An Overview of Judicial Activism And Statutory Interpretation in Nigeria -By Simeon Akala
Recently in Nigeria’s judicial development, the subject of judicial activism has gotten wider attention. The retention of this practice is not far from its manifestation and recognition in other jurisdictions, where it has been used as an object of counterbalance, particularly in furtherance of justice in number of cases brought before the various courts, where it is required to apply principles to facts arising from new situations, in that a new law is therefore created by the Judiciary. This topic has raised plentitude of questions as to the precise constitutional duty of the courts, while it embark in statutory interpretation. Whether the judiciary should be creative, declaratory, or passive in this regard or in exercise of its judicial discretion do otherwise.
Albeit, some writers are for and others against it. While those who vehemently oppose judicial activism rest their arguments on formalism of positivists, i.e the need for the judiciary to stay within the ambit or ascertain the plain meaning of wordings in statues rather than seeking to innovate, superimpose, or supplant legislative intent, thus doing so will allow the judge’s personal bias come to bare, which will be a deviation or perhaps distortion in interpretation thereto, those on the other divide appreciate it to a large extent, in that the judiciary are to make review as when necessary, hence they should posses some form of judicial latitude to depart from the lex lata to interpret the law as it ought to be in certain cases where applicability of meaning of words will occasion or subvert the cause of justice as a result of it ambiguity. The answer of this writer is in respect to the latter, as the judicial system in Nigeria needs adjustment in application of laws vis-à-vis statutory interpretation, therefore should embrace the instrumentality of judicial activism.
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Definition, Historical Perspective & Impact of Judicial Activism
Generally, in jurisprudence terms are not easily defined, this is because definitions often stem from individual idiosyncrasies, perceptions, presumptions, and sometimes contextual usage. The Greek philosopher Aristotle lend his voice to this when he said:
“The notion of law …has defiled any fully satisfactory definition or explanation. Indeed, the problem of definition of word looms large in jurisprudence and traverses the entire terrain of law, thus creating nightmare for lawyers.” [ “The Politics”, Rackham’s Translation Loeb Classical Librans 1932, IV, II].
Furthermore, Black’s law Dictionary, 60th Edition, [Centennial Edition (1891-1991)] defined judicial activism as:
“Judicial philosophy which motives judges to depart from strict adherence to judicial precedent in favour of progressive and new social policies which are not always consistent with the restraint expected of appellate Judges. It is commonly marked by decisions calling for social engineering and occasionally these decisions represent intrusions in the legislative and executive matters.”
The judiciary has the duty to interpret laws, this power is donated by Section 6 of the 1999 Nigerian constitution. In exercise of such duty the courts in Nigeria is to ensure that they interpret the law in such a manner as not to defeat the intention of the Legislators. It is expected that they restrain and confine themselves as passive-onlookers to judicial precedent i.e stare decisis which is the traditional mode of approach to cases brought before it, as it bothers on interpretation of statutes. This is because, it is expressed that the judge duty is to declare the existing law and not make one (Judicis est jus dicere non dare). This principle was echoed by the Supreme Court in the case of Okumagba v. Egbe (1965) 1 All NLR 62 at p. 65. So judges in performance of their judicial functions in constructing statutes, recourse had to be made to the plain meaning of words as against their moral view, as it behooves on them not to fill in the gaps in a legislation rather covey the intention of the legislature. As Allen K.C in his work “Law in the Making” 6th.ed., page 294, posited that:
“By no possible extension of his office can a judge introduce new rules for the compensation of injured employee…The Legislature can project the future a rule of law which has never before existed. The court can do nothing of the kind.” As Mohammed Lawal Garba, being dogmatic and obstinate as usual, had this to say about judicial activism in Stanbic IBTC Holding plc V FRCN: “I am a proponent of judicial activism in interpretation and application of statutes, but my firm belief is that it must be within the confines and limits of the statutes or laws which the court can only expound but not expand or balloon out of their clear and plain context.”
Judicial Activism is traceable to Arthur Schlesinger who is said to have first introduced the term in a January 1947 Fortune Magazine article titled “The Supreme Court 1947.” Similarly, it should be noted that the origin of judicial activism is linked to the power of judicial review asserted by the United States Supreme Court in Marbury v Madison in 1803. The earliest practice of judicial activism is evidently seen in the following cases: Adegbenro v Akintola(1963) All NLR 305, Akintola v Adegbenro (1962) 1 All NLR 442, Williams v Majekodunmi(1963) 2 SCNLR 26,Council of University of Ibadan v Adamolekun(1967) NSCC 210, and Lakanmi v Attorney General of Western Nigeria(1970) NSCC 143.
