueze, reflecting on the outcome of the exercise of judicial power, argued that judges should avoid such cases because they have personal biases, there will too much pressure on them, too much political reaction to such cases, politically motivated reaction to such cases, and the fact that judges are asked to endorse rigged election. But the problem with such advisory is that the efficacy of judicial power may rest in judges not shying away from such politically explosive cases.
Awolowo case was in the Second Republic. The other three cases discussed here were decided in the Fourth Republic. The first is Amaechi v. PDP (2008) 5 NWLR (Pt. 1080) 227 where the Supreme Court did the impossible by declaring a person who did not contest the gubernatorial election in Rivers State as the person duly elected as Governor of the state. Rotimi Amaechi contested and won primary election for PDP governorship candidate for Rivers State. His name was removed by the party on allegation of misconduct. He challenged his substitution, but the matter was not determined before the election held, and his substitute, Omehia was elected as Governor. After being sworn in as Governor, the Supreme Court ordered Omehia to be removed and Amaechi to be sworn in as Governor. The decision is unprecedented in Nigerian jurisprudence. To justify the oddity of imposing as Governor a person who did not contest election as Governor, the court relied on the fig-leaf of ‘doing substantive justice’. It argued that “this court shall rise up to do substantive justice without regard to technicalities. We would not make an order which does not address the grievance of the party before the court.” According to the court, the only way to do substantive justice is to “declare him (Amaechi) and not the second respondent (Omehia) to have won the April 14 gubernatorial election.”. As we shall see later, this case is even more problematic than Awolowo case.
This decision has been amply criticized for damaging the meaning of electoral democracy. Instead of following its example in Ararume v. Ugwu, where the court reinstated a wrongly substituted candidate, the court declared a person who never contested election as the Governor of the State, substituting its vote for the votes of citizens. This brings to mind the prophesy of Roberts Yates, alias Brutus, about the reckless of an independent and tenured federal judiciary making decision ‘independent of the people or any authority under the heavens.’ Chief Gani Fawehinmi attacked the decision as “an imposition on the electorates of Rivers State who when they were voting on April 14 did not have in view or consideration of Amaechi who was not a candidate in the eyes, in the minds and hearts of the electorates of Rivers States”. I understand that the Supreme Court has asked that the decision should not be referenced as a precedent.
Another case illustrative of the risk the Supreme Court runs with election case because of incompletely theorized electoral jurisprudence is the Adeleke v. Oyetola where the Supreme Court upheld the decision of the Court of Appeal overruling Adeleke’s victory at the Election Tribunal because one of the judges at the tribunal did not sign off his name in the attendance list of the tribunal. Whereas in Amaechi’s case the courts acted in pursuit of ‘substantive justice’, in Adeleke’s case, the court acted seem to act in service of ‘technical’ justice. Another case that raises allegation of judicialization of politics is the case of Uzodinma v. Ihedioha where the Supreme Court recalculated electoral results and moved the candidate who came 4th in INEC declaration of result as the winner of the elections and ordered that he be sworn-in as Governor.
What these cases have in common is that the court handed down decisions on disputed elections in a manner that seems to distract from the expectation of electorates and the theoretical fundamentals of democracy as a system of decision-making based on free expression the will of the people. The powerful sentiment behind electoral democracy is that the people decide who governs them. It follows that a set nine unelected justices should make such decisions for the people. But it is not as simple as that. Democracy will be threatened if these nine Justices are incapacitated from determining what the law is at any time. If that happens, democracy as liberal, constitutional governance is almost imperiled. So, there is need for a delicate balancing here.
- In Search of a Theoretical Explanation of Judicial Democracy in a Fragile or Fledging Democracy:
How do we strengthen the efficacy of judicial power in Nigeria’s democracy? We have noted the place of judicial power in the constitutional design. We have also noted that judicial review basically inserts the courts as the protector the rule of law and constitutional democracy, and this this insertion is controversial and exposes the judicial to risks of attack from other branches of government. These risks need to be understood before we can provide prudential guides that will help the judicial evade the attack and remain an effective branch of government. The critical question is should the courts venture this far in electoral cases in seeming usurping the role of the electorate? A related question is what should be the theoretical guide to the court in managing election dispute so that it can conserve its integrity and enhance the efficacy of its decisions?
The answer to the above questions starts with constructing a reasonable theory of judicial engagement in political disputes and interactions with the other more political branches. In other words, what is the political theory of the court? My articulation of the political theory of the court is that as a branch of government the judiciary is designed to play a political role. This role relates to the choice of who will exercise political power and how in a society. Political institutions and culture have been designed such that the power to make such decision has been structured and diffused in a manner that will secure legitimacy and effectiveness. This is why democracy is defined as the art of separation; separation of state and religion, of public and private, of branches of government. In our constitutional design, the initial decisions are made by political parties who prepare and present candidates for election. Citizens as voters often participate in the party primaries but such participation is separate from the next stage of the process. Decision at this level is essentially political and if it is made fairly the court defers to the internal process of the parties. This is how to understand the decisions of the courts that deferred to the choice that political parties make in determining who are their candidates for elections. Yes, the degree of deference that the court accords to the parties depends on the temper of the times and the court’s own intuitions and irritations. In Ameachi’s case, an irritated Supreme Court overstepped the boundaries and ‘elected’ Ameachi the Governor of Rivers State. This case has been much discredited. But it shows the changing degree of judicial deference to parties and shows that the Supreme Court can be overtly political in the choice it makes. In other instances, it could be subtly so.
