HUMAN RIGHTS DECISION-MAKING IN EMERGENT COURTS: THE SUPREME COURT OF , 1961-2000

SOLOMON O. UKHUEGBE

A dissertation submitted to the Faculty of Graduate Studies in partial fulfillment of the requirements for the degree of Doctor of Philosophy

Graduate Programme in Law Osgoode Hall Law School York University, North York, Ontario

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••I Canada Human Rights Decision-Making in Emergent Courts: The , 1961- 2000

By Solomon O. Ukhuegbe

a dissertation submitted to the Faculty of Graduate Studies of York University in partial fulfillment of the requirements for the degree of

DOCTOR OF PHILOSOPHY

© 2009

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Soli Deo Gloria).

[iv] I believed I ought to devote a separate chapter to judicial power. Its political importance is so great that it appeared to me that to speak of it in passing would diminish it in the eyes of readers .... [T]he judge is one of the prime political movers.

Alexis de Tocquerville, Democracy in America (Univ. of Chicago ed., 2000) 93 [emphasis added]

Judicial review is not only a function of institutional de­ sign. The choices of courts are crucial for determining how the system of judicial review operates and whether or not it will emerge as an important part of the political order. ...In order to assert that judicial review was playing an impor­ tant role in new democracies, we must identify specific in­ stances of the court constraining current government policy in a politically salient case.

T. Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge University Press, 2003) 104, 252.

[v] Abstract This study evaluates the institutional performance of the Supreme Court of Nigeria based on how it decided constitutional rights cases during the first forty years. Because of a per­ sistent reluctance to sanction the government in important rights cases or strike down official policy, the ability of the Supreme Court to hold political office-holders accountable (accountability performance) is low. At the same time, demand for its human rights jurisdiction is weak. Rights cases never exceeded 5 per cent of the work of the

Court in any year throughout this period, and every important decision was unanimous.

The policy role of the Supreme Court is framed by its limited institutional power or, what is the same thing, institutional support (legitimacy). Institutionalization translates into political power. Because it is weakly institutionalized, the Court is not se­ curely autonomous and lacks sufficient structural integrity to effectively resist external policy preferences. Under such conditions, courts are highly vulnerable to non­ compliance, counterattack and even marginalization by more powerful policy competitors. Courts constantly seek to expand their power, but are naturally risk adverse, generally preferring molecular increments with limited risk. The Supreme Court's customary reticence may therefore function partly as a strategic response to this power asymmetry, and the absence of disagreement between the judges, especially as writing individual opinions is the norm, indicates that it does not pretend to any significant policy role and is quite wary of division depleting its limited political resources. This also shows that the judges' personality and social attitudes are not an important factor in the Court's rights decision-making.

[vi] Institutionalization increases with age. From a longitudinal perspective, there is a progressive institutionalization of the Supreme Court over the period studied. Still not considerable, but decades of institutional stability and growing salience appear to accelerate the expansion of the power, and policy role, of the Court, more so recently.

The characteristic strong formalist-deferential disposition of the Supreme Court is demonstrated by its caselaw. Although primarily resulting from its relative weakness, this disposition is also fostered by an authoritarian political environment and by slender legal resources. Narrow interpretation of legal texts and formalistic problem-solving is the dominant legal culture. Comparative rights jurisprudence and creative constitutional reasoning have had little reception in the Court. These are however a secondary factor in the policy output of the Court. Because, even with growing activism in the eighties and nineties, the Court was still unable to shake off its traditional Formal Style decision­ making. Formalism is not antithetical to activism. The limited use of foreign legal materials is partly a result of strategy reflecting the limited power of the Court.

The weak market for Supreme Court human rights jurisdiction, indicated by the very limited number of rights cases, is explicable partly by demand-side constraints and partly, perhaps crucially, by an important supply-side factor: the Court's reticence and strict access regime. The former in particular has been a significant disincentive to sustained rights litigation. The experience of the Supreme Court of Nigeria shows that the demand factor in the judicialization of politics is not independent of the policy output of courts. Any explanation of the judicialization of politics as primarily a function of demand does not fully account for the experience of the emergent courts.

[vii] TABLE OF CONTENTS

Certification n Dedication iv Abstract vi Tables and Figures xii Table of Authorities Jurisprudence xiii Legislation xxiii International Materials xxxiv Abbreviations xxvi Acknowledgements xli

Introduction 1 1. Understanding the Supreme Court 7 2. The Supreme Court in Comparative Perspective 16 3. Autonomy as the Index of Institutionalization: A Framework for Analysis of Activist Decision-Making Capacity of Courts 22 4. Disaggregating the Supreme Court 30 5. Outline 36

Chapter 1. African Bills of Rights in Institutional Perspective 45 I. Nigeria 48 II. Bills of Rights and Human Rights Decision-Making in Africa 52 A. The Right to a Judicial Remedy in African Bills of Rights 55 B. The Supreme Court and Human Rights 60 III. Do Bills of Rights Matter?: Models of Expansion of Judicial Power 76 A. Formal Criteria of Judicialization 76 B. Demand Model I: Politics of 'Hegemonic Preservation' 78 C. Demand Model II: 'Legal Support Structure' and Judicial Activism 83 IV. Institutional Legitimacy of Courts 87 A. Institutional Legitimacy and Judicial Autonomy . 87 B. Colonialism and the Origins of Authoritarian Socialization of Courts 96

[viii] C. The Erosion of Institutional Legitimacy of African Courts . .104 D. Post Authoritarian Institutionalization of the Supreme Court . .123

Chapter 2. The Nigerian Bill of Rights .130

I. Development of the Bill of Rights . . .135 A. Background: The Minorities Question and Human Rights . .135 B. The Minorities Commission Report . . .139 C. Esau's Hand: The Colonial Office and the Nigerian Bill ofRights . . .143

II. Sources and Normative Content . . .148 A. Art. 1-11 & 14 of the European Convention on Human Rights . . 148 B. Non-European Convention Sources . . .158 1. Freedom of Religious Education (Constitution of Pakistan 1956) . 158 2. Freedom of Movement (Constitution of the 1957) . . .160 3. A Right to Effective Remedy? (The Sudan Self-Government Statute 1953) . . .162 4. Right to Property ... 165 C. Scope ofRights . . .166

Chapter 3. The Supreme Court: Evolvement of its Jurisdiction and Recruitment Policy .174 I. Road to the Supreme Court: Development of Appellate Judiciary in Nigeria . . .177 A. Antecedents of the Modern Court (1): The Colonial Supreme Court ... 178 B. Antecedents of the Modern Court (2): West African Court of Appeal, 1933-1955 . . .182 C. Transition to the Modern Supreme Court . . .184

II. Establishing the Supreme Court . . .185 A. Creating a Blueprint: 1953-1954 Constitutional Conference . . .185 B. Revising the Blueprint: The Court Plan of 1976 . .191

III. Expectation of Seniority: Recruitment and Tenure . . .197 A. Collective Profile of Supreme Court Justices . . .197

[ix] B. Recruitment and the Quest for Judicial Autonomy . . .212 C. Critique of Supreme Court Recruitment . . .221

Chapter 4. Human Rights and the Demand for Supreme Court Decision-Making .241 I. Business of the Supreme Court . . . 244 A. Jurisdiction and Caseload . . . 244 B. Asymmetrical Growth of Human Rights Caseload and Overall Business . . .258 II. Organizational Challenges of Demand: Structural Transformation of the Supreme Court, 1970s-80s . . .273 A. Workload of the Supreme Court . . . 276 B. Enlarging the Court . . .284 C. Intermediate Court of Appeal: Bottleneck or Filter? . . . 297 D. Taking Gate-Keeping Seriously: Agenda Transformation through Discretionary Jurisdiction . . . 300 Excursus: Caseload Crisis and the Paralysis of Discretionary Jurisdiction in the Indian Supreme Court . . . 305 III. Accessing the Supreme Court Agenda: The Court and Legal Mobilization 311 A. Constituencies of the Supreme Court 311 B. HURILAWS' Strategic Impact Litigation Project 315 C. "Victims Only": Privatizing Access to Human Rights Decision-Making 321 D. Beyond Lis Inter Partes 331

Chapter 5. Mapping the Power of the Supreme Court: Interpretive Practice and the Limit of Normative and Institutional Resources 335 I. The Bill of Rights as a Code: The Formal Style in Supreme Court Decision-making . . .339 A. "Austerity of Tabulated Legalism" ... 341 B. A Captive Court: Human Rights and the Common Law . . 349 C. Rights and the Public Interest: The Troubled Transition from Authority to Justification . . .354

[x] II. Behind the Purple Curtain: Institutional Legitimacy and Consensual Decision-Making . . .365 A. Limited Collegiality: The Rise of Individual Opinions . . 365 B. The Dynamics of Consensus Norm: Accounting for Strategic and Non-Formal Dissensus . . . 369 C. Weak Institutional Voice: Panel Decision-Making and the Fragmentation of the Supreme Court . . .376

III. When the Formal Sources Run Out: External Norms in Supreme Court Decision-Making ... 395 A. Judicial Globalization ... 395 B. Making Room for "Soft" Law: International Law and Human Rights Decision-Making . . .398 C. The Application of the European Convention Jurisprudence . . 403

IV. Beyond Scissor-and-Paste Transjudicialism: From 'Retreat into Text' to Mature Adjudication . . . 406 A. Doctrinal Convergence: Information Flow to the Supreme Court . . . 408 B. Judicial Strategy . . .412

Chapter 6. The Performance of the Supreme Court 414 I Accountability Performance 422 II. The Expansion of Institutional Power 429 III. The Future of the Court 441

Postscript. The Court beyond 2000 453

Appendices 1. Sixth Schedule to Nigeria (Constitution) Order in Council, 1954 (Fundamental Rights) . . .454 1A. Ch. 3 Independence Constitution of the Federation of Nigeria 1960 (Fundamental Rights) . . . 462 2. Supreme Court Act [excerpts] . . . 472

Bibliography . . .480

[xi] Tables and Figures

Table 1 Synopsis of Supreme Court Decisions in Fundamental Human Rights Cases, 1960-1966 65 Table 2 Formal Structure of Restrictions on and Derogations from Fundamental Human Rights 172 Table 3.1 Recruitment of Justices of the Supreme Court, 1956-2000 . 204 Table 3.2 Recruitment Pool: Age/ Career Profile of Court of Appeal Justices (ranked by seniority [2000]) 211 Table 3.3 Impact of Recruitment Age on Tenure in the Supreme Court (1987-1991) 237 Table 4.1 Workload of the Supreme Court: Output Analysis, 1956 - 2000 280 Table 4.2.1 Filling Seats on the Supreme Court, 1970-1977 (9-member Bench) 288 Table 4.2.2 Filling Seats on the Supreme Court, 1978-1979 (11-member Bench) 289 Table 4.2.3 Filling Seats on the Supreme Court, 1980-1984 (13-member Bench) ... 290 Table 4.2.4 Filling Seats on the Supreme Court, 1985-2000 (16-member Bench) 291

Figure 3.1 Annual Workload of the Full Court, 1914-1933 181 Figure 3.2 Distribution of Supreme Court Recruitment before 1979 200 Figure 3.3 Distribution of Supreme Court Recruitment since 1979 201 Figure 4.1 Growth of 'Federal Jurisdiction' Business (Cases Decided) . 250 Figure 4.2 Volume of Human Rights Cases Compared with Total Annual Decisional Output 259 Figure 4.3 Actual Compared with Statutory Number of Justices, 1970- 2000 293

[xii] JURISPRUDENCE

A. Nigerian Cases

N.K. Adamolekun v. Council of the University oflbadan [1968] N.M.L.R. 253 . 94

Adegbenro v. Akintola & Aderemi [ 1963] 3 WLR 63 ..191

Adejumo v. Governor of State [1972] 1 ALL NLR 159 94

Adesanya v. [1981] N.S.C.C. 325-327, 367, 375, 445

Amalgamated Press & Fatogun v R [1961] 1 SCNLR 194 . 64, 65, 343, 354

Aoko vFagbemi [1961] 1 All NLR 400 . . .111

Attorney General, Eastern v. Attorney General of the Federation [1964] N.S.C.C. 160 . 92,251,252,254

Attorney General (Eastern Region) v Briggs [1964] 3 N.S.C.C. 242 . . 66

Attorney General ofBendel State v. Attorney General of the Federation [1982]3NCLR1 . . 253,348

Attorney General of the Federation v. Attorney General ofAbia State & ors [2001] 11 NWLR 689 Gurisdiction phase), [2002] 6 NWLR (pt. 764) 542 (merit) •. . 255,256

Attorney General of the Federation v. Attorney General oflmo State & Ors [1982] N.S.C.C. 507 . . 246,253

Attorney General of the Federation v. Guardian Newspapers Ltd

[1999] 9 NWLR 187 ... 94

Attorney General, Imo State v. Attorney General, Rivers State [1983] N.S.C.C 370 253

Attorney General, Ogun State v. Attorney General of the Federation [1982] N.S.C.C. 1 . . .253 Attorney General, Ondo State v. Attorney General of the Federation and ors [1983] 2 SCNLR 269 . . .253

Attorney General v. John Holt (1911) 2N.L.R. 25 . . .181

[xiii] Awolowo v. Sarki, Minister of Internal Affairs [ 1966] N.S.C.C. 209 . 346, 424

Awolowov. Shagari [1979] All NLR120 . . .388

Badejov. Federal Minister ofEducation [1996] 8 NWLR 15 . . .363

Bellov. Attorney General [1986] 5 NWLR S28 . . 324,333

Bucknor-Maclean v. Inlaks Ltd. [1980] 8-11 S.C. 1 . . .376

Cheranciv. Cheranci [ 1960] N.R.N.L.R. 24 . . .360

Davis v Rising (1910) [unreported] . . .98

Director of State Security v. Agbakoba [ 1999] 3 NWLR 314 . 162, 348, 407

DohertyvBalewa[\961] 2 SCNLR256 . 65,92,93,431

D.P.P. v. Obi [1961] 1 SCNLR 197 62, 64, 65, 342, 343, 350, 358, 365,413,424 Eshugbayi Eleko v The Officer Administering the Government of Nigeria 6 N.L.R. 73 (S.C), 8 N.L.R. 1 (P.C.) [first phase]; 1931 AC 662 [second phase] 100- 103 Fajinmi v. Speaker, Western House of Assembly [1962] 1 All NLR 205, [1962] SCNLR 300 ... 110

Fawehinmi v. Abacha [1996] 9 NWLR (Pt. 475) 710 [Ct. of Appeal], aff d [2000] 6 NWLR (Pt. 660) 228 (S.C.) . 367, 368,402

Gamiobav.Esezill [1961] 2 SCNLR 237 . . 247,248

Garbav. University of Maiduguri [1986] 1 NWLR 550 , , .397

Guardian Newspapers Ltd v. Attorney General of the Federation [1995] 5 NWLR 703 . . .434

Head, Federal Military Government v. Military Governor, Mid-Western State cfe a«or. [1973] N.S.C.C. 668 . . .251

Ibadapo v. Lufthansa Airlines [1997] 4 NWLR 124 . . .401

Johnson v. Lawanson [\91\] 1 AH NLR 56 . . .376

[xiv] Kalu v. State [1998] 13 NWLR 531 3, 105, 317, 334, 406, 408, 411, 412

Lakanmi v Attorney General [1970] N.S.C.C. 143, (1971) 1 UILR 201 94, 125, 373, 378, 421, 426, 432, 433,434,441,451

Merchant Bank Ltd v. Federal Ministry of Finance [ 1961 ] 2 SCNLR 256 65, 344-346, 424

Mobil Oil v.Coker [1975] 3 S.C. 175 . . . 376

Motayov. C.O.P. (1950) 13 WACA114 . . 376,387

Nemi v. Attorney General of Lagos State & Comptroller of Prisons

[1996] 6 NWLR (pt. 542)42 . . 272,317

Odeneyev. Savage [1964] N.M.L.R. 115 . . .376

Odi&Ors. v.Osafile& Ors[ 1985] 1 NWLR 17 . . .376

Odunfunadev. Rossek[ 1962] 1 AllNLR98 . . .376

Oduola&Ors. v. Nabhan&Ors. [1981] 5 S.C. 197 . . .376

Ogugu v. The State [ 1994] 9 NWLR (Pt. 366) 1 . . . 105, 111,

268,270,272,317,333,406

Ojeigbe v Ubani [1961] 1 SCNLR 389 . . . 65

Okoro v. The State [ 1998] 13 NWLR 531 . . .317

Olawoyin v Attorney General (Northern Region) [1961] 2 SCNLR 5 65, 322, 325

Olawoyinv Police [1961] 2 SCNLR 278 ... 65

Osawe v. Registrar of Trade Unions [1985] 1 NWLR 755 . 349, 364, 411

Owunmi v. P.Z. [1974] 1 All NLR (pt. 2) 107 ... 376

Queen v Eguabor [1962] 2 N.S.C.C. 186 ... 66

Rv. Thomas Horatius Jackson (\925)6 N.L.R. 49 . . .104

R. v. Wallace Johnson 5 WACA 56, aff d [1940] AC 231 (Privy Council) 63, 342 [xv] Rabiuv. State (1981) 2 NCLR 293 . . .348

Ransome-Kuti & Ors v Attorney General of the Federation

[1985] 2 N.S.C.C. 879 . . 349,353,409

Sadauv. the State [196?,] 1 All NLR124 . . .353

Shell-BP v. Jammal Engineering [197'4] 1 All NLR 543 ... 376

Sofekunv.Akinyemi [1980] N.S.C.C. 175 . . 270,397

State v. Arthur Nwankwo & anor. [1985] 6 NCLR 228 ... 365

Tijani v. The Secretary, Southern Provinces (1918) 3 N.L.R. 34 . . 181

Ubani v. Director of State Security Services [ 1999] 11 NWLR (Pt. 625) 129 . 402

Williams v. Akinwumi [1966] 1 All NLR 115 ... 376

Williams v Majekodunmi [1962] 2 N.S.C.C. 228 . 66

B. Other National Courts

Additional District Magistrate, Jabalpurv. S.S. Shukla

[1976] Supp. S.C.R. 17 (India) ... 89

In reAkoto [1961] Ghana L.R. 523 . . 112-114

A.G., Canada v. Lavell [1974] S.C.R. 1349 . . .332

Nakkuda Ali v. Jayaratne [1951] A.C. 66 . . .345

Ex parte Attorney-General, ': in re Corporal Punishment by Organs of State [ 1991 ] 3 SA 76, [ 1992] L.R.C. (Const) 515 (Nm S) . 119, 120 Attorney General v. Unity Dow [1992] L.R.C. (Const.) 623, [1994] 6 B. Const. LR1, 103 ELM 128 () . . 28, 158

A.G. v. Quebec Association of Protestant School Boards [1984] 2S.C.R.66 ... 261

Azanian Peoples Organization & Ors. v. The President,

[xvi] Republic of South Africa & Ors [1996] 4 SA 671 (CC) . . .400

Bahadur & ors v. Union of India [1971] 3 S.C.R. 9 . . .393

Bandhua Mukti Morcha v. Union of India A.I.R. [1984] S.C. 802 . 329, 385

Boucher v.R [1951] S.C.R. 265 . . .350

Brij Bhushan v. State of A.I.R. 1950 S.C. 129 . . .356

Byrne v. Ireland [1972] I.R. 241 . . .409

Canadian Council of Churches v. Canada (Minister of Employment and Immigration) [1992] 1 S.C.R. 236 327, 330, 331, 333, 410 Capital Punishment case (1994) 1 East Eur. Case Rep. Const. L. 177 (Hungary) . . .411

Catholic Commission for Justice and Peace in Zimbabwe v. Attorney General [1993] 1 Zimb. L. Rep. 242, [1993] 4 SA 239 116, 118, 119, 324, 330

Certification of the amended Text of the Constitution of the Republic of South Africa 1996 [1997] 2 SA 97 (CC.) ... 83

In re Certification of the Constitution of the Republic of South Africa 1996 [1996] 4 SA 744 (CC) . . .83

Chumchua s/o Marwa v. Officer i/c ofMusoma Prison & anor (1988) (unreported) [Tanzania] . . 73, 107

Collins v. Minister of the Interior [1957] 1 SA 552 (A.D.) ... 81

Commercial Farmers Union v. Minister of Lands, Agriculture and Resettlement & Ors [2001] 3 B. Const. LR197 . . .119

Commissioner of Taxes v. C. W. (Pvt) Ltd. [1989] 3 Zimb. L. Rep. 361, [1990] 2 SA 245 . . .117

Conjwayo v. Minister of Justice and the Director of Prisons [1991] 1 Zimb. L. Rep. 105, [1992] 2 SA 56 ... 116

Cooper v. Union of India [1970] 3 S.C.R. 530 . . .393

Dhakeswari Cotton Mills v. Commissioner of Income Tax, West Bengal

[xvii] A.I.R. 1955 S.C. 65 . . .310

D.P.P. v. Pete [1991] L.R.C. (Const) 553 [Tanzania] . . .111

Edwards v. Attorney-General for Canada [1930] A.C. 124 . . . 340

Elloy de Freitas v. Permanent Secretary of Ministry of Agriculture

[1999] 1 A.C. 69 at 80 (Privy Council) . . .360

Ephrahim v. Pastory & anor [1990] L.R.C. (Const.) 757 [Tanzania] . .111

Fertilizer Corporation Kamgar Union v. Union of India 1981 A.I.R. (S.C.) 344 328

Finlay v. Canada (Minister of Finance) [1986] 2 S.C.R. 607 .. . 327

Fox v. Queen [2002] 2 AC 284 ... 269

Galliev. Lee [1971] AC 1004 . . .367

Gupta v. President of India A.I.R. 1982 (S.C.) 149 . . 328,329

Harris v. Minister of the Interior [1952] 2 S.A. 428 (A.D.) . . .81

Hector v. Attorney-General of Antigua and Barbuda [1990] 2 A.C. 312 [1991] L.R.C. (Const.) 237 (Privy Council) . . .362 Hewlett v. Minister of Finance [1981] 1 Zimb. L. Rep. 571, [1982] 1 SA 490 (ZS) . . .166

Hunter v. Southam Inc. [1984] 2 S.C.R. 145 . . 261,341

HyandZel'sine. v. Ontario [1993] 3 S.C.R. 675 . . .331

Jaundoo v. Attorney General of Guyana [1971] AC 972 (Privy Council) . Ill

Kamau Kuria v. Attorney General (1989) 15 Nairobi Law Monthly 33 . 110, 111

Kesavananda Bharti v. State of Kerala A.I.R. 1973 (S.C.) 1461 . 218, 393, 394

Kurumav.R. [1955] AC 197 (Privy Council) . . .353

Law Society of Upper Canada v. Skapinker [1984] 1 S.C.R. 357 . . 261

Law Society of Zimbabwe v. Minister of Finance [2000] 2 B. Const. LR 226 117, 330

[xviii] Malone v. Metropolitan Police Commissioner (No. 2) [1979] 2 WLR 700 . 156

Maina Mbacha v. Attorney General (1989) 17 Nairobi Law Monthly 38 . . 110

Minister of Home Affairs v. Austin [1986] 1 Zimb. L. Rep. 240, [1986] 4 SA 281 . . .117

Minister of Home Affairs v. Bickle [1983] 2 Zimb. L. Rep. 400,

[1990] 2 SA 245 . . .117

Minister of Home Affairs v. Fisher [1980] AC 319 . . 341,342

Minister of 'the Interior v. Harris [1952] 4SA 769 (A.D.) . . .81

Minister of Justice of Canada v. JJo/wsfa'[1981] 2 S.C.R. 575 . . 327,328

In re Mlambo [1991] 2 Zimb. L. Rep. 339 (SC), [1992] 4 SA 144 (ZS) . . 165

Mkontwana v. Mandela Metropolitan Municipality [2005] 2 B. Const. LR

150, [2005] 1 SA 530 (CC) ... 270

Mortgentaler v. R. [1975] 1 S.C.R. 616 . . 331,332

Mulundika & ors v. People [1995-1997] Zambia L.R. 20 (Zambia S.C.) . . 360

In re Munhumeso [1994] 1 Zimb. L. Rep. 49, [1995] 1 SA 551 . . .117

Namunfepo & ors v. Commanding Officer, Windhoek Prison

[2000] 6 B. Const. LR 671 (Nm S) ... 120

Newfoundland Continental Shelf Reference [1982] 1 S.C.R. 86 . . . 332

New Patriotic Party v. Inspector-General of Police

[1993-94] 2 Ghana L.R. 459 . . .113

Anarita Njeru v. Republic (No. 2) [1979] Kenya LR 102 . . .59

Re Human Rights Commission (Northern Ireland) [2002]UKHL25 ... 334 Nova Scotia Board of Censors v. McNeil [1976] 2 S.C.R. 265 . . .327 Nyambirai v. National Social Security Authority [1996] 1 L.R.C. 64 . . 360

[xix] People's Union for Democratic Rights v. Union of India A.I.R. 1982 (S.C.) 1493 . . 329,385

In re Presidential Reference A.I.R. 1999 (S.C.) 1 . . .220

Pumbunv. Attorney General [1993] 3 L.R.C. 317 (Tanzania Ct. ofAppl) . . 360

R. v. Aldred (1909) 22 Cox C.C. . . .342

R. v. Big MDrug Mart Ltd [1985] 1 S.C.R. 295 . . .359

R. v. Hughes [2002] 2 AC 259 (Privy Council) ... 269

R. v. Oakes [1986] 1 S.C.R. 103 233, 359, 360, 361, 364

R. v. Metropolitan Police Commissioner, ex parte Parker [1953] 1 W.L.R. 1150 . 346

R v. Secretary of State, ex parte Adan [2001] 2 WLR 143,

[2001] 1 All ER 593 . . .405

Rv. Wigglesworth [\9S7] 2 S.C.R. 541 . . .397

Raila Odinga v. Attorney General (Misc. Civil Appl. #104 of 1986) [Kenya] . Ill

Rattigan & Ors v. Chief Immigration Officer & Ors. [1994] 2 Zimb. L.

