This is a sequel to my treatise published by ThisDay Friday January 8, 2016 titled: ‘RULE OF LAW AND FIGHT AGAINST CORRUPTION’ juxtaposed with the secondary subtitle headlined “Any method used in fighting it is fair, argues Nnamdi Ebo”. That purport from the subtitle wasn’t my position and I thought it wise to elucidate hereto on the intricate legal nuances I tried to ventilate therefrom. As a legal scholar, I was miffed with the insinuation from that leading subtitle. However, most readers who knew the direction I towed in the judicial discourse and the social dialectics in that treatise quarreled with that ‘label’ on me. That subtitle necessitated this afterburner: “Judicial Activism and Corruption Fight”.
‘Judicial Activism’ is a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions. Keenan D. Kmiec penned a comment in a 2004 California Law Review that Arthur Schlesinger Jr. introduced the term “Judicial Activism” to the public in a Fortune magazine article in January 1947.
“Judicial Activism’ was what I adumbrated in the aforesaid treatise of Friday January 8, 2016. “Rule of Law” was never extricated in the said treatise. It is settled in advanced democracies with advanced legal systems that major societal problems like CORRUPTION can only be solved by casing it within a legitimate form of judicial review, postulating that the interpretation of the law must change with changing times. “Rule of Law” as understood by many Nigerians, especially antagonists, is ensconced within the purview of personal interest(s).
The question of judicial activism is closely related to constitutional interpretation, statutory construction and separation of powers. Law and politics are inseparable and judicial decisions must be “result-oriented” because no result is foreordained. I believe in the ‘Learned Hand Dictum’ that the words a judge must construe are ’empty vessels’ into which he can pour nearly anything he wills in furtherance of the societal good – like fighting corruption.
From this perspective, the ideal of judicial-restraint begins to look like abdication of judicial responsibility. Deference to the legal status quo becomes a decision favouring interests positioned to benefit from that status quo. The courts handling corruption cases in Nigeria cannot escape politics: therefore, let them use their political power for wholesome social purposes. Judicial self-restraint is at best a mirage.
I repeat, corruption is a major societal problem in Nigeria. It is immeasurable – injustice, misallocation of resources, economic decay. Corruption affects a staggering number of livelihoods and lives and erodes the faith of Nigerian citizens in their governments and in the “Rule of Law”. Corruption is a threat to Nigeria’s national security.
The term ‘Judicial Activism’ can be a starting point for meaningful conversation in Nigeria about ‘judicial craft’. The Nigerian judiciary through the instrumentality of the court system can play an affirmative role in eradicating the scourge of corruption. Anybody that thinks that Nigeria can progress in the midst of corruption is living in denial. Judicial activism regards the court system as an instrument to achieve the desired social results.
I do not subscribe to judicial self-restraint but I am more skeptical about individual judges’ notions of justice. To Nigerian judges, laws have fixed meanings, and deviation from those meanings is inappropriate, no matter which groups may benefit from the departure. Opponents of the war against corruption are enemies of the Nigerian society. How do you compute the fact of unelected judges versus democratically enacted statutes; results-oriented judging versus principled decision making; strict versus creative use of precedent; democratic supremacy versus human rights; law versus politics; and other equally fundamental dichotomies that exist in Nigeria?
‘Judicial Activism’ made America great by preserving American values. Race, gender-discrimination, separation of church and state, privacy rights and same-sex marriage were issues that divided America and required judicial intervention. Judicial deference to “Rule of Law” ad infinitum in Nigeria will ensure continuity of agreement between treasury-looting and social values. A situation where a Nigerian that steals a yam-tuber, to feed his family of 10, gets jailed 10 years with hard-labour but a politician/public servant/civil servant that loots the state treasury of $2.5 billion, goes scot-free with plea-bargaining, under “Rule of Law”, is anathema to the social value system.
Photo: The Nigerian Supreme Court Courtroom Chambers.
Antagonists of the corruption fight shout about strict “objective” interpretation of the “Rule of Law” but objectivity in law does not exist. Accordingly, there are gaps and uncertainties in the law and the judges must sometimes make choices. Those choices should be geared towards the eradication of corruption in Nigeria.
Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional, though what counts as obviously unconstitutional is itself a matter of some debate. In deciding questions of corruption in Nigerian courts, judicial verdicts must not allow corrupt Nigerians to succeed. Judicially restrained judges have no role to play in the war against corruption. Without sounding like a Buharist, judicial activism is the only panacea to corruption, the “social value system” in Nigeria. Without judicial activism, Nigeria will continue to be a third world country in decades to come.