The big question in the 53 page PDF text (at least the one Intervention got) is the tricky question of what judicial activism brings or takes away from democracy/democratisation as the case may be. It follows from a general observation about the judiciary being drawn into settling questions of political nature and, in that way, being drawn into politics, however defined. They end up deciding those cases either in a manner that takes the wider social context of the issue into consideration, giving a crusading slant to a particular judgement (judicial activism) or they stick to a conservative ‘law is law’ approach. What does it do or what has it done to democracy, based on a survey of the field of play in the United States of America, the United Kingdom and India. It seems the selection criterion is one from North America, one from Europe and one from Asia. Of course, Nigeria is the orbit.
From each of the fields of play have been drawn working conclusions, each presenting its own complexity for the polity. In the US, for instance, both activism and restraint have had their days, historically. As things are now, concern with the political ramifications and consequences of each, said the author, are such that the confirmation process by the U.S. Senate of nominations to fill vacant seats on the court has become opportunity to take more than casual view of their judicial and political philosophies. It is a process that, in the author’s opinion, embedded the Supreme Court in the country’s increasingly divisive and acrimonious ideological and political thicket. The judicial activism in a case annulling prorogation of Parliament in the UK in 2019 offers a more straightforward but no less complicated example because of the power relations involved. But the diversity of the views on just that single example suggests the elephantine complexity of the topic of judicial activism anywhere in the world. The example from India does not help matters.
Of course, the section on Nigeria is where the discussion and even case listing is most comprehensive and it is why this booklet will sell more in party headquarters, Government Houses and the National Assembly than in the departments of Mass Communications, Linguistics, Political Science, Philosophy, Sociology, History, International Relations and the faculties of law in our universities. What can be taken as a preface to the section on Nigeria on page 18 and 19 is what will interest most readers before they get to the “…Overview of Some Landmark Cases”
A careful reader gets the sense that Femi Falana (or was it Olisa Agbakoba?) makes a lot of sense in saying that the judiciary in Nigeria cannot be written off in terms of judicial activism when it comes to adjudicating electoral tussle. Pages 45 – 47 shows that the judges take certain things into consideration in all cases, thereby bringing the puzzle to the question of when is a judicial pronouncement activist? Who will decide that it is activist, given the heterogeneity of interests in every judicial tussle, including that of even a councillor in Nigeria of today?
Marxists stand by the position that the law is an instrument already cornered by the bourgeoisie. So, they won’t be too enthusiastic believing so much in the concept of ‘judicial activism’. Deconstructivists are even farther away, believing as they do that law and violence are one and same thing because of what they call originary violence that inheres in the notion of the law. Radical democratic politics activists (or post-Marxists) do not have a rigid position, believing as they do that every reality can be articulated. But the realm of law is not open to articulatory practice as, before anyone knows, one could be before a judge for contempt of bla! bla!! bla!!! So, the notion of judicial activism seems to share what the late Tunji Braithwaite once called “the Jurisprudence of the crippled oracle”, an item in the exclusive menu of liberal jurisprudence and liberal democracy.
This is why Intervention thinks Prof Adele Jinadu can be said to have killed an elephant as an intellectual hunter. He can neither leave the massive animal in the bush nor can he alone bring home the game. He is compelled to recruit more hands to help him bring home his game. The topic of judicial activism and democratisation is too inviting even as slippery as it looks. A separate and urgent debate on it is called for, followed by a sequel to this booklet. Prof Jinadu has already built a debate into the booklet here and there, beginning with the epigrammatic welcome into the opening section of the text. It sort of warns any reader that the text harbour a strong belief that it is an anomaly when the judiciary has to settle electoral tussles. There is a message about this being something the courts cannot do very well or something that is not very healthy. Did anyone shout aporia?
The section on normative pillars of judicial activism that follows enunciates the basis of that fear in a doctrine of ‘rule of law’ as opposed to the ‘rule of man’ (apologies to gender warriors) that, however, has its “domestic and external economic, political and socio-cultural environment” (p. 3). This segment treats the reader to a condensed narrative of the three contexts it argues to define the judiciary – liberal democratic politics/federalism in Nigeria. These are the progression from regionalism to ethno-regionalism and ethnofederalism under the 1947, 1951 and 1954/960 constitutions; the infusion of some social democratic concessions into the 1979 Constitution and, lastly, the emergence of a culture of politics which, reflecting what Prof Jinadu calls ‘the political economy of booty capitalism in the country’, makes it impossible for any other institutions of government or the human beings running them to pursue/actualise the “fundamental objectives and directive principles of state policy,” (p.7). Another critical junction, especially in the light of the comparative citations from the UK, Kenya and the popular side in Nigeria.
With the grounds prepared, he now serves the section on judicial activism. The booklet is a very sharp cutting into democracy/democratisation today in a compelling manner. That is no mean achievement as democracy still remains the most problematic of the empty signifiers in recent times. It is not just the proliferation of ‘illiberal’ and/or right wing populists, it is also that liberal democracy has exhausted its promise. Theorists of radical democratic politics have simplified how best democracy can deliver but the theorists have done so in such a tedious manner that even established scholars in political theory are not reading the canonical text there. Now, there is a chance that a text from a Nigerian academic elder statesman can insert a novelty that can add value to democracy, especially if subjected to a wider debate.
Aside from this big question, there are too many compelling reasons to attract a reviewer from the radical democratic politics school. One, this text is coming from an intellectual statesman who, at his age, is not only still at his desk but also still in the barricades of advocacy and campaigning. Two, the material is hot off the press. Currency is an issue in this arena. Three, the text is ‘made in Nigeria’, one of the largest democratic laboratories in the world, with incredible innovations, be it in perceived rigging, texting tokens, experimenting with ‘Ghana Must Go’ and a whole lot of them. Fourth, the professor is a student of Fanon and the idea of ‘judicial activism’ tend to bear allegiance to a post-colonial view of democratisation in the scholarship on the subject, at least in Nigeria. Nigeria is such a diverse entity that it is possible a senior academic well-heeled in that specialisation is sitting in one corner of the country, quietly doing his or her own thing. But if that is not the case, then one fallout of the text under review should be the task of finding the resources to train no less than two, young PhD students in post-colonial theory as soon as is practicable. Interpreters are needed. That is where the struggle has shifted now and may remain in the near future because global academia is re-reading what Edward Said, Fanon, Mignolo, Quijano, Wynter and so on have written. There is a sense in which the author and publisher here (Initiative for Research, Innovation and Advocacy in Development and The Electoral Hub) and the MacArthur Foundation which is supporting them are at home with the representation – power – emancipation nexus that post-colonialists subscribe to, given the connection they see between this text and the larger book it is part of on the one hand and the possibility of fair, impartial electoral process in the country. I use representation here in a textual sense rather than elected agency.
- Scripted for Intervention by Adagbo Onoja