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To What Extent Is Judicial Activism Desirable in a Constitutional Democracy Like Nigeria?

Seun is an undergraduate student of law in the University of Lagos, Nigeria.



Nigeria since her birth has always struggled with the term “constitutional democracy”. The power of the government and its limitation has been a difficult question to answer. The judiciary, an arm of the Nigerian government s.6(6) of the 1999 constitution of the federal republic of Nigeria has always tried to check the excesses and contain the actions of the legislature and executive. To what extent is the judiciary allowed to use her discretion in matters of checks and balances, enforcement of the doctrine of separation of power and the limitation of the government.

Judicial activism real meaning is construed and differs from philosophies and ideologies. Black law dictionary says

is a philosophy of judicial decision making, whereby judges allow their personal view about public policy, among other factors, to guide the decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations.

Judicial activism is that mechanism for exercising judicial power which seeks fundamental re-codification of power relation among dominant institutions of the state, manned by members of the ruling classes, Mohammed Aslam alias Bhure v. India. Similarly,Russell (1989) defined judicial activism as

the judicial vigour in enforcing constitutional limitations on the other branches of government and their readiness to veto those policies on branches of government on constitutional ground”. Given the federal structure of Nigeria Nwabueze (1982) “may be constitutionally invoked to invalidate legislation or executive actions which are inconsistent with the constitution calibres.

It is the theory of popular participation of courts in the decision-making process.

Nigeria country that has been plagued in the early past by the erosion of military government which impeded on the rights of her citizens as seen an increasing rise of expectation in the judiciary for protection and enforcement of their rights has citizens since 1999. Various ethnicities, culture in Nigeria has looked up to the judiciary intervention to shape the public sphere. The Nigerian judiciary plays a vital role as a social activist. Does the judiciary do enough? But in the stunted young Nigeria progressive democracy, the judiciary role is vital and growing. This role and judiciary intervention depends on the Nigerian constitution. Nigeria operates a written constitution thus the judiciary exercises limited power just as the other arms of government. Section 6(6) of the CFRN establishes and gives function to the judiciary. These functions give the court ability to provide citizens with access to the legislature and executive, enabling them to challenge unpopular and oppressive policies through litigation like the case of A.G(Abia) v. A.G (Federation), also the recent case of SERAP and 176 others v. the federal government. Where the federal government of Nigeria banned the social media web Twitter.

The English common law and The United States of America judicial practise has instinctively heavily influenced judicial activism in Nigeria. The origin of judicial activism is linked to the Marburry v. Madison, this landmark case established that the American courts have the power to strike down laws and statutes that they find in violation of the United States.

It is emphatically the province and duty of the judicial department to say what the law is. Marburry, 177. (38).

In other cases Roe v. Wade, United States v. Morison, Lawrence v. Texas. There is no provision in the United States constitution where the power of judicial activism is contained.

In Nigeria, the judiciary has come to establish itself as an independent organ of government in the Nigerian democracy. Since the enactment of the 1963 constitution subsequently 1979 and 1999 constitution of Nigeria. Some cases of judicial activism as being evidenced like in Adegbenro v. Akintola, the then governor of the Western region (Adesoji Aderemi) removed chief Akintola from the office of the premier and appointed the defendant.

“The law states that the governor shall not remove the premier from office unless it appears to him that the premier no longer commands support of majority members of the house of assembly”

The amendment settled the question in favour of the plaintiff; it was to be deemed that he had not been rightfully removed from office and he remained the premier of the region, that was the necessary implication. The defendant recognised that as a valid legal position and at hearing the cost of his application the plaintiff abandoned his appeal from the judgement of the High court. His appeal was dismissed and the question is out of the way. If regard cannot be given to the order in council on the question of who is the rightful premier, no more effect be given to its direction against him to pay costs. The amendment law was intended to deprive the defendant of his costs. Maxwell on the interpretation of statutes, at p.286 of the 10th edition:

It is presumed, where the objects of the acts do not obviously imply such an intention, that the legislature does not desire to confiscate the property or encroach upon the right of persons, it will manifest it plainly, if not in express words at least by clear implication and beyond reasonable doubt.

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There is no mention of the suit, or the parties, or of costs in the amendment law, and in the court's opinion, there is no clear implication that the legislature intended not only to settle a political question but also to deprive the applicant of his costs. In cases like Williams v. Majekodunmi, Council of University of Lagos v. Ademolekeni. The judiciary has since assumed the power to void and nullify on constitutional grounds excesses or inconsistent acts of the legislature and executive.

There is a strong rationale to view judicial activism as democratically legitimate in that it provides checks and balances as expected under the separation of powers. Should the constitution allow for more room for judicial activism? Because ultimately the legislature would almost always have the power to re-enact, reverse, modify or even ignore and void a judicial decision. It is also posited that the words in a legal instrument may sometimes be ambiguous, abstract and meaning indeterminate when you apply them stricto sensu or the interpretation of the law requires an intervening act, FRN v. Osahon.

Judicial activism is usually required;

  1. When the legislation offends the principle of separation of power, the principle of federalism
  2. When it is inconsistent with the provision of the constitution
  3. When legislation is aimed at taking away individual rights guaranteed under the constitution
  4. When the legislature fails to comply with the procedure set down to do a particular act.

There is no saying to which extent is judicial activism desirable in a constitutional democracy like Nigeria because presently simply not enough. The legislature sometimes unlawfully intrudes judiciary steps as demonstrated in the popular case of Oputa v. Bababangida. The judiciary should be able to nullify and void laws without interference from other arms of government. See AG Federation v. AG Federation. [1][2][3][4][5][6][7][8][9]


International journal of African and Asian studies- An open access international journal, vol 4 2014

Obilade: “The Nigerian legal system”, 2011

Nwabueze BO (1982) the presidential constitution of Nigeria, London Sweet & Maxwell.

[1] 1 Cranch 5 United States 1803:137

[2] 529 United States 2000: 598

[3] 410 United States 1973:113

[4] 539 United States 2003:558

[5] 1 All Nigerian Law Report 1963:305

[6] 2 Supreme Court of Nigerian Law Report 1963:26

[7] Nigeria Supreme court cases 1970:210

[8] 4 Monthly Judgment of Supreme Court 2006:58

[9] 1 Supreme Court 2003:86

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