It is ironic that whilst we think that increasing involvement of judges in determining who gets elected as political leader is inimical to consolidating democracy, we are forced to continue to call on judges to intervene in electoral matters for the sake of justice. Of course, courts are called temples of justice because they are fit and proper to receive the intercessions of a people who are brutalized, oppressed, and deprived of justice. So, the irony is not so depressing because when we beckon on judges to act in the name of justice, we are giving concrete expression to the expression that courts are temples of justice.
The conventional theory of constitutional democracy holds that there are two political branches and one non-political branch. The political branches are the executive and the legislature. Members of these two branches are elected by the people and have the liberty to act in furtherance of their interests. The theory of representation by foremost parliamentarian and jurisprudent, Edmund Burke, is that legislators are trustees of the people. As trustees, they are free to decide public interests according to their own understanding of what is in the best interests of the people. A contrary theory of representation argues that the legislator is but an agent of the people: he must do what the people want him to do, not what he thinks is best for the people. Whether legislators are agents or trustees of the people, the common logic is that the legislator act politically. To act politically is to advance the interests of one group notwithstanding that such interest is not rationally compelling. That is why we do not excoriate legislators who fight to ensure that projects are sited in their constituencies notwithstanding that economic rationality does not favor those places. We consider them good representatives. But we shame a judge who delivers judgement in favor of his relatives because of consanguinity.
So, the judicial branch is not so designed. Judges are not representatives of the people. A judge does not represent his family, his friends, or his constituency. He represents God in the religious sense, or rationality in ultra-rationality. Judges do justice. And justice is giving people what they deserve, not what they desire. We can see from this social portraiture that judges have more gravitas and bona fides to act as statesmen in times of troubles than representatives and executives. As we say, politicians care about the next election, but statesmen care about the nation. Judges ought to be statesmen.
The concept of judges as statesmen has a strong implication for sustaining democracy in difficult times and places. In good times and places democracy is safe even with interest-based politics. The foundations of democracy rest on the rule of law. The rule of law means that all persons and authorities are subject to the law; that the law respects basic equality of all persons and the law is executed without deference to prerogatives and merits, apart from the merits of justice.Overlaying the foundations of rule of law is accountability. There is no exemption from the rigor of the law because the institutions of law enforcement are professionally commitment to fair and equitable implementation. In such a society where justice is routinized in administrative practices, the court plays a passive role and is self-restrained. Judges merely adjudicate in matters where vagueness obscures fair and equitable administrative of justice by the political branches.
But in a society where justice is not routinized as administrative practices become of political capture by a powerful minority or a numerical majority, the court moves from passivity to activism to reestablish the rule of law. The legendary Justice Oputa put this pointedly thus: “Whenever the law is used to foster social, racial, economic or sex oppression, the judiciary should quickly intervene to redress the imbalance and thus restore justice”. The court does not act when justice is routinized. The court acts when justice is denied, especially when it is structurally denied.
This articulation of judicial activism bodes well with a powerful theory about the judiciary propounded by Harvard professor Abram Chayes. It is the ‘governance’ theory of the court. Chayes argues that the court has a right to govern just like the other branches of government when the other branches fail to do the job. Ordinarily, the court forebears to govern trusting the more ‘political’ branches to govern. But where the two fail to govern, the court steps in. Then, judges become statesmen. This explains the various curves of judicial activism.
US Supreme Justice Stephen Breyer traces the context of judicial activism in the constitutional history of the United States. He shows different periods when the US Supreme Court shifted the gear to promote justice or to disrupt structural violation of the people’s rights. For example, he argues that before Justice Warren, the US Supreme Court “overly emphasized the Constitution’s protection of private property ‘as against rights of political participation. In the Warren era, the Supreme Court interpreted the constitution to move away from the logic of property right in the Lochner v. New York case and find a basis in the constitution for ‘active liberty’ for citizens to govern themselves through the principle of ‘one man one vote’. By so doing, the Supreme Court under Chief Justice Warren reconstructed the United States away from the legacy of Jim Crow.
The court is a political institution. So said Robert Dahl. The court is a political institution because of the role that it plays in the political management of the society. In his book about the Nigerian Supreme Court. Professor Isa Sagay paints a picture of the Nigerian Supreme Court that rose up to defends fundamental rights against the corrosion of military dictatorship. That heroic Supreme Court of Eso, Obaseki, Oputa, Uwais and others understood that in times of crisis the court become a political institution that defends the rule of law from new threats. The Uwais court would not have done such if the structure of justice had not been eroded by military dictatorship.
The greatest seduction today will be to believe that we are now an entrenched democracy and therefore the court should carve for itself a routinized retail work that does not override the iniquities of the political class. That is a recipe for disaster for the commonwealth and irrelevance for the court. The true description of Nigeria today is, as the University of Guttenberg’s acclaimed ‘Verities of Democracy’ report 2022 puts it, ‘an electoral autocracy’. Nigeria is not yet a democracy by the evident capture of state institutions by ruling elites. The 2023 election has further cemented this reputation. The election has seen the recklessness of Nigerian politicians who refuse to respect the most fundamental tenets of electoral democracy.
We have always had electoral irregularities and frauds. But we have never had this level of criminalization of elections and wanton collapse of regulatory oversight. The election manager, Independent National Electoral Commission (INEC) refused to apply its own electronic safeguards in a bewildering capitulation to political banditry. Even the basic regulatory tasks like determining the eligibility of candidates to stand for elections and whether candidates have multiple nominations, regulatory oversight that could be established without expending resources, were abandoned. The regulator did not bother to apply simple rules, even rules that it made pursuant to its statutory powers.
The Supreme Court has inherited the regulatory failures of the election manager. It has been saddled with correcting the impunity of the political class. It beholds that the country is disintegrating on account of reckless disregards for basic rules of justice. It sees the continuing immiseration of the people whose anger is boiling over. The judges know that unrebuked impunity has established a powerful incentive structure that will inexorably lead to the total collapse of the rule of law. In such situation, judges must become statesmen to save their beloved country. They have many things challenging them. They will contend with fear for their lives. They will contend with favors from corrupt politicians. But they should brush aside all these and do justice, even if the heavens fall.
All eyes are on the judges.