Rep. 54 (Z.S.), [1995] 2 SA 182 (Z.S.), [1995] 1 B. Const. LR 1 (Z.S.) . 28, 118

Reference re Ownership of Off-shore Mineral Rights (1967) 65 D.L.R. (2d) 353 255

Retrofit (Pvt) Ltd. v. Posts &Telecomm. Corp [1995] 9 B. Const. LR 1262 117, 360

Reyes v. Queen [2002] 2 AC 235 (Privy Council) . . .269

Robertson andRosetanni v. R. [1963] S.C.R. 651 . . .332

Romesh Thapper v. State of Madras A.I.R. 1950 S.C. 124, [1950] SCR 594 356, 357

Runyowa v. The Queen [1967] AC 26, [1966] 1 All ER 633,

[1966] 2 WLR 877 (Privy Council) . . 354

Salem v. Chief Immigration Officer [ 1995] 4 SA 280, [ 1995] 1 B. Const. LR 78 . 118

Shell Oil Co. v. Commissioner of Patents [1982[xx] ] 2 S.C.R. 536 (Canada) . . 224 Singhv. State of Bihar A.l.R. 1962 S.C. 955, [1962] SCR Supl. (2)769 . . 358

Smith v. Attorney General of Ontario [1924] S.C.R. 331 . . .327

The State v. A Juvenile [1989] 2 Zimb. L. Rep. 61, [1990] 4 SA 151, [1989]

L.R.C. (Const) 774 . . .116

The State v. Makwanyane & Anor [1995] 3 SA 391 (CC) . 229, 360, 396, 412

The State v. Ncube [1987] 2 Zimb. L. Rep. 246, [1988] 2 SA 702, [1988] L.R.C. (Const) 442 . . 116,118 Supreme Court Advocates-on-Record Association v. Union of India A.I.R. 1994 (S.C.) 268 . . 220,221

Terrell v Secretary of State for the Colonies [1953] 2 Q.B. 482 ... 98

Thorsonv. Attorney General ofCanada [1975] 1 S.C.R. 138 . . . 327

Uthukela District Municipality & ors v. President of Republic of South Africa CCT 7/02 (decided 12 June 2002) . . .254 United Parties v. Minister of Justice, Legal and Parliamentary Affairs [1998] 2 B. Const. LR 224 . . .330

Wilson Estate v. Canada (1996) 25 B.C.L.R. (3d) 181 (BC S.C.) . . .324

In re Wood [1994] 2 Zimb. L. Rep. 155, [1995] 1 B. Const. LR 43 (Z.S.) . . 330

Wood v. Minister of Justice, Legal & Parliamentary Affairs [1995] 1 SA 703 116, 359

Zundelv.R. [1992] 2 S.C.R. 731 . . .362

[xxi] C. International Jurisprudence

Campbell and Fells v. United Kingdom (1984) 7 E.U.R.R. 165 . . .397

Dudgeon v. United Kingdom (1981) 4 E.H.R.R. 149 . . .156

Engel and Ors v. The Netherlands (1976) 1 E.H.R.R. 647 . . .397

Feldbrugge v. The Netherlands (1986) 8 E.H.H.R. 425 . . 326, 344

Handyside v. United Kingdom (1976) 1 E.H.R.R. 737 . . 167, 168

Kadubecv. Slovakia (1998) 23 E.H.R.R. 553 . . .397

Lawless v. Ireland (1961)1 E.H.R.R. 15 . . .151

McCann, Farrell and Savage v. United Kingdom (1995) 21 E.H.R.R. 97 . . 169

Media Rights Agenda & Constitutional Rights Project v. Nigeria

(2000) 7IHRR 265 . . .360

Pudasv. Sweden (\987) 10 E.H.R.R. 380 . . .344

Soeringv. United Kingdom (1989) 11 E.H.R.R. 439 . . .404 Sunday Times v. United Kingdom (1979-80) 2 E.H.R.R. 245 . . .360

[xxii] LEGISLATION

A. Nigerian Materials

1. CONSTITUTIONS Nigeria (Constitution) Order in Council, S.I. 1652 of 1960 [Independence Constitution] . 51,61,229 S. 17 148, 169 S. 17(2) . 168 S. 17(3) 170 S. 18(2) 170 S. 19 151 S.20 151 S. 20(l)(d) 172 S. 20(1) (e) 172 S. 21 152 S. 21(1) 154 S. 21(3) 172 S.21(5)(c) 346 S. 21(6) 153 S. 22 155,168 S. 24 61, 168 S.25 . 168 S.26 160,168 S.27 . 157 S. 31 51,56, 164 S. 31(1) 322 S. 81(1 l)(a) . 199 S. 104 190,205 S. 105(1) . 213 S. 105(3) . 199 S. 107 . 189 S. 108 . 190 S. 109 . 245 S. 110 . 190 S. 113(4) 378, 379 S. 114 . 191 S.114(l)(c) . 298 S. 120 . 212 S. 231(3) 199

Nigeria (Constitution) (Amendment No. 3) Order in Council, L.N.228ofl959

[xxiii] S. 69 Schedule Para. 1 Para. 1(2) Para. 1(3) Para. 2 Para. 3 Para. 4 Para. 4(1 )(e) Para. 4(10)(d) Para. 5 Para. 5(1) Para. 5(3)(a) Para. 5(6) Para. 6 Para. 6(2) Para. 7 Para. 7(4) Para. 8 Para. 9 Para. 10 Para. 11 Nigeria (Constitution) Order in Council, S.I. 114 of 1954 S. 13 S. 138 S. 144 S. 245(2) & (3) Nigeria (Constitution) Order in Council, No. 1172 of 1951

Constitution (Amendment) (No. 2) Decree No.42 of 1976

Constitution of Eastern Nigeria, 1963 S. 54 Constitution of the Federal Republic of Nigeria, 1999 S. 1 S. 12(1) S. 36(1) S. 42 S. 44(3) S. 46 S. 46(1) S. 162

[xxiv] S. 230(2) . 276 S.231 . 214 S. 232(1) . 283 S. 233(2)(a) 218,246 S. 233(2)(b) . 246 S. 233(2)(c) . 246 S. 233(2)(d) . 246 S. 233(2)(e) . 246 S. 233(2)(f) . 246 S.234 379, 389 S. 294(2) . 366 Third Schedule Para. 12 . 214 Para. 20 . 213 Constitution of the Federal Republic of Nigeria, 1989 51,390 S. 233(2) . 390

Constitution of the Federal Republic of Nigeria, 1979. 51,162, 196,269,323,355 S. 6(6)(b) . 325 S. 12(1) . 190 S.31(l)(a) . 271 S. 33(1) . 326 S.42 . 269 S. 42(1) 322,323 S. 42(4) . 153 S.211 . 213 S.214 379, 389 S. 231(2) . 389 S. 258(2) . 366

Constitution of the Federal Republic of Nigeria Act No. 20 of 1963 [Republican Constitution] 51 S. 22(1) 155,311 S. Ill . 286 S. 117(2)-(4) . 195 S. 120 191 S. 121(4) 378, 379, 388 Constitution of Mid-Western Nigeria 1964 S. 52 . 191 Constitution of Northern Nigeria 1963 S. 56 . 191

[xxv] Constitution of Western Nigeria 1963 Ss. 52 & 53

Draft Constitution of the Federal Republic of Nigeria, 1995

2. STATUTES & REGULATIONS

African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act, Cap 10 (1990)

Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act 2004

Chief Justice of Nigeria (Extension of Service) Decree, No. 2 of 1971

Commissions and Tribunals of Enquiry Act S. 3(1) S.3(4) Constitution (Suspension and Modification) Decree, No. 1 of 1966

Constitutional Referendum Act, No. 4 of 1962

Court of Appeal Edict, No. 15 of 1967 [Western State of Nigeria] Criminal Code, Cap. 77 (1990) S.51(l)(b) S.51(l)(c) S. 59(1) Ss. 271-273 Ss. 277-282

Deposed Chiefs Removal Ordinance, Cap. 78 (1923)

Emergency Powers (Jurisdiction) Act 1962

Federal Military Government (Supremacy and Enforcement of Powers) Decree, No. 28 of 1970

Federal Court of Appeal Decree, No. 43 of 1976

Federal Justices (Increase) Order, L.N. 112 of 1960

[xxvi] Federal Supreme Court Act, No. 12 of 1960 . 188, 189, 285, 379

Forfeiture of Assets etc. (Validation) Decree No. 45 of 1968 . . .94

Immigration Ordinance, Cap. 84 Laws of the Federation of Nigeria and Lagos 1958 . . .346

Justices of the Supreme Court Act, No. 4 of 1964 . . . 286

Legal Aid (Amendment) Decree, No. 22 of 1994 . . .263

Legal Aid Act, Cap. 205(1990) ... 263

Nigeria Independence Act 1960 8 & 9 Eliz. 2, c. 65 (U.K.) ... 50

Protectorate Courts Ordinance, No. 45 of 1933 . . .97

Protectorate Courts Proclamation, No. 4 of 1900 (Northern Nigeria) . .178

Provincial Courts Ordinance, No. 7 of 1914 . . .180

Public Officers and Other Persons (Investigation of Assets) Edict,

No. 5 of 1967 ... 94

Supreme Court Act, Cap. 424(1990) . . 285,379

The Supreme Court (Amendment) Decree, No. 10 of 1984 . . . 286

The Supreme Court (Amendment) Decree, No. 41 of 1979 . . . 286

Supreme Court (Amendment) Decree, No. 72 of 1977 . . . 286

Supreme Court Ordinance, No. 23 of 1943 . . 179, 180

Supreme Court (Amendment) Ordinance 1933 . . .179

Supreme Court Ordinance, No. 6 of 1914 . . 178-180

Supreme Court Ordinance of 1876, No. 4 1876 . . 174, 182

Supreme Court Ordinance, No. 11 of 1863 . . .174

Supreme Court Proclamation, No. 6 of 1900 (Southern Nigeria) . . .178

[xxvii] Torts Law, Cap. 122 Laws of Oyo State of Nigeria 1978 ... 324

West Africa Court of Appeal Ordinance, No. 47 of 1933 . . .183

B. Non-Nigerian Materials

1. CONSTITUTIONS Antigua and Barbuda Constitution Order, No. 1106 of 1981 . . . 131

Australian Constitution Act Ss. 51,92, 116, 117 ... 46

Belize Constitution, No. 14 of 1981 . . .131 S.20 . . .269

British North America Act 1867 (Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5 Ss. 93, 133 ... 46

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act I982 (U.K.), 1982, c. 11 . . 261 S. 1 . 167, 170, 359, 364 S. 8 ... 156 S.24 . 323,324,327 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 S. 52 . . 261,326 Constitution (Consequential Provisions) Act (8 & 9 Eliz. 2, c. 41 (Ghana) . . 112

Constitution of Barbados (sch. to the Barbados Independence Order, No. 1455 of 1966) . . .131

Constitution of Botswana . . .58 S.18 ... 58 Constitution of Botswana of 30 September 1966 . . 47,130

Constitution of the Cameroon, 1996 Art. 46 . . 19,56 Constitution of Republic of the Congo (Brazzaville) of 8 December 1963 . . 47

Constitution of Dahomey [now the Republic of Benin] of 11 January 1964 . . 47

[xxviii] Commonwealth of Dominica Constitution Order, No. 1027 of 1978 131

Constitution of Ethiopia of 4 November 1955 45

Constitution of the Federation of Malaya, 1957 . 160 Art. 9 160-162 of 21 February 1961 47

Constitution of Ghana, 1992 47 S. 33 58 of 1 July 1960 46,112 S. 13 . 112 Constitution of the Gambia, 1996 47 S.28 58

Constitution of Gambia of 24 April 1970 47, 130

Constitution of Guyana Act 1980 . 131

Constitution of Republic of Guinea of 10 Nov. 1958 47

Constitution of India, 1949 Art. 14 . 158 Arts. 15 & 16 . 158 Art. 19 171,358 Art. 30 . 160 Art. 32 57, 88, 164, 165, 306 Art. 124(1) . 294 Art. 132 . 307 Art. 133 307, 309 Art. 136 306, 307 Art. 143 95,384 Art. 145 . 390

Constitution (Forty-Fifth Amendment) Act, 1977 . 391 Constitution (Forty-Second Amendment) Act, 1976 . 391 Constitution (First Amendment) Act, 1951 . 357

Constitution of Kenya 1969 (Act 5 of 1969) 47, 130 S.64 59 S. 84 58 of 12 December 1963 47

[xxix] S. 20(1) Constitution of Kenya (Amendment) Act, No. 17 of 1990 Constitution of Kenya (Amendment) Act, No. 4 of 1988

Constitution of Lesotho, 1993 S. 22 , 1966

Constitution of Liberia of 26 July 1847

Constitution of Malawi of 16 May 1994 S. 46(2)(a) S. 46(2)(b) of 6 July 1964

Constitution of Mauritius S. 17

Constitution of Mauritius of 12 March 1968

Constitution of Namibia, 1990 Art. 25(2) Art. 131 Constitution of Pakistan, 1956 S. 13 of 3 March 1963

Constitution of Seychelles, 1993 . Art. 46 Art. 129 Constitution of Sierra Leone, 1991 S.28

Constitution of Sierra Leone of 19 April 1971

Constitution of Sierra Leone of 27 April 1961 S. 18(1) S.28 of 1 July 1960

Constitution of Cmnd. 1400

[xxx] Constitution of the Republic of South Africa, Act 108 of 1996 S.38 S.41 S. 174

Constitution of South Africa, Act 200 of 1993 S.71 S.99 Sch.4 Constitution of South Africa 1961

Constitution of St. Lucia S. 16 Constitution of Swaziland of 6 Sept., 1968

Constitution of Tanganyika of 9 December 1962

Constitution of Togo of 5 May 1963 , 1995 Art. 50(1) & (2) Constitution of Uganda of 2 October 1962 S.23(l) S. 137 , 1991 S.28(l) Constitution of Zambia of 24 October 1964

Constitution of Zimbabwe, 1979 S. 16(1) S.24 Amendment (No. 14) Act, 1996 Constitution of Zimbabwe Amendment (No. 13) Act, 1993 Constitution of Zimbabwe Amendment (No. 11) Act, 1990 Constitution of Zimbabwe Amendment (No. 7) Act, 1987 Constitution of Zimbabwe Amendment (No. 6) Act, 1987

Ghana (Constitution) Order in Council, S.I. 277 of 1957

Grenada Constitution Order, No. 2155 of 1973

[xxxi] Interim of 11 July 1965 46 S. 30(3) 58 Jamaica (Constitution) Order in Council 1962 . 131

Transitional Constitution of the Sudan of 19 December 1955 (U.K.) 45, 56, 145, 162 Art. 10 163, 164 South Africa Act (1909), 9 Edw. 7, c.9 (U.K.) Ss. 136 & 137 46,81 South Africa Act Amendment Act, 1958 81 South Africa Act Amendment Act, No. 9 of 1956 81

St. Christopher [Kitts] and Nevis Constitution Order, No. 881 of 1983 131 S. 18 269 St. Vincent Constitutional Order, No. 916 of 1979 131

2. STATUTES & REGULATIONS

Area Commissioners Act, 1962 (Tanzania) 107

Basic Rights and Duties Enforcement Act, No 33 of 1994 (Tanzania) 58

Collective Punishment Ordinance, 1921 (Tanzania) 107

Colonial Courts of Admiralty Act 1890, 53 & 54 Vict., c. 27 (U.K.) 189

Colonial Laws Validity Act 1865, 28 & 29 Vict., c. 63 (U.K.) 45

Corporal Punishment Ordinance, 1930 (Tanzania) 107

Deportation Ordinance, 1921 (Tanzania) 107

Economic and Organized Crime Control Act, 1984 (Tanzania) 107

Emergency Powers Act, 1986 (Tanzania) 107

Expulsion of Undesirables Ordinance, 1930 (Tanzania) 107

Government of India Act 1935 26 Geo. V, c. 2 (U.K.) 88

Government Proceedings Act, 1967 (Tanzania) 107

[xxxii] Human Resources Deployment Act, 1983 (Tanzania) . 107

Law and Order (Maintenance) Act 1960 (Zimbabwe) 107,117

Legal Aid Services Act, 1998, S.O. 1998, c. 26 . 264

Maintenance of Public Safety Act 1949 (Madras) . 356

Public Safety Act, 1949 (East Punjab) . 356

Preventive Detention Act, 1962 (Tanzania) . 107

Preventive Detention Act (No. 17 of 1958) (Ghana) . 112

Regions and Regional Commissioners Act, 1962 (Tanzania) . 107

Registration and Identification of Persons Act, 1986 (Tanzania) . 107

Resettlement of Offenders Act, 1969 (Tanzania) . 107

Separate Representation of Voters Act 1951 (South Africa) 81

Societies Ordinance, 1954 (Tanzania) . 107

Stock Theft Ordinance, 1960 (Tanzania) . 107

Supreme Court Act, R.S.C. 1985, c. S-26 (Canada) S. 6 . . 215 S. 25 . 390 Ss. 53 & 54 . 95 The Supreme Court (Number of Judges) Act, No. 45 of 1956 (India) S.2 295 The Supreme Court (Number of Judges) Amendment Act, No.48 of 1977 (India) S.2 ... 295 The Supreme Court (Number of Judges) Amendment Act, No. 17 of 1960 (India) S.2 ... 295 Townships (Removal of Undesirable Persons) Ordinance, 1954 (Tanzania) 107

Witchcraft Ordinance, 1928 (Tanzania) 107

[xxxiii] INTERNATIONAL MATERIALS

African Charter on Human and Peoples' Rights OA.U. Doc. CAB/LEG/67/3 Rev. 5, 21 ELM 58 11,133,401,402 Art. 5 271

Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), reprinted in (1989) 28 ILM 1448 . 43

European Convention for the Protection of Human and Fundamental Freedoms 213 U.N.T.S. 221, E.T.S. 5, U.K.T.S. 71 (1953) 132, 140, 168, 169,322,355,403-406 Art. 2 . 148 Art. 3 . 150 Art. 4 . 151 Art. 5 . 151 Arts. 6 & 7 152,153 Art. 6(1) 326,344 Art. 8 155 156, 168, 171 Art. 9 156 158, 160, 168 Art. 10 157 168, 342, 343 Art. 11 . 157 Art. 11(2) . 168 Art. 12 . 140 Art. 13 140, 163 Art. 14 157, 158 Art. 15 . 406 Protocol I, art. 1 . 165

Freedom of Association and Protection of the Right to Organise Convention (ILO No. 87), 68 U.N.T.S. 17 . . .43

International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, reprinted in (1967) 6 ILM 368 . . 43,355

International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, reprinted in (1967) 6 ILM 360 . . .43

Right to Organise and Collective Bargaining Convention (ILO No. 98), 96 U.N.T.S. 257 . .43

[xxxiv] Statute of the International Court of Justice, 59 Stat. 1031, 39Am.J. Int'lL. Sup 215 (1945) . . .393

Universal Declaration of Human Rights, UNGA Res. 217A (III), 10 Dec. 1948 Art. 12 ... 156

[xxxv] Abbreviations

A.B.F. Res. J. American Bar Foundation Research Journal AC Appeal Cases A.D. South African Reports, Appellate Division [Supreme Court of South Africa] Afr. Affairs African Affairs Afr. J. Int'l & Comp. L. African Journal of International and Comparative Law Afr. Hum. Rts. L.J. African Human Rights Law Journal Afr. Studies Rev. African Studies Review A.I.R. All India Reporter All NLR All Nigeria Law Report Alta. L. Rev. Alberta Law Review Am. J. Comp. L. American Journal of Comparative Law Am. J. Int'l L. Sup Supplement to the American Journal of International Law Am. J. Pol. Sci. American Journal of Political Science Am. Pol. Res. American Political Research Am. Pol. Sci. Rev. American Political Science Review ASICL Proc. Proceedings of the African Society of International and Comparative Law Banaras L.J. Banaras Law Journal (Banaras Hindu University, Varanasi, Uttar Pradesh) B.C.L.R. (3d) British Columbia Law Reports (Third Series) B. Const. LR Butterworths Constitutional Law Reports [Southern Africa] BYU L. Rev. Buffalo University Law Review Cal. W. Int'l L.J. California Western International Law Journal Calif. L.R. California Law Review Cambridge L.J. Cambridge Law Journal Can. Bar Rev. The Canadian Bar Review Can. J. L. & Jurisprudence Canadian Journal of Law and Jurisprudence Can. J. Law & Soc'y Canadian Journal of Law and Society Can. J. Pol. Sci Canadian Journal of Political Science Can. Pub. Pol'y Canadian Public Policy Case W. Res. J. Int'l. L. Case Western Reserve Journal of International Law CC Constitutional Court [of South Africa] CILSA Comparative and International Law Journal of Southern Africa CJF (CJN) of the Federation (Nigeria) Cmd., Cmnd. Command Paper [British Parliament] Colum. L. Rev. Columbia Law Review

[xxxvi] Comm. L. Bull. Commonwealth Law Bulletin Comp. Pol. Studies Comparative Political Studies Conn. J. Int'l L. Connecticut Journal of International Law Cornell Int'l L.J. Cornell International Law Journal Cornell L.Q. Cornell Law Quarterly Crim. L.Q. The Criminal Law Quarterly Dal. L.J. Dalhousie Law Journal D.L.R. Dominion Law Reports E.A. East Africa Law Reports East Afr. L.J East African Law Journal East Eur. Case Rep. Const. L. East European Case Reporter of Constitutional Law Eastern Afr. LR Eastern Africa Law Review E.H.R.R. European Human Rights Reports E.T.S. European Treaty Series Eur. H.R.L. Rev. European Human Rights Law Review Eur. J.I.L. European Journal of International Law Fordham L. Rev. Fordham Law Review F. Supp. Federal Supplement Geo. Wash. Int'l L. Rev. The George Washington International Law Review Ghana L.R. Ghana Law Reports Harv. L. Rev. Harvard Law Review Hum. Rts. L.J. Human Rights Law Journal Hum. Rts. L. Rev. Human Rights Law Review Hum. Rts. Q. Human Rights Quarterly IHRR International Human Rights Reports Ind. Int'l & Comp. L. Rev. Indiana International and Comparative Law Review Ind. L.J. Indiana Law Journal Int'l Affairs International Affairs Int'l Comm. Jur. Rev. International Commission of Jurists Review (Journal of the International Commission of Jurists) Int'l Comm. Jur. International Commission of Jurists Int'l & Comp. L.Q. International and Comparative Law Quarterly Int'l J. International Journal Int'l J. Const. L. International Journal of Constitutional Law Int'l J. Soc. Law International Journal of Sociology of Law Int'l Lawyer International Lawyer ILM International Legal Materials Israel L.R. Israel Law Review J. Afr. Hist. Journal of African History J. Afr. L. Journal of African Law J. Comm. & Comp. Pol. Journal of Commonwealth and Comparative Politics J. Const. & Pari. Studies Journal of Constitutional and Parliamentary Studies J. Contemp. L. Journal of Contemporary Law

[xxxvii] J. Hist. Soc. Nigeria Journal of the Historical Society of Nigeria J. Hum. Ecol. Journal of Human Ecology J.I.L.I. Journal of the Indian Law Institute J. Lat. Amer. Studies Journal of Latin American Studies J. L. & Econ. The Journal of Law & Economics J. Leg. Stud. Journal of Legal Studies J. Mod. Afr. Studies Journal of Modern African Studies J. Politics The Journal of Politics J. Pub. L. Journal of Public Law J. S. Afr. Studies Journal of South African Studies JSC Justice, Supreme Court [of Nigeria] K.C.L.J. The King's College Law Journal Kenya LR Kenya Law Report Juridical Rev. (N.S.) Juridical Review (New Series) La. L. Rev. Louisiana Law Review Law & Contemp. Probs. Law and Contemporary Problems Law Library J. Law Library Journal Law & Soc. Inquiry Law and Social Inquiry Law & Soc'y Rev. Law & Society Review L.L.R. Lagos Law Reports L.N. Legal Notice Loy. L.A. Int'l & Comp. L.J. Loyola of Los Angeles International and Comparative Law Journal Loy. L. Rev. Loyola Law Review (New Orleans) L.R.C. Law Reports of the Commonwealth Melb. U. L. Rev Melbourne University Law Review Mich. J. Int'l L. Michigan Journal of International Law Midwest J. Pol. Sci. Midwest Journal of Political Science Mod. L. Rev. Modern Law Review Nat. L. For. Natural Law Forum Nat. Res. For. Natural Resources Forum Nat. J. Const. L. National Journal of Constitutional Law NCLR Nigerian Constitutional Law Reports Neb. L. Rev. Nebraska Law Review Netherlands Int'l L. Rev Netherlands International Law Review Neth. Q. Hum. Rts. Netherlands Quarterly on Human Rights New Eng. J. on Crim. & Civ. New England Journal on Criminal and Civil Confinement Confinement Nigerian L.J. Nigerian Law Journal N.L.R. Nigeria Law Reports N.M.L.R. Nigeria Monthly Law Reports NmS Notre Dame L. Rev. Notre Dame Law Review

