JUDICIARY AND DEMOCRACY IN NIGERIA

 CONTENTS:

1.0       Introduction

2.0       Objectives

• Main Content
• The Emerging posture of the judiciary for Democracy
• The Role of Judges in Democratic Nigeria
• The Separation of Power in Nigeria

4.0       Conclusion

5.0       Summary

6.0       Tutor Marked Assignment

7.0       References/Further Readings

INTRODUCTION

The judiciary known in legal parlance as the temple of Justice has been defined as the branch of government invested with the judicial power, the system of courts in a country, the body of judges, and the bench. That branch of government that is intended to interpret, and apply the law. However, the survival of our democracy, it has been argued, depends almost entirely on how effectively the third arm of the government – the judiciary – is able to play its constitutionally assigned role as the arbiter of disputes. But in developing democracies like ours, the effectiveness of the judiciary in this regard sometimes sets it on collision course with especially the Executive, because of the inevitability of judicial pronouncements adversely affecting the Executive or its agencies sometimes.

  OBJECTIVES

In this Unit you will know the following:-

• The role of judiciary in the emerging democracy
• How independent can a judge be in a complex society like ours?
• The position of judiciary during the Military era

MAIN CONTENT

The emerging posture of the Judiciary for Democracy:

The judiciary has in fact, being playing a pivotal role in its efforts to rescue the country from the recklessness of the executive and the legislation. Confronted with their lawlessness, they said that Nigeria’s democracy was still young. The implication is that the growth of democracy will be fast-tracked in Nigeria so that everybody will learn to do things according to law and learn not to exceed his or her jurisdiction. In this regard therefore, if the power of the judiciary is enhanced, it will go a long way in sustaining and encouraging democracy.

However, it is commendable that the judiciary has always survived those moments of Military rule with the least interference. Successive military regimes assume executive and legislative, but very limited judicial functions. The Military ruled by Decrees and Edicts and even if it has conceded that the citizenry was often denied the benefit of democracy, it is a fact, Military regime in Nigeria have been more active in the area of law reforms than the civilian regimes. Decrees and Edicts were passed with dispatch even in areas where civilian legislators were traditionally fettered by political considerations and bureaucratic red tape. Except for the breaches fundamental rights and abuses of the rule of law, plus legislative ease has advanced the development of Nigerian law.

It is noteworthy that all successive Military administrations provide for the supremacy of Decrees over the Constitution with the provisions of the latter superseding in the event of conflict, and thereby reversing the concept of constitutional supremacy. However, the Nigerian judiciary has come of age. It has of recent been on the side of the Constitution. When judiciary is working, ultimately, people will be acting with caution, people will be happy with democracy and government will have the time to be concerned with development projects and so on.

The Role of Judges in a Democratic Nigeria:

Although, the Military regimes of the past and present administration in their apparent resolve to keep the judiciary down, did leave the country to operate under such procedures that were archaic and hampered the dispensation of justice. The untoward consequences have been the people’s apathy towards litigation, as it was perceived as an exercise in futility. If this trend had continued however, in the long run, the citizenry would have been the ultimate losers, when the rule of law is relegated to the behest of those who wield political power.

In Nigeria, however, it is not the province of judges to make law, but to interpret and apply the law as it is, whether it be English law, Statute law, customary law and so forth. Therefore judicial legislation does not obtain in Nigeria. Where there is a gap in the law, it is not for the courts, but for the legislature to amend and reform the law. The role of judges in Nigeria is essentially to apply the law as made by the legislature. This is the view of the positive school of law, or positive theory of law, which is that, law, is as made or as it is, whether good or bad until it is changed by amendment or repeal. Therefore, as interpreters of the law, a court is not to assign meanings to the clear, plain and unambiguous provisions of a Statute so as to make it conform to the courts’ own view rather than what it ought to be.

The Separation of Powers in Nigeria:

The most significant challenge to the entrenchment of separation of powers is Executive’s dominance over the other two arms of government in Nigeria. This derives from the advantage the Executive enjoyed during the long history of Military rule. This culture of Executive dominance has been carried over to civil rule, and it appears to have been worsened by the emergence of a strong and influential Presidency of 1999 – 2007. At all levels of government, the relative weakness of the Legislature vis-à-vis the Executive is shown in the excesses of the Executive and in the attempts to control the Legislature, especially Executive influence in the oversight over the Executive.

However, the Legislature has been able to resist the Executive on a number of significant issues. While the President vetoed 10 of the bills passed by the two houses, the national parliament used its powers to override four of presidential vetoes. Hence a significant number of Nigerians think that the Legislature is fairly effective in exercising oversight over the Executive.

Thus, since the return to democratic rule in Nigeria in 1999, the Judiciary has been able to demonstrate its independence and competence in landmark judgments concerning the powers of the National Assembly to extend the tenure of office of local government Chairmen, the registration of political parties, state control over natural resources, and the management of the Federation Account, among others.

SELF-ASSESSMENT EXERCISE

What are the most significant challenges to the entrenchment of separation of powers between the arms of government in Nigeria?

 CONCLUSION

In this Unit we have discussed the judiciary and democracy in Nigeria, the role of judges, and the influence or impact of Military regimes in our judiciary. Thus, we conclude this Unit by saying, that against all odds, the judiciary has continued to discharge its functions very well and courageously too. Judges are able to catch up with the dynamics of our ever changing society and are recharging course bearing in mind the famous words in the Justinian Institute, Ignorantia Judicis est Calamitas Innocientis, meaning the ignorance of the judges is the calamity of the innocent.

  SUMMARY

Judiciary is now working in conformity with the basic doctrine of separation of powers. If we have a vibrant judiciary, there is the tendency that democracy will be deepened, because people in the three arms of government – executive, judiciary and legislature, will know that they are supposed to check one another.

  TUTOR MARKED ASSIGNMENT

Compare and contrast the role of Nigerian judiciary under a democratic administration and under the Military regimes

  REFERENCES/FURTHER READING

Aturu – Judiciary Is Showing Great Courage This Difficult Time, Sunday Independent, May 6, 2007, P.B9

Ese Malemi, (1999) – Outline of Nigerian Legal System, Grace Publishers Inc. Onyema Omenuwa – Shouldn’t Retired Judges Practise As Advocates? Daily Independent, March 1, 2007, Law – P.1

Sanni, A. O. ed., (1999) – Introduction to Nigerian Legal Method, Ile-Ife, Kuntel Publishing House.