Yusuf Sulayman, PhD Candidate, School of Law, University of Portsmouth. yusuf.sulayman@port.ac.uk

9 October, 2023

Cite: Yusuf Sulayman, An Independent Court Expounds the Law, Not Expand it, Global South Network Blogs, 9 October 2023. https://globalsouthnetwork.com/an-independent-court-expounds-the-law-not-expand-it/

Introduction

The relationship between law and politics holds significant importance, especially considering the role law plays in shaping politics across the globe. Since politics is largely built upon and around personal interests, and fair play entails that a person’s right ends where another’s set in, there is hardly an issue in the elite political space of Nigeria that has not been tested in one way or the other since the adoption of democratic practice into the nation’s system of governance. Politigation so to speak characterizes the popular culture of elite Nigerians to litigate virtually every political outcome. Beyond politics, different agendas are strategically pushed to the court for affirmation or differentiation. The nature of issues submitted to the courts has grown from simple to complex questions of social and political implications. The other branches and independent powerful actors keep growing in the use of power and stature to drive policies of public concern. Judicial control of those activities must grow correspondingly (Cappelletti, 1983). The question now extends beyond whether the court should be able to check the excesses of the political branches and override them on public policy grounds where necessary. This paper does not address this inquiry. Rather, I delve into the emerging question regarding how and not if, the court should engage in addressing complex issues stemming from systemic needs.

Independence of courts: mapping the boundaries

Judicial independence is first a social fact that owes its foundation to tradition. There was first a long-standing belief that the judiciary – collectively – and its judges – individually – should enjoy effective guarantee against external domineering. This, in turn, laid the foundation for an established legal norm (Valois, 2013). The judiciary is an essential part of a democratic setting. It should be able to base its decisions on hard convictions of law, beyond the extraneous public policy or private interest notions (Fiss, 1993). Suffice it to note that, judicial independence is not an end on its own, it is more of a means to achieving impartiality in judicial decision-making (Cappelletti, 1983). The doctrine is thus underpinned by the doctrine of separation of powers, which is a doctrine that continuously evolves as the branches seek to expand their authority. It is an idea that supports the use of one branch to check the other within the same system, rather than to totally separate them as the name might suggest. (Shetreet, 2000). In this sense, while the judiciary needs to be insulated from interference from the other two branches – executive and legislature – in order to function well and sustain the confidence of citizens, it must also purge itself and resist the temptation to – in the absence of specific authority – dabble into the functions of the other branches (Shetreet, 2000). It thus becomes important to understand the exact reach of the court’s function within this model.

Going by this long-standing constitutional arrangement, the roles of each arm of government are clearly mapped. The three main organs of government – executive, legislature, and judiciary – operate equally and independently pursuant to the Constitution of the Federal Republic of Nigeria 1999 (CFRN 1999). Sections 4, 5 & 6 of the CFRN 1999 assign the Judicial, executive, and legislative powers of the federation to the courts, with the Supreme Court of Nigeria (SCN) serving as its apex, followed by the Presidency and the National Assembly respectively. What more could demonstrate equality of the branches than the fact that all the organs were created by distinct sections of the constitution? As much as judicial independence is desirable however, it must operate within reasonable and well-defined limits. In Cotecna Int’l Ltd. V. Ivory Merchant Bank Ltd (2006) LPELR-896 (SC) p 13 paras B – D, the SCN stated quite succinctly that ‘the role of the legislature is that of making the law, or law-making, [and] the role of the Judiciary is that of interpretation of the law.’  Without acting oblivious of the fact that the courts also make laws, this form of law is clearly as derived from its interpretative and judicial review functions. The power of interpretation is to expound the law, and not to expand it. The words of a statute speak the intention of the legislature. Where the language of a statute is clear and unambiguous, courts have no jurisdiction to introduce any interpretation or construction not borne-out of the clear and unambiguous language. Judicial legislation sets in, the moment the courts dabble into this exclusive domain of the legislature.