[xxxviii] N.R.N.L.R. Northern Region of Nigeria Law Reports N.S.C.C. Nigerian Supreme Court Cases NWLR Nigerian Weekly Law Report Nw. U. L. Rev. Northwestern University Law Review Ohio St. LJ. Ohio State Law Journal Osgoode Hall L.J. Osgoode Hall Law Journal Ottawa L. Rev. Ottawa Law Review Oxford J. Legal Stud. Oxford Journal of Legal Studies Pol. Analysis Political Analysis Pol. Behavior Political Behavior Pol. Research Q Political Research Quarterly Pol. Sci. Q. Political Science Quarterly Pub. L. Public Law Q.B. Law Reports: Queen Bench Queen's L.J. Queen's Law Journal Res. L. & Econ. Research in Law and Economics R.S.C Royal Statutes of Canada Rev. Int'l Droit Penal Revue Internationale de Droit Penal SA South African Law Reports SALJ South Africa Law Journal S. Afr. Y.B. Int'l L. South African Yearbook of International Law S. Afr. J. Hum. Rts South African Journal on Human Rights SA Pub. L. South African Public Law S. Cal. L. Rev. Southern California Law Review S.C. Supreme Court S.C.C. Supreme Court Cases [India] SCNLR Supreme Court of Nigeria Law Report S.C.R. Supreme Court Reports [Canada/ India] S.I. Statutory Instrument Soc. & Leg. Stud. Social & Legal Studies Social Sci. Q Social Science Quarterly Stan. J. Int'l L Stanford Journal of International Law St. Louis U. L.J. Saint Louis University Law Journal Stat. United States Statutes at Large Stud. L. Pol. & Soc'y Studies in Law, Politics, and Society Supreme Court L.R. Supreme Court Law Review Syracuse L. Rev. Syracuse Law Review Tex. L. Rev. Texas Law Review Third World L.S. Third World Legal Studies U. Ark. Little Rock Law University of Arkansas at Little Rock Law Review Review U.B.C. L. Rev. University of British Columbia Law Review

[xxxix] U. Benin L. J. University of Benin [Nigeria] Law Journal U. Chi. L. Rev. University of Chicago Law Review UCLA L. Rev. UCLA Law Review U. Ghana L.J. University of Ghana Law Journal UILR University of Ife Law Reports [Nigeria] U.K.T.S. United Kingdom Treaty Series U. Miami Int.-Am. L. Rev. The University of Miami Inter-American Law Review U. New Brunswick LJ University of New Brunswick Law Journal UNGA United Nations General Assembly U.N.T.S. United Nations Treaty Series U. Pa. J. Const. L. University of Pennsylvania Journal of Constitutional Law U. Pa. L. Rev. University of Pennsylvania Law Review U. Richmond L. Rev. University of Richmond Law Review U.T.L.J. Law Journal U. Toronto Fac. L. Rev. University of Toronto Faculty of Law Review Va. J. Int'l L. Virginia Journal of International Law Va. L. Rev. Virginia Law Review Vand. L. Rev. Vanderbilt Law Review Va. J. Int. Virginia Journal of International Law WACA West African Court of Appeal Reports Wash. U.J.L. & Pol'y Washington University Journal of Law and Policy Western Pol. Q. The Western Political Quarterly Wm. & Mary Bill Rts. William and Mary Bill of Rights Journal Wis. L.R. Wisconsin Law Review Wis. Women's LJ Wisconsin Women's Law Journal WLR The Weekly Law Reports Yale LJ. Yale Law Journal Zambia L.J. Zambia Law Journal Zambia L.R. Zambia Law Reports Zimb. L. Rep. Zimbabwe Law Reports Zimb. L. Rev. Zimbabwe Law Review Z.S. Supreme Court of Zimbabwe

[xl] Acknowledgement

This work had a long gestation. For this, if nothing else, I am indebted to far more persons that I can acknowledge on one page. My supervisor, Professor Jamie Cameron, and other members of my thesis committee, Professors Ian Greene and Obiora Chinedu

Okafor deserve my special gratitude. I am grateful also to the Osgoode Hall Law School for offering me the opportunity to enrol in the graduate programme with a generous

Harley Hallet Scholarship and additional financial support. The Law Library staff constantly provided friendly and highly professional support. I have to acknowledge in particular Judy Ginsburg, sometime acting Librarian, and the staff of the Interlibrary

Loans department, who spared no effort to get me hard-to-find materials.

My friends and colleagues in Nigeria were equally supportive. The University of

Benin enabled me to accept the offer to study at Osgoode by granting me an extended study leave. Charles Edosonmwan, S.A.N., Richard Idubor, Favour Irabor, and Lilian

Ajayi crucially assisted with retrieving Nigerian materials and much more.

Finally, it is my family that I owe the greatest debt. Ayin's support was unwavering and if anything, grew as the years went by; and our children's understanding was simply exemplary. My brother-in-law, Professor Abi Aghayere always provided wise counsel and encouragement. My brothers were equally supportive. My dear mom and my beloved Uncle Edosa, regrettably, did not live to see this work completed. To God

Almighty, I owe everything.

...for in much wisdom is much vexation. Eccl. 1: 18

[xli] INTRODUCTION

[The] idea embodied in the constitutional arrangements of independent African countries...that the courts should stand as "sentinels of freedom"...was an idea doomed to failure. It was not destined to failure (as is frequently assumed) because of denials of formal judicial independence, or because African politicians have perverted the judicial process. Rather, it was doomed because of the structure of appellate courts as institutions in the African milieu.*

hy is Africa missing in the contemporary discourse of judicialization, Wnotwithstanding the prevalence on the continent of judicialized bills of rights regimes? Why is the African input in the world's judiciaries' "brisk international traffic

in ideas about human rights"1 apparently anything but considerable?2 African representation even in the most extensive cross-national surveys is typically disappointing. Yet, when over forty years ago Nigeria adopted a constitutional bill of rights, there were barely three or so antecedents throughout the Commonwealth; and it was indeed a point of departure in the constitutionalization of bills of rights.4 In spite of

* R.B. Seidman, "Judicial Review and Fundamental Freedoms in Anglophonic Independent Africa" (1974) 35 Ohio St. L.J. 820 at 849; reprinted in R.B. Seidman, The State, Law and Development (London: Croom Helm, 1978) 364 at 374. 1 See M.A. Glendon, Rights Talk The Impoverishment of Political Discourse (: Free Press, 1991) at 158. 2 This may of course be partly because the African contribution may to some extent be undervalued, and kept out of the mainstream, as a result of the existing framework of transjudicial communication. Upendra Baxi has noted, "justices of the North are not so cosmopolitan; they do not regard the South as capable of providing exemplarship in constitutional interpretation." See U. Baxi, "The Avatars of Indian Activism: Explorations in the Geographies of [Injustice" in S.K. Verman & Kusum, eds., Fifty Years of the : Its Grasp and Reach (New Delhi: Oxford University Press, 2000) 156 at 168 [hereinafter Baxi, "Avatars of Indian Activism"]. Although it is a question that literally flies from these pages, the problem is not explored in the present study. Our immediate concern are the causes of the marginalization of the judiciary in the African political system and specifically, the consequences for human rights decision-making. 3 See, e.g., C.N. Tate & T. Vallinder, eds., The Global Expansion of Judicial Power (New York: New York University Press, 1995) [only two African countries are included]. 4 This is largely neglected. For example, "Comparative constitutional law takes as its starting point and key subject matter the astonishing growth of constitutionalism that has taken place around the world in the last sixty years. Within the discipline, the central narrative of this growth focuses on two periods and this, however, in Nigeria, like almost everywhere else in sub-Saharan Africa, the

judiciary has never been prominent in political life.

The Supreme Court of Nigeria is an emergent court, even though it is also the

appellate court with the earliest experience in bill of rights adjudication in Africa. By

1961, when it first heard appeals under the fundamental human rights provisions of the

Nigerian Constitution, bills of rights were unknown almost everywhere else in Africa.

After a half century, although no longer necessarily a young institution, the salience of

the Court to its mass publics is still low. For much of its history, the Supreme Court has

been characterized by remarkably low visibility. Even today, it is very exceptional to

have the Court mentioned at all in literature on Nigerian government and politics. Lately,

however, its public profile has increased considerably. Indeed, a leading Nigerian daily

proclaimed the Court "Man of the Year" of 2002,6 reflecting growing satisfaction with

policy outputs of the Court. Whether this expanding specific support for the Court means

a significant increase of diffuse support, or legitimacy, remains to be closely investigated.

This study does not explore this question. However, whatever the actual level of diffuse

support is, there is at least credible anecdotal evidence of a contemporary increase, albeit

limited, in the salience of the Court with its mass and attentive publics.

sets of developments: the creation of domestic charters of fundamental rights and their enforcement through the adoption of judicial review of legislation in many Western European countries and Japan following World War U, and the constitution-making and creation of constitutional courts that has taken place in central and eastern Europe since 1989." Africa is skipped! See S. Gardbaum, "The New Commonwealth Model of Constitutionalism" (2001) 49 Am. J. Comp. L. 707. Gardbaum himself claims that the power of judges to strike down legislation infringing the Canadian Charter of Rights and Freedoms is "a new departure ... for the English-speaking Commonwealth countries as a whole"! See Ibid, at 723. 5 The Shorter Oxford English Dictionary defines "emergent," inter alia, as "•becoming noticed; coming into being; (of a nation) newly formed or independent" [emphasis added]. 6 See R. Abati & K. Osadolor, "The Supreme Court: Brave Men, Great Institution" The Guardian (1 January 2003) Al.

2 The Court's record of almost unqualified reticence in human rights policy-making has on the whole significantly discounted the constitutional protection of rights. One example suffices here. In 1998, the Court was presented with a long-delayed opportunity to review the constitutionality of the death penalty in Nigeria. Although a sentence of death creates an automatic right of appeal, it took four decades after the introduction of the bill of rights before the Court was finally able to consider this question. The Human

Rights Law Services (HURJLAWS), who provided legal services, had for many years been eager to get the Court to rule on the status of the death penalty in the light of the constitutional prohibition of "inhuman or degrading treatment." (Almost five years earlier, a similar constitutional challenge with respect to long-term death row prisoners was denied on jurisdictional grounds.) This present case, an appeal against a (mandatory) sentence of death for murder, took nearly fourteen years to wind through the Court of

Appeal to the Supreme Court. It was an all-important test case, without any merit except for the constitutional issue, which was raised for the first time at the Supreme Court.

In the event, any expectation that the Court could be persuaded to initiate policy change was misplaced. A global "consensus of judicial opinion," in the language of counsel, on the cruelty of the death penalty did not seem to matter at all. The Court would not even be drawn into the policy debate. As it held, "The well researched brief and the forceful arguments of counsel cannot propel this Court to usurp the function of the legislature. The court cannot abolish the death penalty in this country even if there is a consensus for its abolition. To do so, [as] canvassed, will amount to judicial legislation."7

7 Onuoha Kalu v. State [1998] 13 NWLR 531 at 631 (per Ogwuegbu JSC).

3 In general, the following problematic properties have characterized human rights decision-making in the Supreme Court of Nigeria during the period studied:

1. There exists a considerable reluctance to intervene in public policy making.

Although a justiciable bill of rights is presumably an extraordinary empowerment

of the judiciary, the Supreme Court has been very marginally involved in

development of human rights policy in Nigeria. Opinions of the Court rarely

involve extensive consideration of policy implications of particular provisions of

the bill of rights. Rather, short shrift is routinely made of arguments that

ordinarily should invite extensive examination of policy, or else they are met with

a simple disclaimer, as we saw in the case above, that policy making is not a

function of the Court. The result is that neither the bill of rights nor the Court

itself has been a significant factor in public policy making.

2. Human rights decision-making in the Supreme Court on the whole significantly

discounts the constitutional protection. There is a strong Formal Style legalistic

decision-making tradition. There is as yet no culture of justification. Rather, there

is a tendency of generous reading of the claw-back and limitation clauses of the

bill of rights.

3. There is increasing policy divergence in human rights decision-making between

the Nigerian Supreme Court and the major domestic judicial institutions

elsewhere in the world and international human rights institutions as well. This

trend appears contrary to the general expectation of progressive policy

convergence through the globalization of rights discourse and increased

4 prominence of transnational judicial dialogue on constitutional rights. As the

death penalty case above shows, the tendency is to treat as irrelevant foreign

caselaw supporting a major policy intervention.

4. Despite its scepticism of foreign precedents, the Supreme Court's own precedents

in human rights decision-making are comparatively small. This is because the

experience of the Court has been limited by a substantial undermobilzation of the

bill of rights. Human rights cases have rarely exceeded five per cent of the

business of the Court in any year. As a result, even after forty years, several

clauses of the bill of rights await a definitive ruling by the Court.

What informs Supreme Court human rights decision-making, and why is the

Court apparently alienated from the currents of transnational judicial dialogue? Is there a correlation between the Court's institutional capacity and its human rights decision­ making? And is its characteristic reticence a factor in the undermobilization of the bill of rights? These issues have rarely been critically addressed. It remains largely true today what David Grove observed four decades ago: rights discourse in the context of judicial

Q application of the Nigerian constitutional bill of rights has attracted very little attention.

This study is an institutional analysis of Supreme Court human rights decision­ making. It explores the institutional context of decision-making, and argues that it is an independent variable in the way the Justices perform their work. This context is partly external to the Court - the political environment in which it operates. This study does not assume that personal attributes may not influence an individual Justice's perception of his

5 role. On the contrary, we suppose such factors may without doubt be quite relevant in

accounting for exceptional behaviour, why particular judges sometimes engage in activist

intervention in human rights policy while the majority on the same court, or legal system, does not. Judicial role expectations — beliefs about how a judge should behave — are affected by a number of institutional as well as personal factors. Where the actual behaviour of role occupants (judges) — role orientation — does not square with role expectations, as is sometimes the case, a personal attribute, such as self-esteem (or the lack of it), may make the critical difference. Thus, out-of-character activism, which is not unknown in Nigeria, as indeed elsewhere in Africa, may perhaps be because judges high in self-esteem tend to be less likely influenced by extant conformist role expectations.9

See D.L. Grove, "The 'Sentinels' of Liberty? The Nigerian Judiciary and Fundamental Rights" (1963) 7 J. Afr. L. 152 ("It appears little thought is being given in Nigeria to the manner in which the courts do, or should, treat fundamental rights cases."). 9 See J.L. Gibson, "Personality and Elite Behavior: The Influence of Self-Esteem on Judicial Decision Making" (1981) 43 J. Politics 104. A similar point, stated differently, is made by Peter Russell. See P.H. Russell, "Towards a General Theory of Judicial Independence" in P.H. Russell & D. O'Brien, eds., Judicial Independence in the Age of Democracy: Critical Perspectives from Around the World (Charlottesville: University of Virginia Press, 2001) 1 at 6-7. A practical application could be whether this explains, for example, the remarkable judicial activism of former chief justice Hayfron-Benjatnin of Botswana vis-a-vis that country's Court of Appeal. See A.J.G.M. Sanders, "Constitutionalism in Botswana: A Valiant Attempt at Judicial Activism" (1983) XVI CILSA 350, (1984) XVII CILSA 39. Another example is the exemplary rights activism of Justice James Mwalusanya (Tanzania , 1984-1997), on whom, see I.G. Shivji, "Contradictory Developments in the Teaching and Practice of Human Rights Law in Tanzania" (1991) 35 J. Afr. L. 116, at 121-26. It has indeed been said of Africa that "for the first thirty years after independence, a judge's training and jurisprudential skill usually mattered less than sheer bravery. ...[T]he heroes of the era were often not the continent's greatest legal minds but the judges who had an extra dose of personal courage and organizational savvy." See J.A. Widner, Building the Rule of Law (New York: W.W. Norton & Co., 2001) at 56 [hereinafter Widner, Rule of Law']. In contrast, when we consider the institutional character of judges, the critical question is, as put it, "to what extent does the judicial system, of which he or she is...part, absorb him or her, and how much freedom does he or she have, to remain or become an individual per se?" See B. Laskin, "The Institutional Character of the Judge" (1972) 7 Israel L.R. 329.

6 1. Understanding the Supreme Court

Very little has been written on the Supreme Court of Nigeria as an institution or organization,951 and no systematic account has hitherto been provided of the bill of rights aspect of its business. The central concern of this study is to evaluate, and speculate on, the capacity of the Supreme Court of Nigeria for activist decision-making as a measure of the extent and growth of its institutional power, by analyzing its output in human rights cases. (We shall clarify the term "activist" shortly.) It does not follow necessarily from activist output alone that a court is powerful, unless there is routine compliance with its decisions. The expectation, or possibility, of compliance directly affects the behaviour of courts. Where compliance is not assured, courts are inclined to conserve rather than risk their political resources. We therefore hypothesize that the capacity of a court to constantly oppose the preferences of the political authorities is directly related to, and primarily dependent on, the Court's institutional legitimacy: the moral (or political) capital acquired by a court that enables it to make unpopular decisions "safely" or to override policy competitors (e.g. the legislature or executive). The term more specifically denotes the quantum of this moral capital as well as the capacity of a court to convert it into acceptance of, or acquiescence in, its outputs by the public or the government, even when they are dissatisfied with them.10 Approached differently, a court's political capital is indicated by the scope of the policy-making space acquired by it vis-a-vis its policy

9a It is this everyday usage of organizations as institutions that the latter term is employed in this study. No notice is taken here of the conceptual distinction in modern institutional theory between institutions and organizations. 10 See J.L. Gibson, G.A. Caldeira & V.A. Baird, "On the Legitimacy of National High Courts" (1998) 92 Am. Pol. Sci. Rev. 343; J.L. Gibson & G.A. Caldeira, "Defenders of Democracy? Legitimacy, Popular Acceptance, and the South African Constitutional Court" (2003) 65 J. Politics 1.

7 competitors. This space where a court may operate relatively unconstrained is a function

of what Tom Ginsburg calls the institutional tolerance zone(s) between the political

organs and the court.11 Throughout this study, we use "institutional legitimacy" and

"institutionalization" mostly interchangeably, although, strictly, the latter is a process

through which institutions acquire legitimacy.

Paraphrasing David Easton,lla in the environment of African courts as decision­

making systems the extant authoritarian political order creates a major stress on the

system, constraining it and minimizing the policy space of courts. At the same time, the

support input (institutional support), required to shore up the system against stress, is still

generally weak, although growing, and is almost entirely stimulated by satisfaction with

courts' output (specific support). The greater a court's institutional legitimacy, the greater

the political cost for government or the legislature of non-compliance with its decisions.

Hence, the problem of non-compliance is usually pronounced with emergent or weakly

institutionalized courts and, conversely, minimized with highly institutionalized courts.

All courts, however, experience varying degrees of strategic constraint resulting from the

policy preferences of other political actors. Because highly institutionalized courts are

usually active, routinely obeyed and politically salient, they are able to support active judicialization of politics, or what Ginsburg calls "high equilibrium" judicial review.

Poorly institutionalized courts, on the other hand, generally avoid challenging politically

T. Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge: Cambridge University Press, 2003) at 68 [hereafter Ginsburg, Constitutional Courts]. lla D. Easton, A System Analysis of Political Life (New York: Wiley, 1965) c. 10.

8 powerful actors because of the risks of non-compliance, counterattack, and marginalization.1Ib

With the emergence of authoritarian governance in the post-independence era,

African courts in general suffered moderate to severe erosion of their institutional legitimacy. This aggravated the extant authoritarian socialization of the judiciary - a colonial legacy of a pervasive culture of "executive-mindedness." The Supreme Court of

Nigeria is no exception. Lacking a sufficient store of political capital, the Court is acutely sensitive to the policy preferences of the government, and its decision-making is therefore characterized by a close reading of textual sources. Use of sources external to, or transcendent of, the constitutional text or other formal legal sources is highly exceptional. We characterize this attitude or practice Formal Style decision-making, or formalism for short. (In the literature, it is also called legalistic or mechanical decision­ making.) The Court's reticent and minimalist human rights decision-making is primarily a strategic reaction to the constraint of external policy preferences. However, judicial strategy alone does not provide a complete explanation. Another important factor is the marginal influence of the legal academy and academic opinion on the Supreme Court.

Cross-citations to foreign courts are predominantly drawn from British courts, and are rarely extensive or truly dialogic. The Court has not been particularly attentive to ideas and solutions cast about by the winds of transjudicial communication. This is a result of an inadequate understanding of the significance of external norms and "soft" law. In any case, there is very limited such information. There is a general lack of awareness of much

llb Ginsburg, Constitutional Courts, supra note 11 at 74.

9 of what is "out there." In short, the decision-making resources of the Court are thin. In addition, it has practically no control over its docket, which is overwhelmed with routine work. This situation naturally disposes the Court to the correction of errors, rather than to policy making. The largely routine business of the Supreme Court reinforces its institutional orientation to formalistic decision-making.

Many features of Supreme Court decision-making are directly accounted for, wholly or partly, by the stress on the system from an authoritarian political environment and the court's limited institutional support or legitimacy. The Court's record of very low dissensus, for example, supports the conventional wisdom that where institutional legitimacy is weak, courts are more likely to be strongly oriented to consensual decision­ making. Frequent division between the Justices is likely to deplete the scarce moral capital of the Court. Moreover, it sits as panels of five or, less frequently, seven. As these decision-making groups are much smaller than the full court, they would presumably be even less disposed to activism than would the plenary court. The small group is less secure institutionally than the whole. Therefore, the Supreme Court's reticence in human rights cases is, at least, partly accounted for by the institutional properties of the court.

This study examines human rights decision-making in the Supreme Court of

Nigeria during the period 1961-2000. Nigeria's constitutional Bill of Rights was adopted in 1959. The first decision of the Court on any of its provisions was almost two years later, in April 1961. The cut off date (2000) is convenient as it is the fortieth year of

Supreme Court decision-making with respect to the bill of rights. We have limited our

10 inquiry to decisions in cases, criminal or civil, involving Bill of Rights-founded

challenges to the validity of some official action, policy, legislation or regulation. We

have thus excluded cases of horizontal application of the Bill of Rights (such as testing

the validity of a rule of customary family law or property law). We have also excluded a

number of decisions where the bill of rights was only tangentially relevant. These mainly

involve title to land, and have more to do with the interpretation of applicable statute(s).

Bill of rights cases, as indicated, constitute a fraction of the caseload of the Court

during the period, although precise caseload figures are unknown. The Court does not

publish its caseload data. However, Kasunmu reported data obtained from the registry on

the volume and distribution of appeals filed and disposed of from 1956 to 1970.13 Since

this included appeals that were subsequently abandoned, the figures are probably not as

reliable as a complete inventory of cases decided by the Court published as volume 1 of

the Digest of Supreme Court Cases (civil and criminal appeals decided between 1956 and

1984). There is currently no official report of the Court's decisions.14 Of the many extant

As a result of its domestication in Nigeria, the African Charter on Human and Peoples' Rights (O.A.U. Doc. CAB/LEG/67/3 Rev. 5, reprinted in 21 ILM 58) is an independent basis of human rights litigation. It is domesticated as Cap 10 Laws of the Federation of Nigeria 1990. In practice, legal challenges are founded jointly or concurrently on the African Charter and the constitutional bill of rights. 13 A.B. Kasunmu, "The Supreme Court of Nigeria: An Examination of its Composition and Functions" in A.B. Kasunmu, ed., The Supreme Court of Nigeria, 1956 - 1970 (Ibadan: Heinemann, 1977) at 1-52 [hereinafter, Kasunmu, "The Supreme Court of Nigeria"]. 14 Until the series ran out in 1960, a Federal Supreme Court report was published annually under the editorship of the Chief Registrar and a Justice of the Court. This was superseded by an official national reporter, the All Nigeria Law Report, under a National Committee on Law Reporting, which reported mainly, though not exclusively, Supreme Court cases. Neither of these sources, however, comprehensively reported the Court's decisions. Even with the addition of a few private general reporters a majority of the decisions of the Court, including some of the most important ones, went completely unreported. It is believed that over 60 per cent of the Court's decisions went unreported from 1956 to 1972. By January 1972 the Chief Justice re-established a reporter under the authority of the Court, which was issued until 1986. As a result of this, for the first time in the history of the Court, all decisions were now available outside the Court's archives. But it was the publication since 1985 of the Nigerian Weekly Law Report that ensured that these decisions became promptly available.