The next stage of this constitutional design is the choice that voters make. This too is eminently political and receives the highest degree of deference. If voters elect a foolish and mentally unstable if the person was qualified to context, no paternalism should induce the court or election management body to change this decision. It is at the heart of democracy that such choice should not be restrained or subverted. But liberal democrats have argued that entitlement of the people to make political choices needs to be constrained to the extent of protecting institutions and procedures of democratic freedom. This is the basis of the assertion of judicial review as a desirable counter-majoritarian democratic device.
The next stage of electoral decision-making is the regulatory stage where the election management body make decision to declare winner. This is another form of voting. This decision takes the form of quasi-judicial and legislative functions. Just as electorates votes, the regulator exercises a vote to either affirm the choice made by electorates or somehow reverse or constrain such choice. The final stage is the judicial stage. The Supreme Court is called upon to exercise its power to determine who ultimately receives the mandate to exercise political power. It may be true as Justice Learned Hand of the US Supreme Court said, “It would be more irksome to be ruled by a bevy of Platonian Guardians even if I know how to choose them which I assuredly do not”. Perhaps, the Supreme Court justices are not ‘Platonian Guardians’ but their votes contribute to determining who gets to exercise political power. The electorates of Osun State in 2019 and the United States in 2000 will obviously agree that the Supreme Court made the choice of who became Governor and President respectively.
The truth is that the judiciary led by the Supreme Court has acted as an electorate. In 2007 it voted in the case of Ameachi and Omehia. In 2019 it voted in the case of Adeleke v. Oyetola. The judiciary is voting in the many elections that are being nullified by election tribunals and the Court of Appeal across the country. The judiciary also voted in Atiku v. Buhari. One argument could be that the vote that the court cast in these circumstances is legitimate. It follows the constitutional design of democratic governance. It is legitimate if it is exercised like the votes by the other political actors and institutions. That is, if it is exercised in conditions of transparency and accountability. ‘Transparency’ requires that the reason for the choice should always be made public. ‘Accountability’ requires that such choices should proceed and be subject to active public deliberation. That is, the Supreme Court should cast its votes as part of public engagement grounded in public reason. And because public reason is deliberative, citizens should freely examine such reason and critique it as it would other decisions of the other branch of government. If the Supreme Court acts responsibly and lawfully as a political institution it has a right to cast a vote. And we ought in the name of democracy to abide by this vote.
- Prudential Guides for the ‘Less Political Branch’:
But when the court acts politically it risks being demystified and perhaps refused the recognition that it deserves. We should note that the court is ‘the least dangerous branch’ as Jefferson said. Therefore, its authority rests on the belief by the public that the court is neutral and learned. When the court ventures in the arena of politics without the safeguards of neutrality and convincing rationality, then it sheds the toga of the Platonian Guardian and therefore subject to political attacks.
The problem is that when the court plays ‘politics’ through judicial review, there is no mechanism to make it amenable to the wishes of the people. The more political branches are amply amenable of the people. In the case of the court, its politics is uncontrolled and unaccountable. It decides what the people need and how justice is served. Some argue that this role of ‘Platonian Guardians’ is antithetical to the ‘active liberty’ which Justice Breyer argues is the heart of constitutional democracy. This is the antidemocracy critique of judicial review. Therefore, this should impose a restraint on the court in handling election cases.
The court faces the danger that its decisions on political matters may not be acceptable to the political authorities if they are too political or upset much of political expectation. It is also true that the court cannot avoid its constitutional responsibility of ‘saying what the law is’, as justice Marshall famously stated in Marbury case. But, because the court lacks the resources to defend itself in the case of open political warfare, its first and foremost strategy of defense is a coherent jurisprudence that is evidently principled and ideologically neutral. Professor Wechsler argues that “the main constituent of the judicial process is precisely that it must be genuinely principled, resting with respect to every step that is involved in reaching judgment on analysis and reason quite transcending the immediate result that is achieved”. So being more rational and principled helps the judiciary to stave off attack from the more political branch.
Secondly, the court must show political intelligence to survive a political climate. As a political institution, the court needs to conserve public trust. Therefore, as much as does not detract from the principled and evidence-based decision-making, the court should adapt its jurisprudence to accord with the spirit of the times. In this regard, we should consider the ‘governance theory’ of Abram Chayes who argues that judiciary as a branch of government has the right to govern. That right guarantees it the right to intervene in political disputes. But that intervention should be smart to consider when the court should defer to the other branches because they are better placed to make decision that are more accountable and responsible, and when to take over responsibility because the two branches have failed to act and the commonwealth is at risks.
In terms of practical guide to the court, it is important for judges to realize that the power of the judiciary depends on public acceptance. This acceptance is tied to whether the court is in tune with the spirit of the time. As legal scholar, Alexander Meikklejohn says with regards to the US constitution, the word is not ‘We the people of 1787’ but we the people of today. The same can be said of the Nigerian constitution. The constitution is addressed to Nigeria of 2022 and the future. Judicial review requires the court to keep in step with the people and to wisely read the political barometer.
The argument of this paper proceeds from the wise observation of Justice Thurgood Marshall that judicial power “does not derive from force of arms, and in the ultimate confrontation between suasion and military force, the Military (or executive) is likely to be at least the short-term victor”. Therefore, self-restraint is a virtue in deserving cases. And when the court needs to be activist, it needs to be articulate and present its decision as inevitable and flowing from principles of justice rather than intuitions of justice. Where the court’s intervention in political matters does not rest on solid rock of reason and principle, forbearance and reversion to other more political branches are virtuous conducts.
Of course, justice cannot be rendered devoid of society. As part of the political society, the judicial power rests on the commitment of society to the rule of law. Therefore, as Justice Nnaemeka-Agu puts it, “It is therefore only a complete appreciation of the importance of the judiciary in the scheme of things for the maintenance of law, order and good government that can keep it alive and active. It ought to be appreciated that the only alternative to the role of the judiciary in a democracy is anarchy.”