The realm of judicial legislation

Through its bold and decisive discharge of its functions, it is the judiciary that will establish order and provide a sanctuary for justice to the repressed regardless of their place in society.  Many times, the SCN is faced with instances where there are inadequate provisions in the law made to cater for certain exigencies. The court would therefore not be overstepping into legislative duties if it suppresses a mischief and advances a remedy. In the words of per Aderemi JSC, the judiciary, especially the SCN, ‘must not only be final in name, but must be seen to be really final in the sense that they have the legal bite that makes judgments truly conclusive’.  The SCN has boldly addressed numerous instances where it expounded the laws, filling significant gaps.  Notable examples include Ararume’s case regarding the court’s authority to scrutinize domestic affairs of political parties, Atiku’s case on the union and inseparability of the President and Vice-President throughout their joint term, and ‘the case of the five Governors’ regarding oath-taking and the recognition of their de facto and de jure tenure in office. In these and similar cases, the court adopted expansive interpretative approaches. This encapsulates the significance of the literal rule of interpretation and its complementary rules – golden and mischief. The court endeavors to deduce the true intentions of lawmakers or the law itself, by a community reading of the CFRN and indeed other statutes regarding the subject at hand.  Ultimately, the court’s decision must grounded within the confines of existing provisions. In the event this becomes impossible for the court, then an intention cannot be inputted. Passing remarks can be made by way of an obiter dictum as the court did in Atiku’s case. In the cases above and similar cases, the SCN conformed with its interpretative role. One can only agree or disagree with the court in terms of its reasoning and not its role. To go beyond and perform tasks that legislators did not undertake would be akin to assuming their position. This practice is what I regard as “legislating from the bench”.

There is no power without limits and the true strength of those in power lies in their ability to discern when to proceed and when to exercise restraint. The ability of the judiciary to hold rulers and other influential actors accountable must be balanced with their own internal accountability. The rule of law entails the realization that the exercise of public power including judicial power should be defensible in line with standard rules and guidelines (Finn, 2004). It is associated with the responsible and principled exercise of governmental power. The exercise of judicial review by the judiciary serves to prevent arbitrary use of government power and compel all stakeholders to conform to constitutional norms (Larkins, 1996). Consequently, the judiciary must refrain from exercising its powers or independence arbitrarily. However, the SCN has not consistently demonstrated prudence in its exercise of power. Again, in this regard, I will only cite a few notable cases such as Amaechi’s case where the court against all logic made someone who did not participate in an election the Governor – even without asking for such relief, Diri’s case where the supreme court – against legislative spirit – rendered the functions of an Election Petition supine, Wada’s case where the court literally repeated the error in Amaechi’s case, and CBN’s case where the court technically amended the CBN Act. On the one hand, it is easy to tag these decisions as bold and creative, after all, only an independent and active judiciary will go beyond merely endorsing a regime’s bidding (Georgios, 2017).

However, these cases appear to reflect emotions and sentiments rather than genuine boldness or creativity. And that is not independence. A truly independent court requires an impartial and objective judiciary that can transcend personal emotions, sentiments, or allegiances that conflict with the law. An independent court should have the ability to rise above such influences and prioritize adherence to the law above all else. It is rather a sign of non-independence to take on the role of another branch. Judges must be free to decide fairly, but such decisional freedom cannot undermine the principles of institutional responsibility and internal regulations. Citizens trust an independent judiciary. Such independence requires freedom from executive and legislative interference. But a judiciary too must avoid improperly interfering with the other branches. If the SCN is seen to frequently usurp legislative powers, it will not be uncommon to see retaliatory court-curbing actions from the legislature.

The place of strategic judicial decision making

Judicialization of politics, or what I term as politigation is a global trend. The courts are becoming more and more involved in the intermingling of powers in high places of government (Griffith, 1997). As opposed to the popular notion that the judiciary is the weakest of the branches of government, the opposite is – maybe – the case in reality. Constitutional supremacy has made the courts – its guardian – the gravitational centre of democratic states. The court as a strategic actor is thus an age-long concept with emerging tentacles. Strategic judicial decision-making is a natural offshoot of the separation of powers model. Within the integrated design of this model, the court is vested with the power of interpretation and of judicial review. However, over time, its judicial review ambit keeps expanding as the court is increasingly relied upon to address complex disputes encompassing moral, public policy and political undercurrents (Hirschl, 2008). For the court to evolve with time and the complexities that come with it, it must react to its environment or better still, the court must be politically expedient in reaching its decisions. The courts must not only do justice in accordance with the law, they must also balance not replace this with applying the law according to the justice of each case.  At the moment, nothing within this design suggests that the court will progress to usurping known powers and arrogating unknown powers. Nothing within the concept also suggests a new role of ‘legislating from the bench’. Not even in jurisdictions like the United States where supreme court justices are appointed along partisan considerations.