11 private reporters, the Nigerian Weekly Law Report (NWLR) (since 1985) is the oldest and the most reputable. Throughout this study we have cited it for all decisions since 1985.

We have found it unnecessary in the circumstances to include parallel citations. For pre-

1985 decisions, we have mostly cited the Supreme Court of Nigeria Law Report

(SCNLR) or, where a particular case is not available there, the Nigerian Supreme Court

Cases (NSCC).15 Usually, parallel citations are not provided.

During well over half of the period covered by this study, Nigeria was under various military dictatorships (1966-79 and 1984-99). Although these authoritarian regimes in theory overrode the Constitution, the fundamental human rights provisions, almost without exception, were neither repealed nor suspended. Also, the regular courts were neither suspended nor abolished. As the figures reported in Chapter 4 (Figure 4.2) show, the era of the dictatorships does not appear to have been any different from other years so far as the human rights caseload of the Supreme Court is concerned. From the general trend during 1961-2000 two almost inescapable impressions of human rights decision-making are firstly, the near invisibility of human rights on the agenda of the

Supreme Court and secondly, a general tendency for cases to be decided in favour of official action or policy.

1 Two major private initiatives were undertaken in the 1980s to publish with the co-operation of the Court a complete set of decisions since 1956. One of these projects (the Nigerian Supreme Court Cases) was published in 1988. Unfortunately, it still managed to miss out a few cases. The other undertaking was a two-pronged project to publish, first, a complete digest of the cases followed by a complete report. The Digest of Supreme Court Cases (10 vols.) (Lagos: Nigerian Law Publications, 1984) was published in 1984, but only fourteen volumes, covering ten years (1956-63, 1983-84), of the Supreme Court of Nigeria Law Report (SCNLR) were published before the project was apparently abandoned. Nonetheless, together, the Digest and the SCNLR constitute the most complete source of information on Supreme Court cases during the first thirty years.

12 The institutional power of the Supreme Court of Nigeria as a national policy

maker has not previously been systematically examined. Indeed, there are only two

published, extended studies of the institutional aspects of decision-making in the

Supreme Court of Nigeria. Kasunmu's pioneering, and still largely unsurpassed, study

appeared only in 1977.16 The study analyzed the recruitment of justices, caseload and

case flow management in the Court during the first decade and half. This and other

papers that appeared in the same volume report poor institutional performance during the

period. But no serious attempt was made to establish a demonstrable correlation between

the institutional character of the Court and its decision-making. Rather, it is vaguely

indicated by Kasunmu that there was the need to re-examine the judicial role, perhaps as

indicated by the Court's decision-making, in the light of the "political structure" of the

country.17 The apparent justification is a simple unexplained remark that the decisions of

the Court in the area of public law should be seen in the light of the fact that it is

"recognized that judicial decisions are often conditioned by the political climate within

[a] country at any given period."

Twenty-five years later, building partly on Kasunmu's survey of the Court, a

political system analysis of its decision-making regime was provided by Mojeed Alabi.19

A system comprises inputs (demands), conversion process (decision-making mechanism),

16 See Kasunmu, "The Supreme Court of Nigeria" supra note 13. 17 Ibid, at 51. 18 Ibid, at xix. But he immediately however conceded that most of the decisions involving restrictive interpretation of the fundamental human rights provisions occurred during times of comparative peace and tranquility. 19 M.O.A. Alabi, The Supreme Court in the Nigerian Political System, 1963-1997 (Ibadan: Demyaxs Press, 2002). The methodology builds on David Easton's classic description of system analysis. See D. Easton, A Framework for Political Analysis (Englewood-Cliffs, N.J.: Prentice-Hall, 1965) and A Systems Analysis, supra note 11a.

13 and outputs. The outputs generate new demands, which are fed back as inputs into the

system. Under this framework, a political or judicial system is distinguishable from its

environment although it affects and is influenced as well by the latter. Alabi approaches

the Supreme Court in the context of the impact of the judiciary as an organ of the

political system. He supports the view that the impact of the Court is directly related to

inputs. Basically, although the judicial system has regime rules (justiciability, standing,

etc.) that perform the gate-keeping function of screening inputs for judicial conversion,

and hence determine output, it is in fact the nature of the demand that determines the

extent of the Court's role. But the primary factor in decision-making is the policy

environment of the Court. The basic assumption justifying this claim is that the behaviour

of individual judges, and indeed the entire judicial system, is conditioned by the political

system. It follows, he claims, that the "positivist orientations and apolitical attitude" of

the Supreme Court, and the reason why it has been "largely indifferent to issues of human

rights," are mainly because of the unfavourable environment of legislative absolutism

under military dictatorships in Nigeria. To be relevant in the twenty-first century, the

Supreme Court must, in his view, take a more activist position, in line with "a worldwide

drive towards higher level of judicial activism."

The potential usefulness of systems analysis in studying African judiciaries was

indicated at least as early as the 1970s. Professor Robert Seidman had suggested an

analysis of African appellate courts as decision-making systems. He argued that the

20 See R.B. Seidman, "Judicial Review and Fundamental Freedoms in Anglophonic Independent Africa" (1974) 35 Ohio St. LJ. 820, reprinted in R.B. Seidman, The State, Law and Development (London: Croom Helm, 1978)364.

14 inputs, conversion process, and feedback system of these courts structure judicial choice and therefore determine how judges go about deciding cases. The significance of

Seidman's analysis is its recognition of institutional inputs in decision-making, including institutional norms (e.g. how issues are selected for determination or what information is admissible) and the socialization of judges. As a result, there may be neither a strong demand nor indeed an adequate capacity on the part of the court to openly address unresolved policy issues. In the Supreme Court of Nigeria, for instance, inputs in the form of issues that may be submitted for adjudication are restricted or controlled by the decision-making system - through a requirement of strict standing (private right) and the exclusion of non-parties, such as rights advocacy or interest groups, who are usually more effective in casting the issue(s) more broadly and in informing the Court of policy choices. Because of this, the issue to be adjudicated is likely to be presented merely as the allocation of burdens/ benefits between the immediate parties rather than a determination of public policy. The way a particular issue is decided by the Court is therefore a product of a number of inputs and the manner the issues are processed. Both factors are institutionally determined by the decision-making system.

Seidman's work is not mentioned in Alabi's analysis of the Supreme Court.

Nonetheless, a major inadequacy of the latter, like Seidman, is that he does not explain specifically how the Court is constrained by its political environment or indeed how the

Court responds to such constraints and no account is taken of institutional support as inputs in the Court's decision-making. Alabi is therefore forced to resort to "conventional judicial analysis" (case analysis) to supplement the systems analysis theoretical

15 framework. Contrary to the strong linkage he claims exists between non-activist decision­ making in the Supreme Court and the political environment of military dictatorships specifically, our view is that political constraint in Supreme Court decision-making is better understood in the context of the Court's institutional legitimacy. As we shall show in Chapter 1, the Supreme Court was not an activist court even before the military dictatorship. Indeed, the earliest flashes of activism occurred in the initial years of the military government, a development which indicates a court, at that point, willing to expand or maximize its institutional power vis-a-vis the military dictatorship, a clearly strategic behaviour in the context of a transitional regime.

Apart from being fragmentary and largely speculative (no thorough demonstration with the performance of an African court was attempted), Seidman's analysis cannot explain why appellate courts with a similar formal structure may show widely varying capacities for intervention in public policy. Why, for example, has the Supreme Court of

India been more active in policy matters even though as a decision-making system, it is not unlike the Supreme Court of Nigeria? Finally, the decision-making system of itself is only a partial picture. It is equally necessary to investigate as well the possible implications for a decision-making system of ineffective judicial institutionalization in

Africa.

2. The Supreme Court in Comparative Perspective

The Supreme Court of Nigeria is a prototypal Commonwealth mixed-jurisdiction final court of appeal. This study undertakes a functional comparison of Supreme Court of

Nigeria with African final courts of appeal generally, on the one hand, and on the other, a

16 structural comparison with three leading activist final appellate courts in the

Commonwealth today - the , the Supreme Court of India, and the South African Constitutional Court respectively. The institutional performance of courts may validly be compared on the basis of judicial organization and decision-making using structural concepts such as independence, impartiality, and scope and depth of

9 1 decision-making. Comparison may provide a basis for evaluating, for example, human and material resources available to different courts and how the distribution of these resources constrains the scope and depth of human rights decision-making.

The neglect of cross-national studies of the African judiciary is notorious,22 despite a relatively similar experience from one country to another. Although the present study is primarily concerned with the Supreme Court of Nigeria, the decision-making phenomenon it describes holds equally true, more or less, of most of sub-Saharan Africa.

Perhaps because courts have been weak in the protection of human rights and formal bills of rights regimes have hardly affected public policy, scholars of human rights in Africa generally regard neither judicial institutions nor bills of rights as meriting close inquiry.

The result is a significant gap in our understanding of these institutions. Readers of

Rhoda Howard's study of human rights in Commonwealth Africa,23 for example, may be forgiven if they manage to remain unaware that a largely homogeneous neo-Nigerian bill of rights belt traverses the region.

21 See C.N. Tate, "Courts and Crisis Regimes: A Theory Sketch with Asian Case Studies" (1993) 46 Pol. Research Q. 311 at 313-14. 22 See K.A. Mingst, "Judicial Systems of Sub-Saharan Africa: An Analysis of Neglect" (1988) 31 Afr. Studies Rev. 135. 23 See R.E. Howard, Human Rights in Commonwealth Africa (Totowa, N.J.: Rowman & Littlefield, 1986) See also Howard, "The Dilemma of Human Rights in Sub-Saharan Africa" (1980) 35 Int'l J. 724.

17 Information about African judiciaries is very poor. Judicial opinions are more

often than not either unreported or obscurely reported. Even the few that are reported or

digested are not readily available outside the jurisdiction in question. Two decades ago,

Karen Mingst indicated that even a limited research comparing more than two or three

African countries was probably impossible to undertake, since the descriptive

foundations did not exist. However, there have emerged in recent years a number of

important investigations of bill of rights decision-making, especially, in east and southern

Africa. A pattern similar to Nigeria's appears well established in the countries

investigated: that is, a meagre human rights caseload and an overwhelming

preponderance of decisions in favour of official policy. There is a severe

undermobilization of bills of rights. In Kenya, for example, the bill of rights is not only

significantly undermobilized, human rights claims rarely succeed in court. Kenyan

researchers claim that no record exists of even a single case that was successfully

litigated under the country's first constitutional bill of rights. Indeed, that country's

experience is a particularly instructive illustration of the extraordinary reluctance of judges to intervene in public policy making in Africa. Although sometimes highly

informative, most extant African case studies have not rigorously pursued institutional

explanations.

We hypothesize that, like Nigeria, the judicial role in formal bills of rights

regimes has been marginal almost everywhere in Africa primarily because of low

24 See Mingst, supra note 22 at 144. 25 See, e.g., Widner, supra note 9; P.J. Kabudi, Human Rights Jurisprudence in East Africa: A Comparative Study of Fundamental Rights and Freedoms of the Individual in Tanzania, Kenya and Uganda (Baden-Baden: Nomos Verlagsgesellschaft, 1995).

18 institutional legitimacy, especially ineffective institutionalization of the judiciary as a

public policy making agency. This study seeks to provide a framework for a comparative

evaluation of the institutional performance of final appellate courts in Africa in human

rights decision-making. Although a number of previous studies26 have sought explanation

of the reticence of the post-colonial African judiciary in the colonial experience, our

study builds that explanation into a larger framework of institutional legitimacy. It is

important, however, to carefully define the relevance of the Nigerian experience to the

larger African context. "Africa" for this purpose, is primarily common law Africa.27 (The

Nigerian experience is particularly relevant to this region). Occasionally, however, the

context traverses the so-called sub-Saharan Africa28 that is, the entire continent less the

five countries of North Africa - Algeria, Egypt, Libya, Morocco, and Tunisia. The sub-

These studies are reviewed by Mingst, supra note 22 at 139-41 and in Chapter 1 of the present study. 27 Although throughout this study, the preferred term is "Commonwealth Africa," our scope includes Zimbabwe, a non-Commonwealth member, and excludes two member countries, Cameroon and Mozambique. Apart from being a largely civil law system, the preambular bill of rights in Cameroon's 1996 Constitution is enforceable by the Constitutional Council (modelled on the French institution), not the judiciary. See Cameroon Const. Art. 46, and CM. Fombad, "The New Cameroonian Constitutional Council in a Comparative Perspective: Progress or Retrogression?" (1998) 42 J. Afr. L. 172. Cameroon was partly under British colonial rule. But Mozambique never had any formal colonial ties with the United Kingdom and was admitted as a member of the Commonwealth in rather exceptional circumstances. See (visited 15 August 2001). Zimbabwe formally withdrew from the Commonwealth in December 2003 following a decision of Commonwealth Heads of Government renewing Zimbabwe's suspension from the Councils of the Commonwealth, originally imposed in March 2002. 28 Although not always appropriate, this categorization of the African continent has a special functional significance for our present purpose, as the countries with the longest experience with bills of rights in Africa are all south of the Sahara. We are aware, although of no moment for our purpose, that the Sahara is also usually regarded as a natural division of the continent, hence the alternative expression, Africa south of the Sahara (or "tropical Africa"). Cf. G.W.F. Hegel, The Philosophy of History (Amherst, N.Y.: Prometheus Books, 1991) at 91-99 (racist claim that North Africa is white or "European" Africa, contrasted with sub-Saharan or black Africa). The cultural affinity and historical ties between North African countries and the Mediterranean and Southeast Asia nevertheless put them in a category separate from the rest of Africa. For a similar reason, the Indian Ocean island nations of Mauritius and Seychelles are sometimes excluded from sub-Saharan Africa. See, e.g., R. Stock, Africa South of the Sahara: A Geographical Interpretation (New York: Guilford Press, 1995) at 5. We have however not done so here,

19 Saharan region of Africa includes a total of forty-eight states and covers 24.6 million sq. kilometres, roughly 81% of the total landmass of the continent, or three times the size of continental United States.

Although our study does not advance any claim that the larger African story is simply the Nigerian situation writ large, there exists some basis for projecting a Nigerian case study onto the wider platform. Firstly, between 1960 and 1970, neo-Nigerian bills of rights were adopted in eleven countries in Africa upon independence (Botswana, Gambia,

Kenya, Lesotho, Malawi, Mauritius, Sierra-Leone, Seychelles, Swaziland, Uganda, and

Zambia).283 However, during the next decade, and especially in the eighties and nineties, the Nigerian model became less influential. It was replaced in some countries with more inclusive bills of rights reflecting the breadth of the so-called International Bill of Rights

(the Universal Declaration of Human Rights and the two UN human rights covenants of

1966, which came into force in 1976). Nonetheless, in at least nine African countries today there are constitutional bills of rights definitively classifiable as neo-Nigerian.

Secondly, the Nigerian experience in bill of rights decision-making remains particularly instructive for most of sub-Saharan Africa. Even by 1960, with the advantage of a well- trained, indigenised judiciary,29 the largest bar in independent Africa, and competitive

because the two countries belong to the Commonwealth and share a common legal and bill of rights heritage with Nigeria and several other countries in Africa. 28a See chapter 2, note 2 and accompanying text. 29 Nigeria had an indigenous chief justice even before the end of colonial rule. In contrast, Tanzania, for example, had only two qualified African lawyers at the time of independence (1961). See M.D.K. Rwelamira, "The Tanzanian Legal Profession" in C.J. Dias, et al., Lawyers in the Third World: Comparative and Developmental Perspectives (Uppsala: Scandinavian Institute of African Studies, 1981) 204 at 213. Even ten years later, it was considered by some that there were no sufficiently experienced Tanzanian candidates to replace a retiring expatriate chief justice. See Widner, supra note 9 at 114-15. The International Bar Association reported in 2002 that there were only 200 lawyers in Malawi. See http://www.ibanet.org/pdf/HRIMalawiReport.pdfat 45.

20 politics, Nigeria was theoretically the most favourable environment for activist human

rights judicial policy making in Africa. But this has not been the result. The present study

offers a tentative cross-national validation of our thesis in the African context.

Nonetheless, the experience of the Nigerian Court is not necessarily closely replicated

elsewhere in Commonwealth Africa and even less so in the remainder of the continent.30

The contrasting examples of Botswana and Zimbabwe, discussed in chapter one,

show that the constraint of the political environment on the policy output of courts is

uneven in Africa. In Botswana, there is a stable tradition of political liberalism. In

Zimbabwe, on the other hand, in spite effective mobilization of judicial remedies by

interest groups, judicial independence was precarious even in the best of times. The activism of the Zimbabwe Supreme Court before 2001 convincingly confirms the expectation that where a judiciary is receptive to mobilization of a bill of rights by

interest groups, judicialization of public policy is likely to become very pronounced, as

Francophone Africa has followed a different path from Nigeria. In the 1960s, only one-third of these states had a constitutional bill of right. But political liberalization of the late 1980s and the 1990s resulted in the universal spread of constitutional bills of rights in Africa. Unlike the Nigerian bill of rights, Francophone African bills of rights typically incorporate the French Declaration of the Rights of Man and of Citizens (1789) and the Universal Declaration of Human Rights. There is however a significant institutional gap between Francophone and Commonwealth Africa in the administration of bills of rights, in that in the majority of the former, the rights can hardly be classified as justiciable (in terms of availability of judicial remedies), and at any rate, jurisdiction is vested in a quasi-judicial body instead of the judiciary. Although in a most of these countries (roughly two-thirds), this body is styled "constitutional court" or a "constitutional chamber" (of a court of appeal or supreme court) rather than a constitutional council, as in France or indeed the remainder of Francophone Africa, competence to mobilize these institutions is, unlike with Commonwealth Africa, institutionally restricted in all but half dozen states to officials. In addition, in spite of formal provisions of the constitution, the institutional independence of the judiciary and the constitutional courts is not always obvious. However, it is well known that since the early 1970s, the French Conseil Constitutionnel has been engaged in activist constitutional review. For an account of the transformation, see A. Stone, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (Oxford: Oxford University Press, 1992) at 60-78; J. Bell, French Constitutional Law (Oxford: Clarendon Press, 1992) at 147-51. This development has yet to have a measurable impact on the African institutions. However, the Constitutional Court (Cow constitutionelle) of the Republic of Benin, whose jurisdiction may be invoked by individuals, associations, and non-governmental

21 courts naturally seek to maximize their power. However, the subsequent substantial reversal of this process and the weakening of the judiciary in that country, as a result of pressure from the governing elite and their supporters, appear to indicate a very important, if elementary lesson: an activist court is insecure, just like complaint courts, as long as it is weakly institutionalized as a major policy maker and has limited diffuse support. Another important factor creating national variations in the performance of

African courts is that in transitional or weak democracies a powerful incentive structure for courts to become assertive may result from uncertainty of political turnover and the role of foreign donors as a check on the excesses of political authorities.

3. Autonomy as the Index of Institutionalization: A Framework for Analysis of Activist Decision-Making Capacity of Courts Autonomy is a critical index of institutionalization, the process by which organizations and procedures acquire value and stability. Samuel Huntington argued long ago that the level of institutionalization of any particular organization or procedure can be measured by its adaptability, complexity, autonomy, and coherence.31 To paraphrase Huntington, highly institutionalized courts have integrity that is lacking in less developed systems, which are highly vulnerable to outside influences.32 While adaptability to environmental challenges is an acquired organizational characteristic (through age, for example), autonomy is a means to coherence, enabling the organization to develop, as Huntington

organizations, has probably been more activist than the judiciary of many Commonwealth African countries. It has handed down a number of very significant human rights decisions since 1994 31 See S.P. Huntington, Political Order in Changing Societies (New Haven: Yale University Press, 1968) at 12-24 (discussing the "criteria of political institutionalization") [hereinafter, Huntington, Political Order]. 32 Ibid, at 20.

22 put it, an esprit and style that become the distinctive marks of its behaviour. Autonomy in this sense of course implies the institutional independence of the judiciary or, at least, a sufficient organizational separation from the executive branch. But it is not necessarily reducible to either of these or even less so to formal judicial independence

Although we draw extensively on positive theories of courts and decision-making, the present study is a legal (normative) rather than an "empirical" analysis. No attempt is made in the pages that follow to operationalize "judicial institutionalization" or to provide criteria for a "scientific" measurement of levels of institutionalization of the judiciary in Africa.35 However, using autonomy as a surrogate for institutionalization, it

33 Ibid, at 22. 34 See E.S. Herron & K.A. Randazzo, "The Relationship Between Independence and Judicial Review in Post-Communist Courts" (2003) 65 J. Politics 422 [hereinafter Herron & Randazzo, "Post-Communist Courts"] ("our evidence indicates that constitutional and statutory provisions designed to promote judicial independence are not significantly related to the exercise of judicial review" ibid, at 435). See also CM. Larkins, "Judicial Independence and Democratization: A Theoretical and Conceptual Analysis" (1996) 44 Am. J. Comp. L. 605 at 611, 621 [hereafter Larkin, "Judicial Independence and Democratization"] ("significant levels of independence [are] contingent on the degree to which the judicial institution has a distinct and discrete role...to regulate the legality of state acts, enact justice, and determine general constitutional and legal values. [A] more institutionalized judiciary is by default more independent. This is not only because one of its defining characteristics is autonomy, but also because an institutionalized judicial system implies one which has a broad range of authority within the political system. An institutionalized judiciary, in other words, exhibits the traits of [functional] independence,"). There are important lessons for Africa in a recent evaluation of judicial independence in Central-Eastern Europe. See Open Society Institute, "Monitoring the EU Accession Process: Judicial Independence" (2001) online: < http://www.eumap.org/reports/2001/iudicial> (date accessed: 11 June 2003). It must be admitted however that "judicial independence" is a problematic concept. See L. Kornhauser, "Is Judicial Independence a Useful Concept" in S.B. Burbank & B. Friedman, eds., Judicial Independence at the Crossroads: An Interdisciplinary Approach (Thousand Oaks, Calif.: Sage Publications, 2002) 45; P.S. Karlan, "Two Concepts of Judicial Independence" (1999) 72 S. Cal. L. Rev. 535; Russell, supra note 7; J. Ferejohn, "Independent Judges, Dependent Judiciary: Explaining Judicial Independence" (1999) 72 S. Cal. L. Rev. 353. But see O.M. Fiss, "The Limits of Judicial Independence" (1993) 25 U. Miami Int.-Am. L. Rev. 57 (regime relative independence). 35 But see A.N. Allott, "The Independence of the Judiciary in Commonwealth Countries: Problems and Provisions" (1994) 20 Comm. L. Bull. 1428 at 1444-46. Huntington indeed suggested that, if the criteria of institutionalization "can be identified and measured, political systems can be compared in terms of their levels of institutionalization. And it will also be possible to measure increases and decreases in the institutionalization of particular organizations and procedures within a political system." See Huntington, supra note 31 at 12. Cf. K.T. McGuire, "The Institutionalization of the U.S. Supreme Court" (2004) 12 Pol. Analysis 18 at 129-35 ("measuring judicial institutionalization").

23 is possible to establish at least a rough correlation between the capacity of courts to engage in activist decision-making and the extent of their institutionalization. More highly institutionalized courts tend to be more autonomous, and therefore have a greater capacity for activist decision-making. It is difficult to talk meaningfully of judicial independence unless there exists a possibility of judges gaining critical distance on statutes or other official policy.36

Calibrating the activism of courts is problematic. There is no uniform criterion in the literature. A suggested indicator is the extent to which courts are mobilized in human rights cases (measured by the volume of the human rights decision-making in its overall business over a certain period). A strong demand for human rights decision-making is presumably recognition of a court's activism/ autonomy, otherwise there would be no point. Tate and Haynie, for example, have applied this methodology to measure the performance of the Philippine Supreme Court.37 The Nigerian Supreme Court would fare very poorly by any assessment based on simple quantification of human rights cases relative to total decisional output. However, the methodology is problematic. A simple output analysis in itself tells nothing about many factors, such as legal mobilization, relevant to institutional performance.

See K.L. Scheppele, "Declarations of Independence: Judicial Reactions to Political Pressure" in Burbank & Friedman, supra note 34 at 227. We use "activism" guardedly and in the literal sense of active intervention in public policy, whether conservative or progressive. See B.C. Canon, "Defining the Dimensions of Judicial Activism" (1983) 66 Judicature 236. But see Baxi, "Avatars of Indian Activism" supra note 2 at 170 (^Reactionary judicial 'activism' is an oxymoron") and "Preface" in S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits (New Delhi: Oxford University Press, 2002) at ix-xxi.. In the former, he makes a distinction between an 'active' and an activist judge. In the latter, he provides a more elaborate typology: 'reactionary,' 'progressive,' 'eclectic,' and 'opportunistic' activism. These classifications are not helpful for our present purpose. 37 See C.N. Tate & S.L. Haynie, "Authoritarianism and the Functions of Courts: A Time Series Analysis of the Philippine Supreme Court, 1961-1987" (1993) 27 Law & Soc'y Rev. 707.