Furthermore, the naturalists has opined that it is unfair and unjust to impute the plain meaning of words where they are absurd, just as the purpositivists posits in other to improve and promote peaceful coexistence, fairness and equity, the plain meaning of words must be judiciously interpreted to meet its purpose. Thus, when courts exercise judicial discretionary powers, they should do so to bring about the innate or latent meaning of law, stretch it as when necessary and mould same to meet social demands. As Hon. Justice Bhagwati postulated in his paper, “Judicial Interpretation in Constitutional Law” p.3, that:
“Law making is an inherent and inevitable part of the judicial process. Even where a judge is concerned with interpretation of a statute, there is ample scope for him to develop and mould the law. It is he who infuses life blood into the dry skeleton provided by the Legislature and create a living organism appropriate and adequate to meet the needs of the society and thus making and moulding the law he takes part in the works of creation. A judge is not mimic…judges must be in tune with social needs and requirements and he must be above all, a judicial statesman.”
Hon. Justice A. Aboki JCA in his paper captioned: “The Doctrine of Stare Decisis: The need for certainty of Judicial Decisions” had this to say:
“A Judge that is confronted with a legal problem does not have to resign helplessly where the established laws are inadequate in resolving the problem. It is a cardinal maxim of law that where there is a wrong, there must be a remedy – Ubi Jus Ubi Remedium. Judges are, therefore, encouraged to formulate fresh rules of law or to extend the existing ones to deal with novel cases by so doing they add to the corpus of existing laws through their judicial pronouncements”
Conversely, judges when interpreting statutes must be creative, particularly when it concerns the control of State lawlessness. As was evidently seen in Ojukwu v. Lagos State( 1986) All NLR 233.
Similarly, Justice V. R. Krishana Iyer, one of the eminent activist Judge, India has so far seen judicial activism as a device to accomplish the cherished goal of social justice. He said:
“After all, social justice is achieved not by lawlessness process, but legally tuned affirmative action, activist justicing and benign interpretation within the parameters of Corpus Juris”. [In Search of Social Justice, page,8]
In addition, judicial activism play a dominant role when interpreting the constitution and rights of citizens. illustrative of this point is the case of Hollingsworth v. Virginia , a U.S Supreme Court case where the court determined this exact question and interpreted the provisions of Article V of the constitution. Where the U.S Supreme Court held that the President has no formal role in the amendment process of the United States constitution, it went even further holding that while it is permissible a presidential signature is considered unnecessary. In the words of Muntaka-Coomassie J.C.A. in Zekeri v. Alhassan:
“In a democratic society as ours, where the rule of law prevails, the court is the last hope of the common man. It plays an important role in the interpretation of the constitution, protects the rights of citizens from encroachment by any organ of the government and generally has the inherent jurisdiction to determine cases between persons and persons and government.”
Also, Lord Wright in the Australian appeal case of James v. Commonwealth of Australia, it was held that:
“It is true that a Constitution must not be construed in any narrow and pedantic sense.The words used are necessarily general, and their full import and true meaning can often only be appreciated when considered, as the years go on, in relation to the vicissitudes of fact which from time to time emerge. It is not that the meaning of the words changes, but the changing circumstances illustrates and illuminates the full import of that meaning.”
In addendum, Obaseki JSC, in Attorney General Bendel State v Attorney General of the Federation, the apex court said:
“While language of the Constitution does not change, the changing circumstances of progressive society for which it was designed can yield a new and further import to its meaning. Thus, principles upon which the Constitution is designed rather than the direct operation or literal meaning of the words used should measure the purpose and scope of its provisions.”
It is sacrosanct that in Nigeria’s judicial area, room should be given to judicial activism, as it would enhance the development of law in Nigeria, and open new frontiers in our legal jurisprudence. Lord Denning in Packer V. Packer, 80 KB pg. 226 opined as follows, “If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and this will be bad for the law.”
Lastly, Abraham Lincoln has pointed out:
“ Have we not lived enough to know that two men may honestly
differ about a question, but both be rights? In this paradox lies the
secret of judicial process. There are areas where the judges must
be activists and there are areas where they must be passivists.”
Written by Simeon Akala, a final year law student of the Faculty of Law, Ambrose Alli University, Edo State. He enjoys research, writing, and has penchant interest in Public Law.