Strategic judicial decision-making rests on the strands of activism and creativity. And these are regular features of independent courts. The SCN is not entirely an exception. But creativity and activism suggest that judges will think outside the box in resolving complex, novel and emerging issues arising from the exigencies of that time to create a fitting perspective out of an existing framework. Thinking outside the box has never suggested that the box will be broken or turned into a ball. Rather than being strategically involved and assuming an active policymaking role, I argue that the SCN often tends to endorse the policy preferences of influential actors, particularly those who have appointed them, which goes beyond its legitimate jurisdiction. This is at least the impression painted. The overexertion of judicial powers might be disregarded if the court’s appointment process was not skewed in practice.  the skewed appointment process might be overlooked for other reasons if the justices don’t overexert their powers. But both occurrences are more than mere coincidence. The growing deference to the judiciary by the other arms and powerful actors is rather an attempt to bank on its legitimacy to pursue personalized agendas. Much like a scrabble for the court’s approval. Within this lies the intricacies of interferences that keep waning its much-revered legitimacy, and independence. This is why the court must exercise caution. Over-exerting creativity and activism in the name of upsetting the legislature – or the executive – does little, if at all, to change a political course as they always claw back (Griffith, 1997). The better way to be strategically involved is to situate new concepts within an expounded context rather than entirely replace legislative intentions.

The supreme court – like other courts in Nigeria – is built to be non-partisan, and this must reflect in its choices. The policy preferences of its justices must be that of the Nigerian State. Not measured by the wishes of a regime, or opposition to a regime, or even public mood. Political expediency must be rationalized within legitimate bounds. That is why the court is allowed to issue obita dicta. Sentiments can be expressed by way of dictum but never should it be a justification to transgress the law. This is not to advocate for judicial timidity or conservativeness but for caution and self-restraint. The court cannot pose as the chief circumscriber of powers, yet assume the role of its chief flouter. As much as the growing trends in politics and governance requires the activeness of the judiciary as a strategic player, there is still the need to maintain a clearly defined boundary and respect it.

Conclusion

A look into the pattern of decisions of the supreme court reveals its penchant to overreach its powers. It hides under its wide discretions to legislate from the bench. It is true that law-making is not the exclusive preserve of the legislature. Judges are equally lawmakers. But the scope must be clear to both the judges and the advocates of extensive judicial powers and judicial-supremacists. The concept and import of separation of powers – from where strategic judicial decision-making evolves – must be properly contextualised. The law-making role of the judiciary is in the context of its statutory interpretative and judicial review functions. It is the decision of the courts on issues submitted to it, and the principles derived from their interpretative functions that accumulate into a body of law (Griffith, 1997). And as much as they must meet social desire and changes, courts must operate within the scope of being ‘statutory interpreters’.

Works Cited

Cappelletti, M. (1983). ‘Who Watches the Watchmen?” A Comparative Study on Judicial Responsibility. The American Journal of Comparative Law, 31(1), 1, 87.

Finn, J. E. (2004). The Rule of Law and Judicial Independence in New Democratic Regimes. The Good Society, 13(3), 12. Retrieved from https://www.jstor.org/stable/20711182

Fiss, O. M. (1993). The Limits of Judicial Independence. The University of Miami Inter-American Law Review, 25(1), 57, 59 – 60. Retrieved 11 25, 2021, from https://www.jstor.org/stable/40176330

Georgios, D. (2017). Measuring judicial independence in international law: Putting together the pieces of the puzzle. Maastricht Journal of European and comparative law, 24(4), 538.

Griffith, J. A. (1997). The Politics of the Judiciary (5th ed.). London: Fontana Press.

Hirschl, R. (2008). The Judicialization of Mega-Politics and the Rise of Political Courts. The Annual Review of Political Science, 11, 93, 94.

Larkins, C. M. (1996). Judicial Independence and Democratization: A Theoretical and Conceptual Analysis. The American Journal of Comparative Law, 44, 605. Retrieved from https://heinonline.org/HOL/P?h=hein.journals/amcomp44&i=611

Shetreet, S. (2000). The challenge of judicial independence in the twenty-first century. Asia Pacific Law Review, 8(2), 153, 155.

Valois, M. (2013). Judicial Independence: Keeping Law at a Distance from Politics. Ontario: LexisNexis.

Yusuf Sulayman is a lawyer with over 8 years of experience teaching and practicing in Nigeria. He specializes in helping clients resolve a variety of issues from corporate to property and election disputes. He has also worked for non-profits especially in the education and policy spaces to provide sustainable and replicable solutions to challenging issues that affect mostly the underprivileged members of society. He has authored and published several scholarly papers that are well-read and cited. He is currently an Associate Lecturer in Law at the University of Chichester, and a PhD researcher at the University of Portsmouth, UK. His research focus is on public law, especially as relates to the empirical assessment of the working of courts in Nigeria. His thesis challenges the existing order of assessing judicial independence by shifting attention to the role of normative social influence on institutions and how that plays out within the judiciary.

Yusuf Sulayman can be reached at yusuf.sulayman@port.ac.uk