24 A modified approach is the frequency and direction of "anti-government"

decisions, i.e. cases whose outcome were unfavourable to official action or policy, in a

court's human rights decision-making.38 There are well-known attempts to measure the

independence of the Mexican Supreme Court on this basis.39 Of course, as a simple

quantification, this method is as problematic as any other fetishizing of numeric value.40

All cases do not weigh equally on a policy making scale, and a preponderance of

Theodore Becker speculated that the independence of judges can be operationalized and measured by the presence/ absence of factors such as the extent to which the courts are mobilized against government action or policy and the rate at which the courts render anti-government decisions. See T. Becker, Comparative Judicial Politics: The Political Functioning of Courts (Chicago: Rand McNally, 1970) at 145- 54. He suggested that "the judiciary's independence is relative to the degree to which the power of judicial review is exercised - and the power of judicial review is relative to the actual degree of independence (potential and actual) extant in that society." Ibid, at 214. 39 See P. Gonzalez-Casanova, Democracy in Mexico 2nd ed. trans. D. Salti (London/ New York: Oxford University Press, 1970) at 23-24; C. Schwarz, "Judges under the Shadow: Judicial Independence in the United States and Mexico" (1973) 3 Cal. W. Int'l L.J. 260 at 313-25. A similar method has recently been applied to measure judicial activism in the Supreme Court of Canada. See S. Choudhry & C.E. Hunter, "Measuring Judicial Activism on the Supreme Court of Canada: A Comment on Newfoundland (Treasury Board) v. NAPE' (2003) 48 McGill L.J. 525 at 531-34 (baseline of "non-activist" behaviour is a government win rate of one hundred per cent). But see C.P. Manfredi & J.B. Kelly, "Misrepresenting the Supreme Court's Record? A Comment on Sujit Choudhry and Claire E. Hunter, 'Measuring Judicial Activism on the Supreme Court of Canada'" (2004) 49 McGill L.J. 741 at 744-46 40 A more sophisticated version of this methodology, introduced in recent years, determines the relative performance of parties in litigation according to so-called net advantage. This value is derived from the difference between success rate as appellant of a particular category of litigants, say, government, business or individuals, and the success rate of their opponents when the latter are appellants. This balance is necessary because courts with a largely mandatory docket, such as the Supreme Court of Nigeria, are more likely to uphold a lower court decision. Hence it is necessary to factor in the success rate of the other party when they are appellants according to the following formula: net advantage = success rate as appellant - (I — success rate as respondent). See S. Wheeler, et al., "Do the 'Haves' Come Out Ahead? Winning and Losing in State Supreme Courts, 1870-1970" (1987) 21 Law & Soc. Rev. 403 at 418. For an exploratory study of net advantage of parties in final courts of appeal in India, South Africa and Tanzania, among others, see S.L. Haynie, et al., "Winners and Losers: A Comparative Analysis of Appellate Courts and Litigation Outcomes," paper read at the annual meeting of the American Political Science Association, 2001. Available online: < http://www.artsci.lsu.edu/poli/research/archive/HaynieAPSA2001.pdf> (date accessed: 15 October 2003). See also H. Kritzer, "The Government Gorilla: Why does the Government Come Out Ahead in Appellate Courts" in H.M. Kritzer & S.S. Silbey, eds., In Litigation: Do the "Haves" Still Come Out Ahead (Stanford: Stanford University Press, 2003) at 342 [hereinafter Kritzer, "Government Gorilla"]. However, the net advantage of parties does not tell us anything about the capacity or tendency of courts to intervene in major areas of public policy. Thus, a favourable net advantage for individuals as against government may be somewhat misleading since the cases on the basis of which it is measured may be routine or merely affecting marginal areas of public policy. At any rate, in the Supreme Court of Nigeria, government is

25 decisions in favour of government is actually the norm practically everywhere. For

example, the comparable rate of disposal in favour of the government in the United States and Canadian Supreme Courts and the South African Constitutional Court respectively, for example, ranges from over 60 to over 70 per cent.

To be meaningful, what is critical is whether the "anti-government" decisions, frequency notwithstanding, constitute a substantial judicial intervention in major public policy issues. Appropriate measurement, therefore, depends not necessarily on the numeric value of decisional output but on the degree of judicial intervention in public policy (reckoned in terms of routinization as well as policy subject matter).43 What is important is the degree of compliance. Thus, Joel Verner has attempted to construct a judicial autonomy-activism typology of Latin American supreme courts along an independent—dependent continuum.44 At the positive margin of the spectrum are the independent-activist courts. This category includes the Supreme Court of Costa Rica's constitutional chamber {Sala Constitutional or Sala IV), which has consistently and

rarely appellant in human rights cases. Therefore, it may be impossible to derive a statistically credible net advantage in relation to the government. 41 See Kritzer, "Government Gorilla," supra note 39. 42 See K.S. Rosenn, "The Protection of Judicial Independence in Latin America" (1987) 19 U. Miami Inter-Am. L. Rev. 1 at 11-12; Larkin, "Judicial Independence and Democratization," supra note 34 at 617. And Jennifer Widner has pointed out, despite its intuitive appeal, simply "looking only at outcomes of cases providefs] no means for determining which decisions were really the result of partisan influence and which were the product of poor preparation by counsel or of the underlying facts of the cases." See Widner, Rule of Law, supra note 9 at 33. In addition, there is what Gretchen Helmke has called "strategic defection," a tendency of dependent or institutionally insecure courts to rule more frequently against a current government that is falling out of power. See G. Helmke, "The Logic of Strategic Defection: Court- Executive Relations in Argentina under Dictatorship and Democracy" (2002) 96 Am. Pol. Sci. Rev. 291; M. Iaryczower, P.T. Spiller & M. Tommasi, "Judicial Independence in Unstable Environments, Argentina 1935-1998" (2002) 46 Am. J. Pol. Sci. 699. "Strategic defection" anti-government decision-making although formally activist, camouflages the reality that the court does not enjoy a wide degree of autonomy. 43 Judicial intervention must be routine to be meaningful. Episodic activism or intervention in marginal areas of public policy may not count for much as an indicator of the power of a court.

26 successfully resisted encroachments upon its independence. Such courts freely intervene in the policy process, and their decisions are routinely observed and respected. At the negative margin are the "minimalist" (or, worse still, "personalist") courts, which

"function mainly to rubberstamp decisions made elsewhere in the political process."45

Somewhere between these margins are those courts that are classifiable as "reactive."

Depending on their degree of autonomy, they may be sub-categorized either as "stable- reactive" or "reactive-compliant." A court within the former group is 'stable' because "it has not experienced direct assaults on its integrity or authority by an arbitrary executive or by a new military regime." But though stable, this is not an activist court.

It is a 'reactive' court because it consistently sets general limits to executive, legislative, and administrative behaviour. Not an 'activist' court, it does not attempt to make or change basic public policies initiated and supported by the government. This court is routinely respected by the government as long as it restricts itself to 'non-political' questions; that is, it does not concern itself with questions of partisan politics nor fundamental public policy. ...It exercises a circumscribed decisional role as well.

"Reactive-compliant" courts, on the other hand, are less autonomous. While sometimes able to set limits to government action, these courts become necessarily compliant in the face of executive demands or threats, or are persuaded or forced to do so in order to secure their existence.47 Using Verner's analysis, the Supreme Court of

Nigeria, like its Mexican counterpart,48 is a stable-reactive court. A majority of African

J.G. Verner, "The Independence of Supreme Courts in Latin America: A Review of the Literature" (1984) 16 J. Lat. Amer. Studies 463. 45 Ibid, at 494. 46 Ibid, at 484-85. 47 Ibid, at 487. 48 Verner classifies the Supreme Court of Mexico as stable-reactive. This is supported by a later study. See P. Domingo, "Judicial Independence: The Politics of the Supreme Court in Mexico" (2000) 32 J.

27 final courts of appeal may appropriately be categorized as stable-reactive, reactive-

complaint or even minimalist.

The only non-controversial exception would be the South African Constitutional

Court, which is evidently independent-activist. Perhaps also, the Botswana Court of

Appeal may arguably fall within the same category or, at any rate, may closely approach

the threshold.4 In contrast, a formerly activist court such as the Supreme Court of

Zimbabwe would in Verner's typology now be considered "attenuated-activist." In

Huntington's terms, that court could not successfully weather critical environmental

challenges. A once-activist court, as we shall see in chapter 1, it succumbed rather rapidly

to onslaught from the government. Despite its markedly activist career, the Zimbabwe

Court unfortunately did not have enough time to consolidate its autonomy.50

This study does not offer any justification of judicial review. It is not necessary to

do so. Judicialized bills of rights have been part of the African legal landscape for over

four decades. If anything, they have become even more prominent today than previously.

The central objective of this study is therefore not a justification of judicial review but a

consideration of why African courts have, in general, been reticent in human rights policy

Lat. Amer. Studies 705. But see now P. Domingo, "Judicialization of Politics: The Changing Political Role of the Judiciary in Mexico" in R. Sieder, L. Schjolden & A. Angel, eds., The Judicialization of Politics in Latin America (New York: Palgrave Macmillan, 2005) 21 at 29-35. 49 Evidence for this includes the revision of the citizenship law by the government in compliance with a decision of the Court of Appeal, which by any standard, was a major policy intervention by the judiciary. See Attorney General v. Unity Dow [1992] L.R.C. (Const.) 623, [1994] 6 B. Const. LR.1, 103 I.L.M. 128. A similar decision elsewhere may have instead easily provoked a constitutional amendment to render the decision irrelevant, as indeed was the situation in Zimbabwe. See Rattigan v. Chief Immigration Officer [1995] 2 SA 182, [1995] 1 B. Const. LR 1 50 Huntington argued that the adaptability of organizations, hence institutionalization, is partly a function of age. See Huntington, Political Order, supra note 30 at 13-14 ("The probability that an organization which is one hundred years old will survive one additional year, it might be hypothesized, is

28 making in spite of constitutional assurance of judicial power. It must be admitted though

that the general tenor of this work suggests that judicial activism is something

"desirable." But this tone is also because of our use of judicial activism as a surrogate for

judicial autonomy.

We actually go beyond this to suggest that by becoming active constituencies of

the Supreme Court, social movements and interest groups legitimize the court's decision­

making. This assumption is based on the well-known fact that litigation is a valuable

means through which such groups influence public policy-making. If this is the case with

Western democracies,51 it is even more justified in countries where democratic channels

are not always accessible to these groups.52 Unfortunately, Western critiques of judicial

policy-making take little or no account of experiences elsewhere. In India, for example,

Upendra Baxi has noted, the Supreme Court "is not just a Court of last legal recourse, but

perhaps one hundred times greater than the probability that an organization one year old will survive one additional year.") 51 See M. Smith, "Interest Groups and Social Movements" in M. Whittington & G. Williams, eds., Canadian Politics in the 21st Century (Scarborough, ON: Nelson, 2000) 179 at 186-87. A leading Canadian leftist critic has acknowledged, rights litigation may reinforce legislative lobbying and political mobilization. See J. Fudge, "The Public/Private Distinction: The Possibilities of and the Limits to the Use of Charter Litigation to Further Feminist Struggles" (1988) 25 Osgoode Hall LJ. 485 at 548, 551. See generally, B. Sheldrick, "Law, Representation, and Political Activism: Community-based Practice and the Mobilization of Legal Resources" (1995) 10 (2) Can. J. Law & Soc'y 155. For an overview and summary of the literature, see B. Sheldrick, Perils and Possibilities: Social Activism and the Law (Halifax: Fernwood: 2004) at 21-36 (revising earlier paper) and 57-82. 52 On India, for example, see R. Dhavan, "The Constitution as the Situs of Struggle: India's Constitution Forty Years On" in L.W. Beer, ed., Constitutional Systems in Late Twentieth Century Asia (Seattle: University of Washington Press, 1992) 373. In Africa, generally, national legislatures have largely been ineffective and therefore have not provided a democratic counterweight to authoritarian governance. See generally, B.O. Nwabueze, Presidentialism in Commonwealth Africa (London: Hurst & Co., 1974) 255-97. For a contemporary study of political access and effectiveness of national legislatures in east and southern Africa, see J. Hatchard, M. Ndulo & P. Slinn, Comparative Constitutionalism and Good Governance in the Commonwealth: An Eastern and Southern African Perspective (Cambridge: Cambridge University Press, 2004) 99-149.

29 quite often it may also be the court of last political recourse," "with historic responsibility that did, and does not, quite confront the adjudicature of the 'developed,' indeed, 'overdeveloped' apex courts in the North."54 Critical scholarship on the African experience with judicialism has been growing since the 1960s. In general, unlike the

Western discourse, it is characterized not by distrust of judicial review but by cynicism.

"In Africa," wrote Robert Seidman, "everything conspires against legality."55.

4. Disaggregating the Supreme Court

A basic assumption of this study is that the Supreme Court of Nigeria is a strategic actor.

This perspective of the court appears misleading since it is a relatively large body of judges - sixteen - who are constitutionally required to give individual opinions in every case. Nor is the Court a single decision-making unit. There is a complete absence of en banc decision-making. The work of the Court is instead shared between three separate five-judge panels. A special enlarged panel of seven is struck for constitutional cases.

The three regular panels are completely reconstituted for each of the three terms of the

Court annually. No two Justices may serve on the same panel during more than one term in any year. To avoid conflicting decisions, a panel cannot overrule a previous decision of the Court. A seven-judge panel is struck if the Court is requested to reconsider a previous decision.

53 U. Baxi, The Indian Supreme Court and Politics (Lucknow: Eastern Bk Co., 1980) at 17 [emphasis in original]. See further, R. Dhavan, "Law as Struggle: Public Interest Law in India" (1994) 36 J.I.L.I. 302. Baxi, "Taking Suffering Seriously: Social Litigation in the Supreme Court of India" in R. Dhavan, R. Sudarshan & S. Khurshid, eds., Judges and the Judicial Power: Essays in Honour of Justice V.R. Krishna Iyer (London: Sweet & Maxwell, 1985) 289. 54 See U. Baxi, "The Avatars of Indian Judicial Activism" supra note 2 at 158-59. 55 See R.B. Seidman, "Constitutions in Independent, Anglophonic Sub-Saharan Africa: Form and Legitimacy" [1969] Wis. L. Rev. 83 at 90. See also J.C.N. Paul, "Some Observations on Constitutionalism, Judicial Review and Rule of " (1974) 3 5 Ohio St. LJ. 8 5.

30 The Court's orientation is likely to be significantly influenced by the fact that its

Justices are primarily, and nowadays, always, selected from serving appellate judges.

Prior to their judicial career, Supreme Court Justices typically would have held a legal position in the public service. A prior academic career is rare, and generally the Justices maintain almost no active liaison with law schools. This, we shall argue in chapters 3 (§

3) and 5 (§ 1), respectively, is a factor in the decision-making orientation of the Court.

Orderly development and transmission of the institutional ethos is endangered by an unhealthy preponderance of freshmen justices as a result of high turnover on the Court.

Chapter 3 profiles the Justices and examines some implications of recruitment on the

Court's institutional ethos. Chapter 5 §2 considers institutional fragmentation.

This study is, however, not primarily concerned with individual Justices as decision makers. We have therefore not provided an analysis of personal attributes. Nor do we believe this can be satisfactorily done at the present time. The quality of biographical information currently available is very poor, and almost all that is known about the Court's internal politics is anecdotal. Our primary interest, instead, is the influence of the group, institution, and environment on the behaviour of the Justices.56

Positive theories of courts and decision-making since C. Herman Pritchett's path- breaking Roosevelt Court51 have been based mainly on micro-analysis of judicial

56 See J.L. Gibson, "Decision Making in Appellate Courts" in J.B. Gates & C.A Johnson, ed., The American Courts: A Critical Assessment (Washington, D.C.: CQ Press, 1991) 255 at 256 (for distinction between micro- and macro-analysis of judicial behaviour) [hereinafter Gibson, "Decision Making in Appellate Courts"]. 57 C.H. Pritchett, The Roosevelt Court: A Study in Judicial Politics and Values, 1937-1947 (New York: Macmillan, 1948). See also his Civil Liberties and the Vinson Court (Chicago: University of Chicago Press, 1954). Pritchett applied quantitative technique to describe individual judicial behaviour (vote) in the United States Supreme Court. These epoch making works had a mixed legacy. On the one hand is the strict micro-analytic attitudinal approach championed by Glendon Schubert and later fully developed by Harold

31 behaviour. However, the psychometric attitudinal model, which operationalises the individual judge's preferences, or attitudes and values59 with cumulative scaling, or scalogram (Guttman scale analysis), as it is known, is not particularly appropriate for our present purpose. Our concern is institutional behaviour rather than how judges behave as

Spaeth, Jeffrey Segal, and David Rhode. See G. Schubert, ed., Judicial Decision-Making (New York: Free Press, 1963); and The Judicial Mind: The Attitudes and Ideology of Supreme Court Justices, 1946-1963 (Evanston, 111.: Northwestern University Press, 1965); D.W. Rhode & H.J Spaeth, Supreme Court Decision Making (San Francisco: W.H. Freeman, 1976); J.A. Segal & Spaeth, The Supreme Court and the Attitudinal Model (New York: Cambridge University Press, 1993), — The Supreme Court and the Attitudinal Model Revisited (New York: Cambridge University Press, 2002). See further, notes 58 & 59 below and accompanying text. The other legacy is a semi micro-analytic approach: the neo-institutional strategic or rational choice approach to judicial decision-making, which argues that the justices, like other political actors, are maximizers of their preferences and hence must act strategically, or interdependently, in order to achieve a result closest to their own preferences. See W.F. Murphy, Elements of Judicial Strategy (Chicago: University of Chicago Press, 1964); L. Epstein & J. Knight, The Choices Justices Make (Washington, D.C.: CQ Press, 1998); F. Maltzman, J.F. Spring & P.J. Wahlbeck, "Strategy and Judicial Choice: New Institutional Approaches Supreme Court Decision-Making" in C.W. Clayton & H. Gillman, Supreme Court Decision-Making: New Institutionalist Approaches (Chicago: University of Chicago Press, 1999) at 43-63 [hereinafter Clayton & Gillman, Supreme Court Decision-Making]. Role theories of judicial decision-making have also been influential. For an overview of the various approaches, see C.H. Pritchett, "Public Law and Judicial Behavior" (1968) 30 J. Politics 480 at 496-509. 58 Attitudinal model theorists explicitly regard the model as a continuation of Legal Realism's critique of legal formalism. See Segal & Spaeth, Attitudinal Model, ibid., at 65; H.J. Spaeth, "The Attitudinal Model" in L. Epstein, ed., Contemplating Courts (Washington, D.C.: CQ Press, 1995) 296 at 297-305. But the "Legal" Model caricature in attitudinal analysis is a hardly recognisable in the legal academy. See, e.g., H.J. Spaeth & J.A. Segal, Majority Will or Minority Will: Adherence to Precedence on the U.S. Supreme Court (New York: Cambridge University Press, 1999). But see F.B. Cross, "Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance" (1997) 92 Nw. U. L. Rev. 251 at 285 ("because most of these researchers do not have law degrees, they may tend to oversimplify the nature of the legal model.") [hereinafter, Cross, "Political Science and the New Legal Realism"]. 59 See Rhode & Spaeth, supra note 57 at 70-93. It is assumed that the justices' voting patterns on any particular issue or policy remain stable over a long period, hence traditionally represented as a unidimensional continuum (liberalism-conservatism). Secondly, any impact non-attitudinal factors, such as roles, interests groups, public opinion and so on, may have on decision-making is wholly discounted. See Segal & Spaeth, Attitudinal Model, supra note 57 at 234-41. In simple terms, the function of cumulative scaling is to determine whether a single dominant attitude underlies the judicial vote in a series of cases. (For an explanation of the method, see J. Tanenhaus, "The Cumulative Scaling of Judicial Decisions," (1966) 79 Harv. L. Rev. 1583.) The technique has been extensively applied to the United States Supreme Court (see Rhode & Spaeth, supra note 57 at 134-168; Segal & Spaeth, ibid.), although there is a growing current of opinion today that the once widely acclaimed results are actually inconclusive at best. See, e.g., L. Baum, The Puzzle of Judicial Behavior (Ann Arbor: University of Michigan Press, 1997); Baum, Judges and Their Audiences: A Perspective-on Judicial Behavior (Princeton & Oxford: Princeton University Press, 2006).

32 individuals. Also, the attitudinal model focuses not on content of judicial decision­ making -judicial opinions - but on the judge's vote and vote-bloc formation.61 Legal analysis, in contrast, is most especially concerned with the former.

Micro behavioural analysis, of any kind, has rarely been applied to African courts.63 At any rate, for a number of reasons, with the Supreme Court of Nigeria in particular, the micro-analytic model is quite problematic. The institutional autonomy of

60 See H. Gillman & C.W. Clayton, "Beyond Judicial Attitudes: Institutional Approaches to Supreme Court Decision-Making" in Clayton & Gillman, Supreme Court Decision-Making supra note 57 at 1-12. 61 Behavioural judicial research in political science treats judicial opinions (or reasoning) as mere "rationalization," of decision-making, rather than its explanation. (Legal reasoning is rejected as unscientific because it is non predictive.) But as an "external" critique of judicial decision-making, the behavioural method is useless to any internal understanding of that process. See H.L.A. Hart, The Concept of Law 2nd ed. (Oxford: Oxford University Press, 1994) at 88-91, 242-44; R. Dworkin, A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985) at 167-77, and Law's Empire (Cambridge, Mass.: Harvard University Press, 1986) at 12-15; S.M. Griffin, American Constitutionalism: From Theory to Politics (Princeton, N.J.: Princeton University Press, 1996) at 135-139. Hart followed Peter Winch's thesis that social practice must be understood with reference to the meanings and interpretations offered by the actors themselves. See P. Winch, The Idea of a Social Science and its Relation to Philosophy (London: Routledge & Kegan Paul, 1958). See generally, B.Z. Tamanaha, "The Internal/ External Distinction and the Notion of a 'Practice" in Legal Theory and Sociolegal Studies" (1996) 30 Law & Soc'y. Rev. 163. But see Cross "Political Science and the New Legal Realism," supra note 58 at 280-85 (discussing internal/external critique). 62 F.B. Cross has provided a sympathetic appraisal of the value of attitudinal analysis in legal scholarship. See Cross, "Political Science and the New Legal Realism," supra note 58 at 309-26. 63 But see the analysis of the old Appellate Division of the Supreme Court of South Africa in G. Schubert, Political Culture and Judicial Behavior: Political Culture and Judicial Elites - A Comparative Analysis (Lanham, MD: University Press of America, 1985). Unlike North American, European, and even Indian courts, there is no known instance of an attitudinal analysis of an African court. For the supreme courts of Canada and India respectively, see P. Slayton, "Quantitative Methods and Supreme Court Cases" (1972) 10 Osgoode Hall L.J. 429, — "A Critical Comment on Scalogram Analysis of Supreme Court of Canada Cases" (1971) 21 U. Toronto L.J. 393; S.R. Peck, "The Supreme Court of Canada, 1958-1966: A Search for Policy Through Scalogram Analysis" (1967) 45 Can. Bar Rev. 667-725, and "A Scalogram Analysis of the Supreme Court of Canada, 1958-1967" in G. Schubert & D.J. Danelski, eds., Comparative Judicial Behavior: Cross-Cultural Studies of Political Decision-Making in the East and West (New York: Oxford University Press, 1969) 293-334; D.E. Fouts, "Policy-Making in the Supreme Court of Canada" ibid. 257-91; G.H. Gadbois, "Selection, Background Characteristics, and Voting Behavior of Indian Supreme Court Judges, 1950-1959" ibid. 221-56, "Supreme Court Decision Making" (1974) 10 Banaras L.J. 1-49, "Indian Judicial Behaviour" (1970) 5 Econ & Pol. Wkly 153; V.S.K. Haranath, "Supreme Court of India: 1950-70 - An Empirical Enquiry into Judicial Behaviour" (1973) 7 J. Const & Pari. Studies 116. However, any hypothesized explanations of the Indian Court using this method must be regarded at best as tentative, as dissent has never been a prominent feature of its decision-making. See R. Dhavan, The Supreme Court of India: A Socio-Legal Critique of its Juristic Techniques (Bombay: Tripathi, 1977) at 31- 37. Indeed, dissensus is even lower today that previously. See G.H. Gadbois, "The Decline of Dissent on

33 the Supreme Court is relatively weak, and the near absence of non-unanimous decisions makes its application totally unviable any way.64 As we point out in chapter 5 §2, the almost unbroken pattern of unanimity in human rights decision-making is clearly indicative of a court reluctant to risk depletion of its meager political capital with pronounced dissensus. This practice also indicates that either the issues for determination are rarely considered policy matters (and therefore there is lacking in the first place an element that may engender a division of opinion) or, perhaps more likely, the judges are not anxious to project a policy-making role. Whatever the explanation, there is simply insufficient basis to operationalise attitudinal differences among the justices of the

Supreme Court.65

Although there is little doubt that courts naturally seek to maximize their power, there is too little information on the internal politics of the Court66 available to support

the Supreme Court" in R.A. Sharma, ed., Justice and Social Order in India (New Delhi: Intellectual Publishing House, 1984) at 235-259. See chapter 5 §2 of the present study. 64 "A unanimous opinion," wrote C. Herman Pritchett, "is a composite and quasi-anonymous product, largely valueless for purposes of understanding the values and motivation of individual justices." See Pritchett, Roosevelt Court, supra note 57 at xii [emphasis added]. 65 The practice of the Supreme Court of Nigeria replicates the same problems that make the Supreme Court of India a poor subject for attitudinal analysis. First, the comparative short tenure of judges, leading to rapid turnover in the Court, makes it difficult to observe their responses over a reasonable time frame. Second, the use of small panels comprising only a fraction of the Court - only five (or occasionally, seven) judges of a sixteen-member Court (or two and three judges in the case of India) - to process the work of the Court rules out the possibility of all or a majority of the judges participating in the same cases. Third, the quantum and character of overt dissent in the Court has been such that it does not easily lend itself to behavioural analytical tools. See V.K. Gupta, Decision Making in the Supreme Court of India (A Jurimetric Study) (Delhi: Kaveri Books, 1995) at 162. See also M. Chakrabarty, Judicial Behaviour and Decision-Making of the Supreme Court of India (New Delhi: Deep & Deep, 2000). (The primary methodological problem where a court does not sit en banc is that the vote data is more relevant to subsets of the court. However, a modified cumulative scaling methodology has been applied to the United States Courts of Appeals, whereby attitude dimension(s) of the Court is constructed based on the decisions of the multiple combination of circuit judges sitting in panels. See J.P. Mclver, "Scaling Judicial Decisions: The Panel Decisionmaking Process of the U.S. Courts of Appeals" (1976) 20 Am. J. Pol. Sci. 749.) 66 There are no law clerks to provide a glimpse into the internal debates within the Court. Serving or retired Justices very rarely publicly discuss informal politics of the Supreme Court. There is only one systematic account in print by a serving or former Justice of the internal decision-making procedures of the

34 serious speculations on strategizing by the justices as maximizers of exogenously

determined preferences. There is also very little biographical material from which to

discern a record of attitudes of Supreme Court Justices. As yet, there is neither a

systematic compilation of the Justices' personal information nor indeed even a standard

biographical source. Judicial biographies are relatively rare in Nigeria and most of what

is available typically reveals almost nothing about the informal aspects of the Court's

decision-making regime.68 (That there is almost nothing in print on the internal politics of

the Supreme Court is partly because the myth of impersonal judging still weighs heavily

in the legal profession in Nigeria.)

