Nigeria’s election concludes with the judges, and about 700 tribunal cases will overwork the judges. We expect wisdom, guts, and intellect to fix all political branch mistakes, purposeful or not. We trust judges and their authority of judicial review to condemn impunity, correct error, and advance electoral justice.
Strangely, we must continue to rely on judges to interfere in election processes for fairness, even if we think judges should not be involved in choosing political leaders. Courts are considered temples of justice because they may hear the pleas of the oppressed and abused. Hence, the irony is not so gloomy since we are giving real embodiment to the idea that courts are temples of justice when we call on judges to act.
Constitutional democracy assumes two political and one non-political branch. The executive and legislative branches govern. The people choose these two branches and can represent their interests. Edmund Burke, a leading parliamentarian and jurist, believed politicians were trustees of the people. As trustees, they can decide public interests based on what they think is best for the public.
A different view of representation holds that the legislator is an agent of the people and must do what they desire, not what is best for them. Legislators should behave politically whether they are trustees or agents of the public. Political action promotes one group’s interests even if they’re not sensible.
We don’t criticize politicians who battle to site projects in their districts even when economic reason doesn’t. They represent well. Yet we humiliate a judge who favours his kin because of consanguinity.
Hence, the judiciary is not designed. Judges don’t represent citizens. Judges do not represent their families, friends, or constituencies. He represents a religious God or ultra-rationality. Judges adjudicate. Justice is giving people what they deserve, not want. This sociological portrait shows that judges are better statesmen than lawmakers and executives. Statesmen care about the nation, not politicians. Statesmen should judge.
Judges as statesmen help democracy survive in tough times. Democracy can survive interest-based politics in good times. Law underpins democracy. The rule of law means that all people and authorities are subject to the law, respects fundamental equality, and are executed without regard to prerogatives or merits other than fairness.
Accountability underpins legislation. Law enforcement organizations are committed to fair and equal implementation. Thus, the law must be followed. In administrative justice societies, the court is passive and self-restrained. In unclear cases, judges adjudicate.
In a culture where justice is not a powerful minority or numerical majority captures routinized and administrative processes, the court becomes active in restoring the rule of law. “Whenever the law is exploited to support social, racial, economic or sex injustice, the court should promptly act to remedy the imbalance and thereby restore justice,” said Judge Oputa. Routine justice prevents court action, and when justice is denied—especially structurally—the court acts.
This definition of judicial activism fits Harvard professor Abram Chayes’ forceful judiciary thesis. Court “governance” theory. Chayes believes the court should govern when the other branches fail. The court usually defers to the “political” branches. If the two can’t govern, the court does. Judges become statesmen. This explains judicial activism curves.
Stephen Breyer traces judicial activism in American constitutional history. He highlights the US Supreme Court’s shifts towards justice or structural violations of people’s rights. He claims that before Justice Warren, the US Supreme Court “overemphasized the Constitution’s protection of private property ‘as opposed to the rights of political engagement.” In the Warren period, the Supreme Court construed the Constitution to move away from property right rationale in Lochner v. New York and found a basis for “active liberty” for individuals to rule themselves through “one man, one vote.” The Supreme Court, under Chief Justice Warren, rebuilt the US from Jim Crow.
Courts are political. Robert Dahl stated. The judiciary is political because it manages society politically. His Nigerian Supreme Court book. Professor Isa Sagay describes the Nigerian Supreme Court that defended fundamental rights against military oppression. That courageous Supreme Court of Eso, Obaseki, Oputa, Uwais, and others realized that in times of crisis, the judiciary becomes a political institution that protects the rule of law against new dangers. The Uwais court would not have done so if the military rule had not weakened justice.
The biggest seduction today will be to assume that we are now an entrenched democracy and that the court should carve out a routine retail work that does not overcome political class inequities. That would doom the commonwealth and the court. According to the University of Guttenberg’s famed “Verities of Democracy” study in 2022, Nigeria is “an electoral autocracy.” Nigeria is not a democracy because governing elites have captured governmental institutions. The 2023 election solidified this reputation. Nigerian politicians have disregarded electoral democracy’s most fundamental principles throughout the election.
Election fraud has always occurred. Yet election criminalization and regulatory breakdown have always been better. INEC, the election management, capitulated to political banditry by not using its own computerized protections. Even fundamental regulatory functions like assessing candidate eligibility and whether they had multiple nominations were abandoned. The regulator ignored even its statutory restrictions.
The Supreme Court inherited the election manager’s regulatory failings. It must fix political impunity. It sees the country falling apart due to lawlessness and observes the enraged people’s misery. The judges recognize that impunity has created a tremendous incentive system that will inevitably bring down the rule of law. To defend their nation, judges must become statesmen. They face several obstacles. They will fear death, and they’ll fight crooked politicians. Notwithstanding these, they should do justice.
Judges are scrutinized.