Macro-analysis of judicial behaviour understands appellate decision-making as

constrained by institutional and organizational factors, including the political

environment in which courts function. Thus, the collegial nature of the Supreme Court,

for example, partly structures decision-making. As Tom Ginsberg has suggested,

individual judges in a collegial court presumably share a common desire to have the court

act strategically to maximize its power over time. Similarly, it has been argued, the need

to maintain its legitimacy and the support of other political institutions, as well as of the

Supreme Court. See CO. Oputa, "Towards Greater Efficiency in the Dispensation of Justice in Nigeria" in Y. Akinseye-George, (ed.), Law, Justice and Stability in Nigeria: Essays in Honour of Justice Kayode Eso (Ibadan: J. Shalom Multiserve Bureau, 1993) 1-48 (discussed in chapter 5 §2 of the present study). 67 For example, several members of the current Supreme Court do not appear in Who's Who in Nigeria 2nd ed (Lagos: Newswatch Publications, 2002). 68 Of the seventy-three justices appointed to the Court between 1956 and 2000, only three ever published an autobiography. Of these, the only particularly informative one for our purpose is A. Fatayi- Williams, Faces, Cases and Places (London: Butterworths, 1983). The others are K. Eso, The Mystery Gunman: History, Politics, Power-Play, Justice (Ibadan: Spectrum, 1996); U. Udoma, History and Law of the (Lagos: Malthouse Press, 1994) (a biographical constitutional history). The available biographies are: F. Coker, Sir , A Biography (Lagos: Times Press, 1972); I.O. Smith & D. Ogunremi, : A Jurist of Distinction (Lagos: Lagos State University, 1991); K. Muhammed, Rendezvous: An Authorized Biography of Chief Justice (Lagos:

35 mass public, clearly affects the behaviour of the judges. Judges are attentive to their larger political environments, and depending on the peculiar challenges, their reaction to these environments may elicit strategic behaviour.70 (It is this strategy aimed at a court's political environment, rather than intracourt strategy, that is the primary sense we use judicial strategy in this study.) There is obviously a need, therefore, for a better

• 71 understanding of how judicial behaviour may be influenced by institutional legitimacy.

Until recently, no serious attempt was made to understand how emergent or weakly institutionalized courts are constrained in decision-making. Strategic theories of judicial behaviour have now provided us with the means to better understand these courts.

5. Outline

This study discusses the institutional and normative framework of Nigerian Supreme

Court decision-making, principally explaining its strategic constraints and the general character of the Court as a decision-making system, and their impact on its policy output.

Final appellate courts are expected, in Bora Laskin's words, to "project their institutional character - their structure, composition, jurisdiction and organization for the dispatch of their judicial business - into their writing of opinions."7 The Supreme Court's human rights caselaw of the period studied is not substantial. Even so, the cases included in this

Malthouse Press, 1995); J.F. Ade-Ajayi, & Y. Akinseye-George, Kctyode Eso: The Making of a Judge (Ibadan: Spectrum Books, 2002). 69 See Gibson, "Decision Making in Appellate Courts," supra note 56 at 267. See also Ginsburg, Constitutional Courts, supra note 11. 70 See Gibson, "Decision Making in Appellate Courts," supra note 56 at 271 (drawing attention to a need for closer exploration of the ways in which individual judges react to their larger political environments). 71 See G.H. Gadbois, "The Institutionalization of the India Supreme Court" in J.R. Schimidhauser, ed., Comparative Judicial Systems: Challenging Frontiers in Conceptual and Empirical Analysis (London: Butterworths, 1987)111. 72 Laskin, "Institutional Character of the Judge" supra note 9 at 333.

36 study do not pretend to be a complete inventory. Rather, the focus is on two broad subjects: criminal and administrative justice respectively. These were the major concerns that motivated the introduction of the Bill of Rights in the first place. But more importantly, these are the only areas sufficiently litigated to provide adequate material for analysis. Nevertheless, because the opportunity for, and impact of, intervention in public policy is greatest here, these subjects provide an adequate platform for a general explanation of human rights decision-making in the Supreme Court.

Chapter 1 provides a general framework for evaluating the Court. The objectives of this chapter are first, to provide a broad institutional explanation of the Court's reticent human rights policy making. Second, drawing on experience throughout Africa, this chapter provides a cross-national validation of our thesis. There is a significant gap between formal recourse in African Bills of Rights and the actual institutional power of the courts. Our central claim is that these courts are generally weakly institutionalized and have limited institutional support. Support for this claim unfolds in three phases. We begin with a brief account of establishment of justiciable bill of rights in Africa, most of which are modeled on Nigeria's (fully discussed in chapter 2 §3A). The failure of this formal judicial empowerment to translate to active judicialization of public policy apparently contradicts demand models of judicialization. The experience of African courts demonstrates, at least on the short term, a superior relationship of the supply over the demand factor in judicialization of politics. African political opposition and interest groups, for example, are apparently highly cynical about legal strategies. Unless litigators expect that courts have a capacity, and are willing, to override decisions of policy

37 competitors, it would hardly be worth the effort to litigate policy issues or to consider litigation as a strategy for advancing political and organizational goals.

Finally, in the last section of this chapter, we establish weak institutional legitimacy as the primary explanation for the limited growth of institutional power of the

Supreme Court of Nigeria, and of other African courts generally. Partly because of a colonial legacy of authoritarian socialization and partly because of an erosion of their institutional legitimacy after colonialism, African courts have slender political resources and are highly deferential to government policy. In short, what the Bills of Rights promise, African courts have generally been unable to deliver. From a longitudinal perspective, however, the institutional power of the Nigerian Supreme Court is growing.

There was a noticeable expansion of power in the eighties and nineties, the last two decades of the period of the present study.

The three chapters following deal, respectively, with the Nigerian Bill of Rights, the Court's jurisdiction and personnel, and its workload. Chapter 2 explains the genealogy, normative structure, and influence of the Nigerian Bill of Rights. Section one discusses its evolution as the most influential model ever, spreading a common text over most of the Commonwealth. There is, regrettably, as yet a largely neglected potential to develop from this regime a "common law" of sort through extensive Afro-Caribbean transjudicialism. The specific sources of the text are identified and compared in section two. The primary source is the European Convention on Human Rights and Fundamental

Freedoms. The Nigerian text follows the language of the Convention very closely. There are three additional sources this text draws on. The Pakistan and the Malay Constitutions

38 are the sources of the provisions on the freedoms of religion and of movement respectively; and a British statute for the Sudan was the model for the recourse provision.

The weakness of its democratic rights provisions, absence of social or cultural rights, and the complete neglect of minority rights protection are genetic defects the

Nigerian bill of rights inherited from the Convention. On the other hand, it has a weaker textual commitment to equality than is available in the latter. While it is no accident that the Nigerian text reads invariably more like a code than a charter of fundamental rights,

(the Colonial Office's legal officers mediated the metamorphosis of the European

Convention into the Nigerian Bill of Rights), the extant practice of a clause-bound reading of the Nigerian Bill of Rights in the caselaw of the Supreme Court, as we explain in chapter 5, is perhaps less a result of its drafting than of the Court's strategic constraints and paucity of resources.

Chapter 3 discusses jurisdiction and recruitment. It explains emergence of the

Court from the shadow of its colonial antecedents and the development of its jurisdiction.

Next, it provides a recruitment profile of the Court. One of the most remarkable indicators of the maturation of the Supreme Court, in our view, is the institutionalization of an expectation of seniority in recruitment. Justices are usually selected from serving appellate judges. The stabilization of this policy ensures orderly recruitment, and equally importantly, engenders institutionalization of the Court. But it has several practical disadvantages. Firstly, conventional wisdom identifies "excessive" intra-judicial recruitment and homogeneity of the bench as factors that apparently negate prospects for a policy-minded final court of appeal. Secondly, it privileges seniority over ability, and

39 promotes the existing formalist orientation of the Court. Benjamin Nwabueze has blamed the poor intellectual quality of the African bench for the inability of judges to appreciate issues presented for decision, resulting in, as he put it, judicial opinions often devoid of insight and lacking intellectual stimulation. Thirdly, and very important, the stability and orderly development of institutional ethos and socialization are threatened by the typically short tenure of Supreme Court Justices nowadays, a cost of the present recruitment preferences. A freshman Supreme Court Justice today typically has tenure of only five or less years.

Chapter 4 analyzes the workload of the Supreme Court and consequences for its capacity. Section one provides a caseload profile. With a general jurisdiction, the Court is a prototypical final court of appeal in the Commonwealth. With this jurisdiction comes a heavy docket, which comprises mainly private law, particularly land title litigation, and criminal law. Human rights and public law account for five per cent or less. This study argues that supply-side constraint - the Court's reputation for reticence and its illiberal attitude to access - is a primary disincentive to sustained human rights litigation. The

Nigerian and African experience are evidence of the significance of the supply side of the judicialization of politics in the context of emergent courts.

Section two discusses the impact of caseload on the Court. Because it does not have substantial discretionary jurisdiction, the Court is overwhelmed with a large caseload, compounded by considerable arrears of work accumulated over several years.

The cluttered docket is enormously capacity wasting and severely impairs the Court's

73 B.O. Nwabueze, Judicialism in Commonwealth Africa: The Role of the Courts in Government

40 performance. Its structural impact on the Court is equally significant. The Supreme Court has become a relatively large body operating multiple panels. Third, the caseload situation has a direct bearing on the Court's institutional orientation. Conventional wisdom suggests that a large appellate caseload is better suited to error-correcting or supervisory function than to policy making.

A brief experiment with discretionary jurisdiction in the 1970s was aborted before there was any impact on the docket, and it is not clear that it was sufficient to transform the business of the Court. The transformatory effect of discretionary jurisdiction, as indicated by the experience of the supreme courts of Canada and the United States, is not necessarily a given. Its limited effectiveness in the Supreme Court of India, discussed as excursus to chapter 4 §2D, confirms this. Concluding this chapter, Section III discusses demand-side constraints on Supreme Court human rights decision-making. There are several barriers to getting rights issues on the agenda of the Court. Rights advocacy and public interest groups are a marginal constituency of the Court. Individual victims of human rights abuse often litigate without the sponsorship or support of organizations or interest groups. Legal resources are also limited. There is no public interest standing, and independent amicus curiae activity is almost non-existent.

Chapter 5 discusses how the Court's interpretive practice in human rights cases is framed by a poverty of normative and institutional resources. Section one is a general account of the Supreme Court's formalist decision-making. Its output is saturated with

Formal-style reasoning. Solutions, even in apparently hard cases, are "worked out" with

(London: C. Hurst & Co., 1977) at 310.

41 minimal effort. Rules and precedents are dispositive without more. It is easy. To be fair, however, with their career background as judges used to working out solutions by formal legal reasoning, and far more concerned with error-correcting than policy making,

Supreme Court Justices can hardly be expected to work out solutions differently. Apart from this, there was the initial relative unfamiliarity with constitutional rights adjudication. All the Justices trained as lawyers in English law schools and the Inns of

Court, where there were acculturated with parliamentary sovereignty and legal positivism. Against a background of authoritarian socialization of courts (chapter 1 §4B), formalism is invariably a tool in the service of excessive deference.

The remaining sections of this chapter provide structural and resource-based explanations for the Court's reticent decision-making. Sections two and three consider how the formalist orientation of the Supreme Court is reinforced by its decision-making structure and the allocation of institutional resources, and by limited legal resources respectively. We argue in the former section that the Court's strong consensus norm

(indicated by very little disagreement in decision-making) reflects a natural tendency to conserve its weak institutional support (or institutional power). Ironically, the institutional resources of the Court is frittered away by the existing practice of seriatim opinions and panel decision-making.

Section three discusses the potential value in human rights decision-making of transjudicialism. Particularly significant is the Court's limited use of international law, even the most important international rights instruments that Nigeria has accepted, but

42 (unlike the African Charter) not yet incorporated into domestic law. a International human rights instruments and their burgeoning jurisprudence are central to transjudicialism and contemporary rights discourse worldwide. But despite their growing use elsewhere in Africa, a formalist obsession with categories of the formal sources of

(national) law, as we explain in chapter 5 §3B, has discounted the value of international law in Supreme Court decision-making. But the limited role of transjudicialism and external norms generally is attributable largely to judicial strategy and the constraints on information flow to the Court. This is discussed in Section four. The Supreme Court depends too heavily on external information inputs, prominently briefs of arguments and oral arguments by the parties. Very little research goes into opinion-writing, as the

Justices have no research support whatsoever, and their training and career background do not always equip them with adequate research skills. Their workload leaves them with little spare time for extensive research and study any way.

Chapter 6 concludes the study with assessment of the accountability performance of the Supreme Court, the expansion of its institutional power over the period studied, and, in the final section, a glimpse beyond this period into the future of the Court. In section one, our evaluation of the accountability function of the Court applies the

73a International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, reprinted in (1967) 6 ILM 368, entered into force Mar. 23, 1976 (acceded to: 29 July 1993); International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, reprinted in (1967) 6 ILM 360, entered into force Jan. 3, 1976 (acceded to: 29 July 1993); Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), reprinted in (1989) 28 ILM 1448, entered into force Sept. 2 1990 (ratified: 19 April 1991) [the Convention standards are now incorporated in Nigerian law by the Child's Rights Act 2003]; Freedom of Association and Protection of the Right to Organise Convention (ILO No. 87), 68 U.N.T.S. 17, entered into force July 4, 1950 (ratified: 17 October 1960); Right to Organise and Collective Bargaining Convention (ILO No. 98), 96 U.N.T.S. 257, entered into force July 18, 1951 (ratified: 17 October 1960).

43 methodology suggested by Siri Gloppen. This function refers to the ability of courts to hold political office-holders accountable. This capacity is expected to be directly related to their institutionalization. We conclude that the performance of the function by the

Supreme Court is not yet satisfactory. Section two evaluates the growth of its institutional power. From a longitudinal perspective, the power of the Supreme Court is growing, but it is still not significant. This is partly because the existing non-competitive political system, the Court's environment, is not conducive to a great expansion of judicial power, and partly because institutional support of the Court remains slender. Most of the contemporary surge in the support of the Court's publics, we argue, is specific support stimulated by popular satisfaction with its recent policy output. Although diffuse support, in contrast, is still low, institutionalization and institutional power will grow with age.

The design of this research restricts it to roughly 5 per cent of the output of the

Supreme Court: human rights and constitutional cases. The findings may therefore have limited application to other aspects of the Court's work, or indeed the performance of other institutions in Nigeria. However, while the reader may glean from it almost nothing about how the Supreme Court decides land cases, to give the example of the bulk of its business, the purpose of the present study is not simply to describe how the Court decides rights cases either. It is instead to map the growth of the Court's institutional power, and rights cases are the best means of doing so. We have also taken little notice of

Court's output after 2000 except where it is necessary to complete a particular discussion.

A short postscript is appended to this study to acknowledge post-2000 developments.

74 See Chapter 6, infra, note 8.

44 Chapter One

AFRICAN BILLS OF RIGHTS IN INSTITUTIONAL PERSPECTIVE

A truism about African bills of rights is that, almost everywhere, they resulted from a

colonial process of constitutional reception, and have for the most part been inept in

respect of legal remedies. The common progenitor of most is a European Convention on

Human Rights-based bill of rights promulgated for Nigeria by the United Kingdom on 19

October 1959.1 This was one aspect of the implementation of the principal issues settled

at the resumed Nigeria Constitutional Conference the previous year. Although by no

means the earliest constitutional bill of rights in sub-Saharan Africa,3 its historic destiny

as official model for constitutional bills of rights in Commonwealth Africa and

1 See Nigeria (Constitution) (Amendment No. 3) Order in Council, L.N. 228 of 1959 s. 69 [the bill of rights, inserted as Sixth Schedule to Nigeria (Constitution) Order in Council, 1954]. Throughout British colonial rule in Nigeria, constitution-making/ amendment was unqualifiedly reserved to the Crown, notwithstanding the emergence of a representative legislature after 1951. See B.O. Nwabueze, A Constitutional History of Nigeria (Essex: Longman, 1982) at 33. Cf. Colonial Laws Validity Act 1865 28 & 29 Vict., c. 63 (U.K.), s. 5. But see M. Wright, ed., British Colonial Constitutions (Oxford: Clarendon Press, 1952) at 36. 2 See Report by the Resumed Nigeria Constitutional Conference Cmnd. 569 (1958) at 3-9. However, proposal for the bill of rights was not an independent recommendation of the Conference. The Colonial Office was the silent source. See A.W.B. Simpson, Human Rights and the End of the Empire: Britain and the Genesis of the European Convention (New York: Oxford University Press, 2001) at 867-69. The fundamental rights provisions were constitutionalized in advance of the Independence Constitution of 1960 in order to bring them into operation in time for the Federal General Elections of 1959. See S.A. de Smith, The New Commonwealth and its Constitutions (London: Stevens, 1964) at 178, and Simpson, ibid, at 870. The Secretary of State for Colonies had specifically undertaken at the Conference that early effect would be given to agreements reached at the Conference concerning fundamental rights and the appellate jurisdiction of the Federal Supreme Court. See Report, ibid, at para. 19. The development and normative structure of the bill of rights will be discussed fully in Chapter 2. 3 The only particularly instructive antecedent for our purpose is the 'Declaration of Fundamental Rights' in Chap. II of the Transitional Constitution of the Sudan of 19 Dec. 1955. See Simpson ibid., at 847-50. See S.A. Hussein, "Sudan: In the Shadows of Civil War and Politicization" in A.A. An-Na'im, ed., Human Rights under African Constitutions: Realizing the Promise for Ourselves (Philadelphia: University of Pennsylvania Press, 2003) 342 at 345. The other two are the old Liberian Constitution of 26 July 1847 (which was in force until 1980), ss. 1-20; and the Ethiopian imperial Constitution of 4 November 1955, Art. 1. For the texts, see A.J. Peaslee, Constitution of Nations rev. 3rd ed. Vol. 1 (Hague: Martinus Nijhoff, 1965) at 170, 422 respectively. elsewhere explains the extraordinary significance of the Nigerian Bill of Rights. By

1959, there were only three extant constitutional bills of rights, two of them autochthonous, in the whole of the Commonwealth.5 Remarkably, within only a few

fi 7 • years thereafter, Ghana and Tanzania were the only independent states in

Commonwealth Africa without a constitutional bill of rights. In every case, the constitutional protection of human rights was modeled very closely on the Nigerian provisions. So decisive has been the influence of the Nigerian model that in

The Nigerian model was expressly adopted almost everywhere in Commonwealth Africa. See, e.g., the Report of the Sierra Leone Constitutional Conference Cmnd. 1029 (1960) para.10; Constitution of Southern Rhodesia Cmnd. 1400, Appendix 2 (Declaration of Rights), and see further, C. Palley, The Constitutional History of Southern Rhodesia, 1888-1965 with Special Reference to Imperial Control (Oxford: Clarendon, 1966) 573; Report of the Uganda Constitutional Conference, 1961 and Text of the Agreed Draft of the New Buganda Agreement Initialled in London on 9th October 1961 Cmnd. 1523 (1961) para. 167; Report of the Kenya Constitutional Conference Cmnd. 1700 (1962), and see also Y.P. Ghai & J.P.W.B. McAuslan, Public Law and Political Change in Kenya: A Study of the Legal Framework of Government from Colonial Times to the Present (London: Oxford Univ. Press, 1970) 413n; Report of the Basutoland Constitutional Commission Cmnd. 897 para. 146; and for Zambia, see L. Zimba, Zambian Bill of Rights: An Historical and Comparative Study of Human Rights in Commonwealth Africa (Nairobi: East Africa Publ. House, 1984) at 89. See further, chapter 2 note 1 of the present study. 5 India (1950), Pakistan (1956), and Malaysia (1957). However, since the bill of rights in the 1970 Constitution of Tonga was originally granted in 1875, it is far older than any other in the Commonwealth. See Simpson, Human Rights, supra note 2 at 14-16, J.S. Read, "Bills of Rights in 'the Third World': Some Commonwealth Experiences" (1973) 1 Verfassung und Recht in Ubersee 21 at 21-22, R. Hahn, Commonwealth Bills of Rights: Their Nature and Origin (Ph.D. Thesis, Oxford Univ., 1986) [unpublished]. Also, even before 1950 a number of Commonwealth Constitutions contained isolated provisions on human rights. See the Australian Constitution Act, ss. 51, 92, 116, 117; British North America Act 1867, ss. 93, 133 (Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5); South Africa Act 1909, ss. 136, 137. In none of these cases of course did the provisions add up to a "bill of rights." Since the India and Pakistan bills of right are autochthonous, the Malay Constitution of 1957, rather than the Nigerian, may justly be treated as the beginning of the shift in the official British policy on constitutionalizing bills of rights, and even more so as the Constitutional Commission was chaired by Lord Reid and the draft constitution was the work of Ivor Jennings. This was not just an antecedent of the Nigerian Bill of Rights; it was one of its, albeit minor, sources. For a discussion, see chapter 2 §2B. 6 See the Constitution of Ghana of 1 July 1960. For text, see Peaslee, supra note 3 at 213. This constitution discarded certain protective provisions in the Independence Constitution (Ghana (Constitution) Order in Council, S.I. 1957 No. 277) prohibiting racial discrimination and protecting the freedom of conscience and religion and property. However, in 1969, a new Ghanaian Constitution with a bill of rights was established. 7 But protection of human rights was stated in the preamble to the Constitution. See the Constitution of Tanganyinka of 9 December 1962. For text, see Peaslee supra note 3 at 860. See also the Interim Constitution of Tanzania of 11 July 1965. For text, see Peaslee, Constitutions of Nations rev. 4th ed. Vol 1 (Hague: Martinus Nijhoff, 1974) at 926. For a discussion of developments in Tanzania, see chapter 2 §3B.

46 Commonwealth Africa today, all constitutional bills of rights may be roughly classified either as neo-Nigerian, the majority, or otherwise.8

The experience of Francophone Africa was different. In the 1960s,9 unlike, as we have seen, what was the almost universal trend in Commonwealth Africa, only one-third of the independent States in Francophone Africa had a constitutional bill of rights,10

This rough but convenient typology is clarified and described more fully in chapter 2 §3A. In the initial constitutionalization of bills of rights in Commonwealth Africa in the 1960s, the reception of the Nigerian model was as follows: Botswana Const, of 30 Sept. 1966 (ss. 3-18); Gambia Const, of 24 April 1970 (ss. 13 - 28); Kenya Const, of 12 Dec. 1963 (ss. 14-28); Malawi Const, of 6 July 1964 (ss. 11- 25); Mauritius Const, of 12 March 1968 (ss. 3-17); Sierra Leone Const, of 27 April 1961 (ss. 11-24); Swaziland Const, of 6 Sept., 1968 (ss. 3 - 16); Uganda Const, of 2 October 1962 (ss. 17- 32); the Zambia Const, of 24 October 1964 (ss. 13 -28), and Lesotho Const, of 1966. Subsequent constitutional revisions have mildly to radically altered the neo-Nigerian character in a few cases. The most drastic changes have occurred in Uganda (Const. (1995) c. 4, ss. 20-50) and Malawi. The protective provisions of the Malawi Constitution were soon expunged by the Constitution of 6 July 1966. Instead, a lone s. 2 of the new constitution purported to guarantee certain rights. In other cases, e.g. Seychelles, the changes are minimal. Despite these developments, neo-Nigerian bills of right are extant in almost ten countries in Africa today: Botswana Const, c. n, ss. 3-18; The Gambia Const. (1996) c. IV, ss. 17-37; Kenya Const. (1969) c. V, ss. 70-84; Lesotho Const. (1993) c. II, ss. 4-22; Mauritius Const, c. II, ss. 3-18; Seychelles Const. (1993) c. Ill, ss. 15- 48; Sierra Leone Const. (1991) c. HI, ss. 15-28; Zambia Const. (1991) pt. HI, ss. 11-28; Zimbabwe Const (1979) c III, ss. 11-24. Of the non neo-Nigerian bills of rights in Commonwealth Africa today, some, e.g. Namibia (Const. (1990) c. 3, ss. 5-25), and Ghana (Const (1992) c. 5, ss.12-33) closely resemble the Nigerian model because of a common connection with the text of the European Convention. The new Tanzanian constitutional Bill of Rights and Duties is sui generis. 9 This is significant because by 1960, the year Nigeria became an independent State, France practically completed the decolonization of her African territories (Djibouti and the Comoros excepted). In that year alone, all but one of the fifteen French colonies and Trust Territories in sub Saharan Africa were granted full statehood: Cameroon; Togoland (Togo); Senegal; the Sudanese Republic (Mali); the Malagasy Republic (Madagascar); Dahomey (Benin); Niger; Upper Volta (Burkina Faso); Cote D'lvoire; Chad; Central African Republic; the Republic of Congo; Gabon; and Mauritania. The lone exception, Guinea actually preceded the others when it opted for independence in the 1958 referendum instead of autonomy within the French community under the French Constitution of 1958. By the following year, each of these other countries, except Cameroon, had adopted a republican Constitution, which in many cases were to be superseded the following year by independence constitutions. In Belgian-colonized Francophone Africa, the Congo (now the Democratic Republic of Congo), Burundi, and Rwanda were decolonised contemporaneously (1960-62). Outside Francophone and Commonwealth Africa decolonisation proceeded far more slowly. Except for the independence of Equatorial Guinea almost at the close of the 1960s, Spain and, even more so, Portugal continued to maintain territorial claims in Africa (Western Sahara, Guinea- Bissau, Mozambique, Cape Verde, Sao Tome and Principe, and Angola) until the mid 1970s. 10 Republic of the Congo (Brazzaville) (Constitution of 8 December 1963, arts. 5-16); Dahomey (now the Republic of Benin) (Constitution of 11 January 1964, arts. 7-14); Gabon (Constitution of 21 February 1961, Art. 1); Republic of Guinea (Constitution of 10 Nov. 1958, arts. 29-48); Senegal (Constitution of 3 March 1963, arts. 6-20); and Togo (Constitution of 5 May 1963, arts. 5-19). (No account is taken here of Belgian Francophone states.) See F. Moderne, "Human Rights and Postcolonial Constitutions in Sub-Saharan Africa" in L. Henkin & A.J. Rosenthal, eds., Constitutionalism and Rights:

47 although in almost every one of the remainder, general or specific commitments to protect human rights11 were included in the constitutional preamble. In some cases, a

specific guarantee of equality and personal liberty was included in the main body of the constitutional text as well.

I. NIGERIA

Given the size of its bar and judiciary Nigeria was probably the most suitable place for the initial experimentation with a justiciable bill of rights in Commonwealth

Africa. Unlike elsewhere in Africa, this judiciary was already substantially indigenized by the time of independence; and the bar, now well over 40,000 strong, is among Africa's largest.12a The Federal Republic of Nigeria lies on the west coast of Africa, at the eastern end of the Gulf of Guinea between the 4th and the 14th parallels (North). Roughly the same land mass as British Columbia, Nigeria is a federation, comprising currently thirty- six states and a federal capital territory. It is one of the ten most populous countries in the

The Influence of the United States Constitution Abroad (New York: Columbia University Press, 1990) 315 at 335-38. 11 Cameroon (1961); Central African Republic (1959); Chad (1962) (although here the preamble was specifically made an integral part of the Constitution); Ivory Coast (1960); Republic of Madagascar (1959); Mali (1960); Mauritania (1961); Niger (1960); and Upper Volta (now Burkina Faso) (1960). 12 Art. 66 of the 1958 French Constitution (guarantee of personal liberty) was universally adopted in Francophone African constitutions. The Constitutions of Ivory Coast and Mauritania specifically guaranteed in addition equality. The absence of a formal bill of rights in most Francophone Africa was of course a limitation arising from closely modelling the French Constitution, which does not include one. Rather, its preamble proclaims adherence to the Declaration of the Rights of Man as "reaffirmed and complemented by the Preamble to the 1946 Constitution." Louis Henkin has remarked, "The Declaration of Rights was occasionally invoked in rhetoric, but, after the short-lived Constitutions of 1791 and 1793, it was relegated to a pantheon; it did not acquire a living place in the life of France and it did not become law." See L. Henkin, "Revolutions and Constitutions" (1989) 49 La. L. Rev. 1023 at 1031. 12a Tanzania, for example, wisely resisted British pressure to include a bill of rights in its independence constitution partly because of well-founded fear that "it would be used by the judiciary, which at that time was mainly white, to frustrate the government through declaring most of its actions unconstitutional." See CM. Peter, Human Rights in Tanzania: Selected Cases and Materials (Koln: Koppe, 1997) at 2.

48 world, with a population of almost 127 million (2001),13 or roughly a fifth of the entire population of sub Saharan Africa.

The founding of Nigeria is the outcome of its evolution as a dependency of the

United Kingdom. It is not necessary to narrate the entire development. For our immediate purpose, we shall look no earlier than the first day of January 1900,14 when the British

Crown, by order-in-council, assumed jurisdiction generally for "the peace, order and good government" of Southern and Northern Nigeria.15 This was also the first time that the name "Nigeria" was formally used to identify these territories,16 which were,

2001 estimate. Online: Population Reference Bureau (date accessed: 9 April 2002). 14 Although British activities in the area now known as Nigeria date as far back as the 15th or 16th centuries, colonial history formally begins with the cession of the coastal city of Lagos to the British Crown in 1861. For the formal British proclamation of occupation of Lagos, see E. Hertslet, The Map of Africa by Treaty (London: Frank Cass, 1967) 3rd ed. Vol. 1 at 95. The extension of colonial authority to the rest of Nigeria was primarily through the agency of the Royal Niger Company, a trading company chartered in July 1886, which negotiated a large number of treaties with indigenous rulers in favour of the British Crown. It is because of this intense treaty procurement exercise that the company's founder, George Goldie is sometimes referred to as the architect of modern Nigeria. See Burn, infra note 15 at 157-70. By December 1899 when the charter of the company was revoked (see Hertslet, ibid, at 156), the situation was as follows: only the Colony of Lagos and the adjacent protectorate of Yoruba states actually came under the direct control of the Colonial Office. To the east of this, the lower Niger and the remainder of what is now Southern Nigeria, organized as the Niger Coast Protectorate since 1893, was placed under a consul-general, who reported to the Foreign Office. Every other part of Nigeria was administered by the Company subject to the supervision of the Foreign Office. By 1 January 1900, these territories were reconstituted Northern and Southern Nigeria respectively, and placed directly under the jurisdiction of the Crown by order in council of 27th and 28th December 1899 respectively. See Hertslet, ibid, at 119-22. The was subsequently merged with southern Nigeria. For a detailed account of the evolution of Northern Nigeria, see C. Orr, The Making of Northern Nigeria (London: Frank Cass and Company, 1965). For Southern Nigeria, see J.C. Anene, Southern Nigeria in Transition, 1885-1906 (London: Cambridge, 1966); A.N. Cook, British Enterprise in Nigeria (London: Frank Cass, 1964) at 48-78. Even after 1900, Lagos continued to be classified officially as a colony whereas the remainder of the country had the status of "protectorate." As a practical matter, the distinction was of no great moment. See Nwabueze, supra note 1 at 16-19. For a general critique of these legal categories, see H.F. Morris, "Protection or Annexation? Some Constitutional Anomalies of Colonial Rule" in H.F. Morris & J. Read, Indirect Rule and the Search for Justice: Essays in East African Legal History (Oxford: Clarendon Press: 1972) 42. 15 See A. Burns, History of Nigeria 8th ed. (London: George Allen & Unwin) chs. XVIII, XIX. 16 Actually, the earliest official use of the name "Nigeria" was in the course of the House of Commons debate on the Royal Niger Company Bill in July 1899. See further, C.K. Meek, "The Niger and the Classics: the History of a Name" (1960) 1 J. Afr Hist. 1-17; A.H.M. Kirk-Greene, "Who Coined the Name 'Nigeria"?" West Africa, 22 Dec 1956 at 1035.

49 however, separately administered until the Amalgamation of 1914. Hence, this is the commonly preferred date of the establishment of the Nigerian State.18

Just under a half century later, British colonial rule of Nigeria ended.1 The

Independence Constitution (1960) adopted the Westminster parliamentary regime, with continuing allegiance to the British Crown. In 1963, a republican constitution was introduced that severed this linkage by establishing a largely ceremonial office of president, as head of state, in place of the British Queen, within a framework of a

Westminster . Within three years of this development, however, the constitutional rule of the "First Republic" was terminated by military coup d'etat, which in part precipitated a bloody civil war and instituted a prolonged military dictatorship.

The re-establishment of constitutional rule in 1979 under an American-type presidential constitution ("Second Republic") was again terminated, after barely four years, by military coup d'etat. This ushered in a sixteen-year military dictatorship. Constitutional rule has been re-established since 1999 under a new presidential constitution.

17 See Report by Sir F.D. Lugard on the Amalgamation of Northern and Southern Nigeria, and Administration, 1912-1919 Cmd. 468 (1920). See also Bums, supra note 15, and Cook, supra note 14 at 190-211. Earlier, in 1898, the British government had set up a committee headed by the secretary of state for colonies (Earl Selboune) to consider and report on the future administration of the Nigerian territories. The Committee recommended that sometime in the future it would be desirable that these territories be brought under a unified administration headed by a governor-general. But it felt that the proposed reform was inappropriate for immediate implementation. Cf. G.N. Uzoigwe, "The Niger Committee of 1898: Lord Selboune's Report" (1968) 4 J. Hist. Soc. Nigeria 467. For a brief discussion, see I.M. Okonjo, British Administration in Nigeria 1900-1950: A Nigerian View (New York: NOK Publishers, 1974) at 18-21. The rationale of British policy towards Nigeria in the period prior to and after the Amalgamation is explained in Lord Lugard, The Dual Mandate in Tropical Africa (London: Frank Cass & Co, 1965). For a critique, see I.F. Nicolson, The Administration of Nigeria 1900-1960: Men, Method, and Myths (Oxford: Clarendon Press, 1969) c.l. 18 "With the amalgamation, the work of state-building in Nigeria by the British may be said to have been completed, so that the year 1914 marks a great dividing line in our history." See Kenneth Dike, 100 Years of British Rule in Nigeria (1956) at 32, quoted in A.H.M. Kirk-Greene, Lugard and the Amalgamation of Nigeria: A Documentary Record (London: Frank Cass & Co., 1968) at 1. 19 See Nigeria Independence Act 1960 8 & 9 Eliz. 2, c.65 (U.K.), § 1.

50 In the 1950s, constitutional conferences preparatory to the termination of

7(1 71 colonialism introduced federalism, judicial reforms, including the establishment of the

Supreme Court, and finally, the bill of rights. The Supreme Court is the highest court. A

High Court, intended as an equivalent of the English High Court, is established for each state of the federation. There is also a Federal High Court. In 1976, an intermediate Court of Appeal was interposed between the Supreme Court and the High Courts. Until constitutional reforms in 1963, the Supreme Court was itself an intermediate court of appeal below the Privy Council. The evolution of the judicial system and, in particular, the Supreme Court, is undertaken in section I of chapter 3.

The Independence Constitution essentially reproduced the original provisions of the 1959 Bill of Rights (Sixth Schedule to the 1954 Constitution). Although, as we just indicated, there have been a number of other constitutions since, the substance and much of the structure of the original provisions of the Bill of Rights have been preserved in each of them.22 The development and normative structure of the Bill of Rights are examined in next chapter.

See E. Awa, Federal Government in Nigeria (Berkeley: University of California Press, 1964); O.I. Odumosu, The Nigerian Constitution: History and Development (London: Sweet & Maxwell, 1963); O. Arikpo, The Development of Modern Nigeria (Harmondsworth: Penguin Books, 1967) c. 5 & 6. 21 This was primarily because of the devolution of judicial powers occasioned by the introduction of federalism. See O. Adewoye, The Judicial System in Southern Nigeria 1854-1954: Law and Justice in a Dependency (London: Longman, 1977) c. 7; T.O. Elias, The Nigerian Legal System 2nd ed. (London: Routledge & Kegan Paul, 1963) c. XI; B.O. Nwabueze, The Machinery of Justice in Nigeria (London: Butterworths, 1963) c. 5. 22 Independence Const, c. Ill, ss. 17-31; Republican Const. (1963), c. in, ss. 18-32; Const, of 1979, c. IV, ss. 30-42; Const, of 1989, c. IV, ss. 32-44; Draft Const, of 1995, c. IV, ss. 33-49; and Const, of 1999, c. IV, ss. 33-46.

51 II. BILLS OF RIGHTS AND HUMAN RIGHTS DECISION­ MAKING IN AFRICA Almost contemporaneously with its constitutionalization in Nigeria, Stanley de

Smith predicted that bills of rights would not have any major political significance in the

new States of the Commonwealth, and that it was unlikely that a government that was

acutely sensitive to criticism would quietly acquiesce in judicial decisions that were

adverse to its own interests.23 That prophesy could not have been more accurate. In

Nigeria, and until lately, everywhere else in sub Saharan Africa, the Bill of Rights has

had no measurable impact on public policy. The protective provisions are under litigated,

and the experience of judicial decision-making is not encouraging. The courts have

generally been reticent in public policy making.

Human rights decision-making from the very beginning has been structured by

formalism. The courts have seemingly been anxious to read down the

23 See de Smith, New Commonwealth, supra note 2 at 212. But James Read has also correctly observed, In most of these countries Bills of Rights have proved to be durable elements, retained even through periods of political turbulence including military government, and were included in successive new constitutions. While enforceable by the courts they have not provoked tides of litigation, although there have been some judgements of great significance, and while ineffective to prevent the deliberate abuse of power by civilian or military rulers, they may well have deterred, obstructed or at least served to expose the gradual erosion of human rights. See J.S. Read, "Human Rights in Tanzania" in C. Legum & G. Mmari, Mwalimu: The Influence ofNyerere (London: James Currey, 1995) 125 at 129.

52 protective clauses wherever semantic or syntactic possibilities permitted, and sometimes

even where not. As we shall see shortly, the explanation hitherto of formalistic24 judicial

practice in Nigeria, and elsewhere in Commonwealth Africa, was that judicial attitudes

"Formalism," regrettably, is arotean term, which itself is highly problematic. Formalism and rule- scepticism, Hart reminded us, "are the Scylla and Charybdis of juristic theory; they are great exaggerations, salutary where they correct each other, and the truth lies between them." See H.L.A. Hart, The Concept of Law 2nd ed. (Oxford: Clarendon Press, 1994) at 147. It is therefore necessary to clarify our characterization of any particular decision or judicial practice as formalistic. In this study, more often than otherwise, the word will be used for nothing more than convenient shorthand for excessive legalism. (But this becomes problematic because, as Schauer has argued, a perfectly neutral usage is also logically possible. "At the heart of the word 'formalism,' in many of its numerous uses, lies the concept of decisionmaking according to rule. Formalism is the way in which rules achieve their 'ruleness' precisely by doing what is supposed to be the failing of formalism: screening off from a decisionmaker factors that a sensitive decisionmaker would otherwise take into account. Moreover, it appears that the screening takes place largely through the force of the language in which rules are written. . . . [IJnsofar as formalism is frequently condemned as excessive reliance on the language of a rule, it is the very idea of decisionmaking by rule that is being condemned, either as a description of how decisionmaking can take place or as a prescription for how decisionmaking should take place." See F. Schauer, "Formalism" (1988) 97 Yale LJ. 509 at 510 [emphasis original].) The truth, however, is that, what is actually condemned is usually excessive formalism. The primary objection to excessive legalism, to use the alternate term, lies in the justification of decisions, or the want of it, such as when the purpose of a norm is not factored into decision-making. "The idea of treating law as a self-contained system of norms that is 'there,' identifiable without any reference to the content, aim, and development of the rules that compose it, is the very essence of formalism, for formalism does not just involve treating law mechanically as a matter of logical deductions from given premises. It consists rather of treating law as an isolated block of concepts that have no relevant characteristics or functions apart from their possible validity or invalidity within a hypothetical system." See J.N. Shklar, Legalism: Law, Morals, and Political Trials (Cambridge, Mass.: Harvard University Press, 1964) at 33-34. A detailed description of formalistic decision-making in the Supreme Court of Nigeria is provided in chapter 5 §1, infra. However, "formalism" is not an unavoidable expression, and the literature is replete with synonyms. We have used formalism interchangeably with "Formal Style." In legal literature, the usages of the term "Formal Style" are sometimes confusing, but it essentially denotes two separate, albeit related, appearances. In his classic description, Karl Llewellyn was careful to distinguish the two faces of the Formal Style, viz., as ideology and as mere opinion-writing form. The distinction is important. In contrast to the Grand Style, Llewellyn was careful to stress that by the Formal Style, "I am referring to a way of thought and work, not to a way of writing" (emphasis added), and only a few lines later, "For let me repeat: 'style' refers in this connection not to literary quality or tone, but to the manner of doing the job." See K. Llewellyn, The Common Law Tradition: Deciding Appeals (Boston: Little Brown & Co, 1960) at 36, 37. In the former sense, it represented a "manner of deciding" (p. 41) grounded on an orientation that policy is for the legislature, not for the court. On the other hand, as opinion-writing form, Formal Style "opinions run in deductive form with an air or expression of single-line inevitability" (p. 38). In this sense therefore, the Formal Style, as an opinion-writing format, may persist even after the ideology itself has waned. Thus, Llewellyn noted that although "the Supreme Court of Massachusetts were in 1939 still writing largely in the strict Formal Style, there can be no doubt that their process of actual deciding has already materially departed therefrom" (p. 41). For a different perspective on formalist opinion-writing style, see R.A. Posner, "Judges' Writing Styles (And Do They Matter?)" (1995) 62 U. Chi. L. Rev. 1421 at 1432-36.

53 were firmly structured by the English tradition of positivist decision-making. This

explanation is inadequate because what is often ignored is that the decision-making

practice of African courts in public law adjudication is not neutral. Rather, there is

usually a selective deployment of formalist justifications to vindicate desired outcomes.

What the African experience discloses is not simply that judges lack, or are unfamiliar

with, analytical tools of result-oriented ("Grand Style") reasoning. Instead, there is at the

core a problem of the judiciary's low store of political capital. As a result of this, judicial

intervention in public policy-making, especially where it involves directly confronting

the government, is characteristically hesitant. In short, judicial timidity.

This study therefore intends to demonstrate this alternative explanation. The

argument may be outlined as follows. The level of institutionalization of the judiciary in

Nigeria and in much of the region leaves the courts with insufficient political capital for

activist human rights policy-making. Rather .than a neutral mode of decision-making,

Formal Style decision-making has actually for the most part been a conscious judicial

strategy in an environment where active judicial intervention in public policy could easily

result in a confrontation with the political organs of State and thereby further weaken the judiciary. Outcomes traditionally blamed on Formal Style decision-making therefore

have deeper roots. Another dimension of this explanation connects judicial reticence in policy-making with the limited institutional capacity of courts and, in particular, a low

level of judicial mobilization and the structure of the decision-making system. At the

same time, it challenges certain assumptions about the facilitative conditions of the judicialization of public policy-making.

54 A. The Right to a Judicial Remedy in African Bills of Rights

"The Habeas Corpus Acts declare no principle and define no rights," noted Dicey,

"but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty."25 Beneath the notorious historic English aversion for a formal bill of rights is a strong distrust of any declaration on parchment without judicial remedies.26

Dicey himself was at pains to demonstrate this with respect to the declarations of rights in

European constitutions of his day.

[T]he question whether the right to personal freedom or the right to worship is likely to be secure does depend a good deal upon the answer to the inquiry whether the persons who consciously or unconsciously build up the constitution of their country begin with definitions or declarations of rights, or with the contrivance of remedies by which rights may be enforced or secured. Now, most foreign constitution-makers have begun with declarations of rights. For this they have often been in nowise to blame.... But any knowledge of history suffices to show that foreign constitutionalists have, while occupied in defining rights, given insufficient attention to the absolute necessity for the provision of adequate remedies by which the rights they proclaimed may be enforced.27

Unlike the pre-existing and contemporaneous African Bills of Rights, a distinctive feature of the Nigerian model is its juridical character, arising from the specific

2 A.V. Dicey, Introduction to the Study of the Law of the Constitution 10th ed. (London: Macmillan, 1959) at 199. 26 This English attitude was of course more complex than this. But even from the earliest period of this tradition, we notice, for example, that Bentham's destructive criticism of the French Declaration of the Rights of Man and Citizen was partly because of the absence of recourse for violation of the "natural and imprescriptible rights," other than, as Bentham perceived it, a recourse to insurrection. For a discussion, see H.A. Bedau, '"Anarchical Fallacies: 'Bentham's Attack on Human Rights" (2000) 22 Hum. Rts. Q. 261 at 267. Although English lawyers were sometimes almost as equally concerned whether courts were a proper forum for evaluating public policy, this was clearly less problematic. For instance, Ivor Jennings, although no admirer of constitutional bills of rights, worried that the inclusion of such constitutional guarantees, "may compel the use of vague phrases like 'reasonable' and 'in the public interest.' The Courts of Law are not really competent to decide whether legislation is 'reasonable' and 'in the public interest,' but if there is

55 entrenchment of judicial recourse. This entitles any person who alleges that any of the

protective clauses has been contravened, or is likely to be contravened, in relation to him

to apply to the High Court for redress,29 with a right of appeal to the Supreme Court.30 In

contrast, in francophone Africa, the universal borrowing of Article 66 of the French

Constitution of 1958 ('the judiciary [is the] guardian of individual liberty")31 is about the

only thing close to a constitutional 'right' of judicial recourse. Compared to judicial recourse under the Nigerian model, this is a weak regime indeed, since in these countries the judiciary typically does not have jurisdiction in constitutional matters.32

Given the conflicting approaches in African bills of rights, it is understandable that the declaration of the African Conference on the Rule of Law 1961 that fundamental human rights should be entrenched in the constitutions of all countries did not explicitly

no alternative they may be called upon to do so." See I. Jennings, The Approach to Self-Government (Cambridge: Cambridge University Press, 1956) at 110. 27 Dicey, supra note 25 at 198. 28 Cf. the "judicial guarantees" in the Transitional Constitution of the Sudan (1955) and the Constitution of Somalia of 1 July 1960, Tit. Ill arts. 38-40. The former is the source of the recourse provision in the Nigerian model. See Simpson, supra note 2 at 867, 869. For text of the latter, see Peaslee supra note 3 at 776. 29 This final version, in Section 31 of the Independence Constitution (1960), was a modification of the formulation that appears in Cmnd 569, supra note 2 and what was constitutionalized subsequently by Section 245 of L.N. 228 of 1958. 30 Until 1963, further appeal on constitutional interpretation lay, of right, to the Privy Council. 31 See Algeria Const, art 139; Angola Const, art.73; Benin Const. (1990) art. 114; Burkina Faso Const. (1991) art. 125; Burundi Const. (1992) art. 39; Central Afr. Rep. Const. (1994) art. 78; Chad Const. (1996) art. 148; Congo Const. (1992) art. 137; Cote D'lvoire Const. (1990) art. 62; Djibouti Const. (1992) art. 71; Mali Const. (1992) art. 81; Mauritania Const. (1991) art 91; Mozambique Const. (1990) art. 161; Rwanda Const. (1991) art. 33 32 See Moderne, "Human Rights and Postcolonial Constitutions" supra note 10 at 336-38. The preambular bill of rights in Cameroon's 1996 Constitution, for example, is enforceable by the Constitutional Council (modelled on the French institution), not the judiciary. See Cameroon Const, art. 46. For a critique, see CM. Fombad, "The New Cameroonian Constitutional Council in a Comparative Perspective: Progress or Retrogression?" (1998) 42 J. Afr. L. 172. However, in the new constitutions of the Republic of Benin (1990), Burundi (1992), Cape Verde (1992), Central African Republic (1994), the Congo (1992), and Gabon (1991), in theory at least, a more or less satisfactory result is attained by granting individuals direct access to the constitutional council or chamber, the organ seised with constitutional matters. Also, the Niger Constitution (1992), which vest constitutional jurisdiction in the Supreme Court

56 mention the inclusion of a specific provision on judicial recourse. But in India, where a

similar constitutional provision on judicial recourse34 was earlier adopted, it was, in the

opinion of Dr. B.R. Ambedkar, the chair of the Constituent Assembly's Drafting

Committee, "the very soul of the Constitution and the heart of it." Today, a specific provision for judicial recourse is an integral part of every constitutional bill of rights in

Commonwealth Africa, including those that are not specifically modelled on Nigeria's.

However, in Malawi36 and Namibia,37 filing a complaint with the ombudsman (or the

Human Rights Commission) is an option.

A number of improvements on the recourse formulation in the Nigerian model have emerged in African bills of rights. For example, instead of a strict standing requirement in the Nigerian model (discussed below, chapter 4 §3C), Uganda and South

Africa have practically dispensed with any requirement of interest. Apart from a person

(art. 98), specifically states that the rights and duties guaranteed by the Constitution shall be binding (art. 35). 33 The Law of Lagos, para. 3. See Int'l Comm. Jur., African Conference on the Rule of Law: A Report of the Proceedings of the Conference (Geneva: ICJ, 1961) at 11. The full text is also reproduced in Int'l Comm. Jur., The Rule of Law and Human Rights: Principles and Definitions as Elaborated at the Congresses and Conferences held under the auspices of the International Commission of Jurists, 1955- 1966 (Geneva: ICJ, 1966) at 67. 34 Article 32: (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the [fundamental] rights... is guaranteed. (2) The Supreme Court shall have the power to issue directions or orders or writs, including the writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate for the enforcement of any of the rights conferred by this Part 35 "If I was asked to name any particular article of the Constitution as the most important - an article without which this Constitution would be a nullity -1 would not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it." Quoted in D.D. Basu, Introduction to the Constitution of India, 15th ed. (New Delhi: Prentice-Hall of India, 1993) 122. "The result [of Article 32]," noted Sir Ivor Jennings, "may be that fundamental liberties have been converted into fundamental rights against the State, and occasionally into fundamental rights in rem." See I. Jennings, Some Characteristics of the Indian Constitution (Madras: Oxford University Press, 1953) 40. 36 Constitution of Malawi of 16 May 1994, s. 46(2)(b). 37 Namibia Const., art. 25(2).

57 who alleges the infringement of his fundamental right, the Ugandan provisions also

permit "any person or organization [to] bring an action against the violation of another

person's or group's human rights."38

In summary, in Commonwealth African constitutions (including Nigeria's), primary jurisdiction in enforcement of the Bill of Rights is vested in the superior court of

first instance, called, as in Nigeria, "High Court" in Botswana, Ghana,40 Kenya,41

Lesotho,42 Tanzania,43 and Zambia.44 An equivalent court, although going by a different name, is vested with that jurisdiction in The Gambia,45 Mauritius,46 and Seychelles.47 The

same is more or less also true of Malawi,48 Namibia,49 Uganda,50 and South Africa,51

38 Constitution of Uganda of 22 Sept. 1995, art. 50(2). See also the Constitution of the Republic of South Africa Act 108 of 1996, s. 38: Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are - (a) anyone acting in their own interest; (b) anyone acting on behalf of another person who cannot act in their own name; (c) anyone acting as a member of, or in the interest of, a group or class of persons; (d) anyone acting in the public interest; and (e) an association acting in the interest of its members. 39 Botswana Const, s. 18. 40 Ghana Const, of 28 April 1992, s. 33. 41 Kenya Const, s. 84. 42 Lesotho Const, of 25 March 1993, § 22. 43 Tanzania Const., art. 30(3). However, to properly exercise this jurisdiction, a panel of three High Court judges is required to hear every petition, although a single judge may determine whether an application is frivolous, vexatious or otherwise unfit to be heard. See Basic Rights and Duties Enforcement Act, No 33 of 1994, s. 10. This requirement creates a number of practical problems. For a critique, see Peter, Human Rights in Tanzania, supra note 12a at 764-66. 44 Zambia Const, of 3 0 August 1991,art.28(l). 45 The Gambia Const, s. 28. 46 Mauritius Const, s. 17. 47 Seychelles Const, of 18 June 1993, art. 46 (Constitutional Court). 48 Supra note 34, s. 46(2)(a) 49 Supra note 35. 50 Supra note 36, art. 50(1). The appropriate court is the Court of Appeal, sitting as the Constitutional Court, since it has jurisdiction over constitutional interpretation as well any question whether any act or

58 where the more flexible terminology, "a (any) competent court" is applied. There is a

right of appeal to higher courts in every case except Kenya, where the High Court has the

final word in constitutional matters, 52 and in Sierra Leone,53 as well as Zimbabwe,54

where jurisdiction is vested exclusively in the Supreme Court, the final court.

In conception, therefore, the administration of the neo-Nigerian, and the other

(Commonwealth) African, bills of right was supposed to be highly judicialized. Partly for this reason, suggested Steven Pfeiffer, "the national courts in East Africa were

structurally positioned to occupy a position of substantial political significance at the apex of national government."55 Aside from the entrenchment of judicial recourse, their

omission of any person or authority is inconsistent with or in contravention of a provision of the Constitution. See ibid., art. 137 51 Supra note 36. 52 Although a Court of Appeal (comprising the Chief Justice and not less than two other judges of appeal) is established by the Constitution. See Kenya Const, c. IV, pt. 2, s. 64. This apparent anomaly of excluding constitutional review from the jurisdiction of the Court of Appeal is a carry over of a similar restriction of the jurisdiction of its predecessor , the, now defunct, supra-national Court of Appeal for East Africa, in constitutional matters, including specifically the provisions protecting human rights. This limitation was commonly imposed by the domestic law of each of the three countries under the jurisdiction of the Court: Kenya, Tanzania, and Uganda. For a background to this development, see L.L. Kato, "The Court of Appeal for East Africa: From a Colonial Court to an International Court" (1971) 7 East Afr. L.J. 1; J.W. Katende & G.W. Kanyeihamba, "Legalism and Politics in East Africa: The Dilemma of the Court of Appeal for East Africa" (1973) 43 Transition 43. But there is today no extant provision of the Kenya Constitution either explicitly prohibiting or vesting jurisdiction in bill of rights-related appeals in the present Court of Appeal. Nonetheless, the Court itself has decided that its jurisdiction is limited to that specifically conferred by Section 64(1) of the Constitution, and there is therefore no statutory jurisdiction over appeals from the High Court in matters arising under section 84(2)(a). See Anarita Njeru v. Republic (No. 2) [1979] Kenya LR 102. For a brief background, see PJ. Kabudi, Human Rights Jurisprudence in East Africa: A Comparative Study of Fundamental Rights and Freedoms of the Individual in Tanzania, Kenya and Uganda (Baden-Baden: Nomos Verlagsgesellschaft,. 1995) at 320. A leading Kenya constitutional scholar has justifiably remarked that this decision "produces the strange result that under the procedure envisaged by the Constitution as the most usual and normal for the enforcement of rights (as indeed is also the practice), the highest court in the land is prevented from deciding the constitutional issue." See Ghai, infra note 56 at 221. 53 Sierra Leone Const, of 1 Oct. 1991, s. 28. 54 Zimbabwe Const., s. 24 55 S.B. Pfeiffer, "The Role of the Judiciary in the Constitutional Systems of East Africa" (1978) 16 J. Mod. Afr. Studies 33 at 35, — "Notes on the Role of the Judiciary in the Constitutional Systems of East Africa since Independence" (1978) 10 Case W. Res. J. Int'l. L. 11 at 15. Cf. J. Sarkin, "The Political Role of the South African Constitutional Court" (1997) 114 SALJ 134. It should be noted that to pre-empt

59 length and complexity would ordinarily indicate, as Yash Ghai has observed, that lawyers

were expected to be the first and last line of defence.56 Yet the report sheet shows that in

spite of the entrenchment of judicial recourse provisions the judicial role has almost

everywhere been minimal.

Courts have provided no protection against torture and other inhuman and degrading treatment. They have done nothing to prevent massive abuses of the legal process - long remands in custody of accused persons against whom charges are frequently dropped, long detentions in custody without being charged or brought to court, the free use of 'confessions' so that important legal issues are not litigated, etc. They have shown little understanding of the nature or value of human rights, of the jurisprudence on these matters built up carefully and deliberately over the years by international, regional and national courts. They have paid no regard to [the country's] international obligations regarding human rights. They have made no attempt to establish a proper balance between a right or freedom and restrictions on it, and have forgotten that restrictions cannot be so extensive or broad that they extinguish the right or freedom. In many cases they have accorded a higher privilege to restrictions than the substantive right to which they are attached. All this has involved them in great casuistry....57

This observation will presently be contextualized within the specific experience of

the Supreme Court of Nigeria.

B. The Supreme Court and Human Rights

The Supreme Court's initial encounter with the Nigerian bill of rights was

anything but encouraging. Indeed, this experience minimized the bill of rights as a site of

anticipated litigiousness, every country adopting the Nigerian model, except Mauritius, inserted a provision directing courts not to tolerate raising of human rights issues where in the opinion of the court the ground is frivolous or vexatious. 56 Y. Ghai, "The Kenya Bill of Rights: Theory and Practice" in P. Alston, ed., Promoting Human Rights Through Bills of Rights: Comparative Perspectives (New York: Oxford University Press, 1999) at 224 57 Ibid., at 234

60 public policy making for several years to come. By the 1960s, observers had noticed a pattern of an almost complete absence of any successful claim against the government for the violation of human rights. "The point here," noted Nwabueze, Africa's ablest constitutional scholar, "is not that every one of the decisions handed down by the

Nigerian Supreme Court between 1960 and 1963 was necessarily wrong in law, but that

to they should all have gone in favour of the government was remarkable." Why was this so?

The Court did not have the opportunity to decide any matter pertaining to the fundamental rights provisions of the Constitution until 1961. However, that year alone, it decided about a half dozen human rights cases.59 The first two cases, decided on 6 April

1961, raised the question of the constitutionality of the offence of sedition under the

Criminal Code in the light of the constitutional protection of the freedom of expression.

Under Section 24 of the Independence Constitution, (1) Every one shall be entitled to freedom of expression, including freedom to hold opinions and impart ideas and information without interference; (2) Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society - (a) in the interest of defence, public safety, public order, public morality or public health; (b) for the purpose of protecting the rights, reputations and freedoms of other persons, preventing the disclosure of information received in confidence, maintaining the authority and independence of the Courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or

B.O. Nwabueze, Judicialism in Commonwealth Africa: the Role of the Courts in Government (London: C. Hurst & Co., 1977) 242 [hereinafter Nwabueze, Judicialism]. 59 Some of these cases actually arose under the original provisions, the Sixth Schedule to the Constitution of 1954. But the appeals/ references were filed at the Supreme Court between 1960 and 1961.

61 (c) imposing obligations upon persons holding office under the Crown, members of the armed forces of the Crown or members of a police force.

The two cases were references from the High Court in the course of a criminal trial for seditious publication. In the first case, D.P.P. v Chike Obi,60 a leader of an opposition political party was prosecuted on a charge that he distributed a pamphlet entitled: "The People: Facts that You Must Know," which contained the following allegedly seditious statement:

Down with the enemies of the people, the exploiters of the weak and oppressors of the poor! ...The days of those who have enriched themselves at the expense of the poor are numbered. The common man in Nigeria can today no longer be fooled by sweet talk at election time only to be exploited and treated like dirt after the booty of office has been shared among the politicians.

The charge was brought under Section 51 (c) of the Criminal Code, which makes it punishable as sedition for anyone to print, publish, sell, offer for sale, distribute or reproduce any seditious publication. A "seditious intention" is defined by the Code as, inter alia, an intention to bring the government into hatred or contempt or excite disaffection against it. Defendant's counsel invited the Court to be guided, in the determination of the scope of the Nigerian provision, by judicial approaches to similar constitutional guarantees of the freedom of expression. Admittedly, by 1961, there were not many such constitutions in the Commonwealth. The only obvious case was India.

The Court was, however, more eager to distinguish the Indian provision.

[1961] 1SCNLR197.

62 At the same time, it was also not concerned at all with exploring the possible

scope of the freedom of expression in the Nigerian Constitution. It was instead simply

satisfied that under the extant criminal law, the publication was seditious. The more

appropriate course would have been to consider the extent to which the criminal law was

affected by the nascent constitutional protection. It would surely be remarkable if the

freedom of expression was not intended to affect the criminalization of political speech,

especially where, as in this case, it did not involve a direct incitement of violence. ' How

else are the democratic channels to be kept accessible unless the opposition can lawfully

criticize the government, however harshly? The Court was clearly not persuaded by this

consideration.

It was argued that a law is only valid if the acts prohibited are, in every case, likely to lead directly to disorder. It seems to me that this is taking too narrow a view of the provision, for it must be justifiable in a democratic society to take reasonable precautions to preserve public order, and this may involve the prohibition of acts which, if unchecked and unrestrained, might lead to disorder, even though those acts would not themselves do so directly. The Court must be the arbiter of whether or not any particular law is reasonably justifiable.62

The closing part of the foregoing passage was probably not intended to convey

any assurance that the judiciary in principle intended to hold the government to the high

standard implicated by the constitutional guarantees. Earlier in the same opinion, it also

stated that "it is right that the courts should remember that their function is to decide

61 The leading authority on the point, decided by the West African Court of Appeal (WACA) before the adoption of the Bill of Rights, was that an incitement to violence was not a necessary element of the offence. See R. v. Wallace Johnson 5 W.A.C.A. 56. This was also the Privy Council's position: see [1940] A.C. 231 (PC). 62 [1961] 1 SCNLR 197 at 207.

63 whether a restriction is reasonably justifiable in a democratic society, not to impose their

own views of what the law ought to be.63

The constitutionality of sedition, as well as the related offence of publication of

false news likely to cause fear and alarm to the public, was again raised in the other

decision announced the same day by the Court.65 As in Chike Obi, Chief Justice Ademola

also wrote the opinion for the Court. In this opinion of less than two pages, absolutely

nothing was added to the discussion of the constitutionality of sedition in Obi. But the

constitutionality of the other provision was also accepted without any attempt at even a

simple justification.

I do not think it is necessary to enter into any lengthy consideration of the question.... Suffice it to say that section 24 of the Constitution of the Federation relating to Fundamental Human Rights guaranteed nothing but ordered freedom and that the section of the Constitution cannot be used as a licence to spread false news likely to cause fear and harm to the public. In effect, section 59(1) of the Criminal Code has not been invalidated.66

63 Ibid., at 208 [emphasis added]. 64 See Criminal Code, s. 59(1) 65 Amalgamated Press (of Nigeria) Ltd & Anor. v. R. [1961] SCNLR 194. This case is problematic because although it came to the Supreme Court by way of reference of point of law, the issues referred were not specifically formulated by the High Court. See Ademola CJF, ibid, at 195. 66 Ibid at 196.

64 Table 1: Synopsis of Supreme Court Decisions in Fundamental Human Rights Cases, 1960-1966

Parties Summary of Issue(s) Raised Outcome

D.P.P. v. Obi [1961] Whether the offence of sedition Constitutionality sust­ 1 SCNLR 197. as defined in the Criminal Code ained. was incompatible with the free­ dom of expression.

Amalgamated Press v R Whether the offence of spreading [1961] 1 SCNLR 194 false news with intent to cause fear and alarm was compatible with the freedom of expression.

Olawoyin v Attorney - A claim for a declaration that cer­ Plaintiff lacks standi­ General (Northern Region) tain provisions of the Children ng- [1961] 2 SCNLR 5 and Young Persons Law were un­ constitutional (incompatibility with the freedom of private and family life, conscience, and expression).

Olawoyin v Police Reference of a point of law on the Reference incompete­ [1961] 2 SCNLR 278 scope of the guarantee of fair nt. criminal trial.

Ojeigbe v Ubani Whether holding elections on Sat­ Constitutionality sust­ [1961] 1 SCNLR 389 urdays amounts to class discrimin­ ained ation and a negation of the freedom of conscience for keepers of the Sabbath.

Doherty v Balewa Constitutionality of a statutory pro­ Provision declared [1961] 2 SCNLR 256 vision purporting to oust judicial re­ unconstitutional. view.

Merchant Bank Ltd v. Whether the revocation of a bank­ Fundamental human Federal Minister of ing licence was a violation of a rights regime held in­ Finance [1961] 2 SCNLR "civil right" within the meaning of applicable. 256 the fundamental human rights clauses.

65 Table 1 (Cont.) Parties Summary of Issue(s) Raised Outcome

Queen v Eguabor [1962] Whether a defendant denied the The constitutional ri­ 2NSCC 186. services of an interpreter in a crim­ ght to an interpreter in inal trial, in which he was represen­ criminal proceedings ted by counsel can be said not to cannot be invoked by have had a fair hearing. a defendant represent­ ed by counsel

Williams v Majekodunmi Whether the restriction on mo­ Restriction was not [1962]2NSCC228 vement imposed on the Plain­ reasonably justifiable tiff under emergency regulations was "reasonably justifiable in a democratic society."

Attorney-General (East­ Whether judicial remedy lies aga­ Executive action, su­ ern Region) v Briggs inst an act of the governor done on ch as the act of the g- [1964J3NSCC242 the recommendation of the Public overnor in pursuance Service Commission. of a constitutional o- rder, should be entitled to immunity against challenge in the courts.

Awolowo v. Sarki, Mini­ Whether the refusal by the Minister The Minister's action ster of Internal Affairs of Internal Affairs to allow the Pla- was not unconstitutio- [1966] NSCC 209. intiff s counsel, a non-Nigerian, to nal. enter the country was an infringem­ ent of the right to counsel of one's choice.

66 It is noteworthy that in practically every other constitutional challenge under the bill of rights in the 1960s, the Court equally never found it "necessary to enter into any lengthy consideration of the question."67 By the 1960s the Supreme Court had so profoundly discounted the potential of the bill of rights that it was of little or no political significance. The very purpose that had justified the introduction of the bill of rights only a few years earlier, the protection of ethnic and political minorities, hardly featured in judicial decision-making. One interesting feature of the Supreme Court's experience in

Formal Style decision-making is that the odds are stacked against the claimant in human rights cases. The natural consequence is that the legislation or official action impugned is almost inevitably sustained. "To what purpose, people were prompted to ask," noted

Nwabueze, "were civil liberties guaranteed in the Constitution if every violation of them, however flagrant-seeming, received the sanction of the courts?"

It began to look as if the courts were actively aiding the politicians in the persecution of opponents and in the perversion of the Constitution. Confidence in their ability to decide political issues impartially was consequently undermined, and the position was eventually reached where there was a general disinclination to take political complaints to them. To go to court on such matters was felt to be a vain effort; from past experience, a decision in favour of the government was considered a foregone conclusion. Moreover, the overconfident way in which the ruling politicians sometimes challenged opponents to take their complaints to court, as if to say they had been assured the courts

The attitude of the Supreme Court was presaged by a statement made extrajudicially by Mr. Justice Lionel Brett, a leading member of the Court in the 1960s, at an international conference on Nigerian federalism in August 1960. "In cases involving the Fundamental Rights," he said, "the Nigerian courts will have to consider what is 'reasonably justifiable in a democratic society,' but even here the essential word is 'justifiable,' not 'desirable,' and the role of the courts is to preserve certain standards, not dictate policy." See L. Brett, "The Role of the Judiciary in a Federal Constitution with Particular Reference to Nigeria" in L. Brett, ed., Constitutional Problems of Federalism in Nigeria (Lagos: Times Press, 1960) 12 at 22 [emphasis added].

67 would never decide against them, helped to sap public confidence in the courts still further.68

Even the most able observers, including Nwabueze, were inclined to rationalize the problematic judicial practice principally as a condition fostered by, if not the direct result of, the received tradition of British positivism. "[T]he primary reason seems to be the inherited common law attitude towards the judicial function; it is an attitude that requires literalness and analytical positivism in the interpretation of the law, enforces a narrowness of attitude towards the questions presented for decision, and discourages creative activism."69 As a result, argues Nwabueze, Commonwealth judges generally, until lately at any rate, unlike their U.S. counterparts, have missed the opportunity for judicial creativity, by failing to acknowledge the question of choice involved in the balancing of liberty against public order and the crucial judicial role implicated in the process.

A different perspective is presented by Robert Seidman. Although like the representatives of the traditional scholarship, he also insists that the legalistic Formal

Style system of justification prevents the courts from openly addressing unresolved policy issues, he argues that no satisfactory explanation of the practice is possible independently of the institutionalized processes of appellate decision-making in the

Nwabueze, supra note 58 at 242-43. 69 Ibid., at 310 (emphasis added). This explanation of the prevalence of formal style decision­ making, based on legal training or orientation, must be carefully distinguished from explanations based on the social backgrounds of judges. The latter is rare in the literature on African judiciary. A notable exception is C. Forsyth, "The Judges and Judicial Choice: Some Thoughts on the Appellate Division of the Supreme Court of South Africa since 1950" (1985) 12 J. S. Afr. Studies 102, and more generally his In Danger of their Talents: a Study of the Appellate Division of the Supreme Court of South Africa from 1950- 1980 (Cape Town: Juta, 1985). Glendon Schubert has also studied the effect of subcultural differences upon the Court's judicial policy making. See Schubert, Political Culture and Judicial Behavior— Political Culture and Judicial Elites: A Comparative Analysis (Lanham, MD: University Press of America, 1985).

68 African milieu. In order to explain the significance of Formal Style decision-making, he argues, it is necessary first to understand how the inputs, conversion processes and feedback systems of appellate courts in Africa structure choices for judges, and the way they require judges to go about deciding cases. Thus, although Formal Style justification permitted maximum play for the judges' unexpressed values and assumptions, the method of controlling inputs guaranteed that the judges would not be presented with data which might challenge those assumptions, and the system of recruiting and socializing judges ensured that they would be drawn from strata and groups who would tend to approve restrictions upon political freedoms in favour of government 'stability.'

While the observations of Professor Seidman are instructive, he did not undertake any rigorous testing of the weight of the factors identified. To what extent is the Supreme

Court of Nigeria, as an appellate decision-making system, different, for example, from the Supreme Court of India? The unwillingness of African courts to protect human rights may therefore require a further explanation. One thing is clear, however. While the dominance of a Formal Style orientation in the Nigerian Supreme Court's human rights decision-making can certainly not be ignored, nor could its impact even be arbitrarily discounted, it is not by itself an independent, self-contained explanation. It is obvious, for example, that the Nigerian experience has not simply been blind mechanical decision­ making but is essentially a process of deliberately putting the stakes in favour of the government. Otherwise, it would be hard to explain, as Nwabueze himself noted, the

70 R.B. Seidman, "Judicial Review and Fundamental Freedoms in Anglophonic Independent Africa" (1974) 35 Ohio St. LJ. 820 at 834-49, and The State, Law and Development (London: Croom Helm, 1978) at 364-74.

69 occurrence of the unlikely odds of practically all the human rights cases decided by the

Court in the first six years going in favour of the government.71 In contrast, until the

abolition of its jurisdiction, a suit against the government was more likely to succeed at

the Privy Council, its notoriously formalist tradition a notwithstanding, than in the local

Nigerian courts.

Therefore, contrary to the views hitherto canvassed, excessive legalism is actually

a factor, not the cause, of the general crisis of judicial weakness in post-colonial Africa,

and indeed, it is sometimes valuable as a strategic resource for masking judicial timidity

in public law adjudication. The Supreme Court as a decision-making system is under a

significant stress from a neo-authoritarian political environment and limited institutional

support. In spite of its age and pedigree as well as its formal autonomy, the Court

remains, in the sociological sense, weakly institutionalized. Hence it has never been able

to establish itself as an autonomous and significant player in the political process, the

formal powers endowed by the Constitution notwithstanding. The capacity of judicial

institutions in sub-Saharan Africa to press their authority has been severely hampered by

the intolerance of the government with any judicial "interference" with public policy.

This is the challenge, in the words of Nigeria's fifth chief justice, of "all persons who are

Nwabueze, supra note 58. 71a See E. McWhinney, "The Privy Council as Final Appellate Tribunal for the Overseas Empire" in Judicial Review, 4th ed. (Toronto: University of Toronto Press, 1969) 49-60. 72 It is hardly remarkable therefore that the Supreme Court is rarely mentioned in works on Nigerian government and politics. A significant exception is J.P. Mackintosh, Nigerian Government and Politics (London: Allen & Unwin, 1966), where at least, the Court is mentioned in twelve of a little over six hundred pages.

70 called upon to exercise judicial functions in a developing country, where the executive

tasting power for the first time, thinks it can wield unlimited power indefinitely."

The arrogance which results from such a mentality soon makes the executive intolerant of any person or body of persons which [sic] tries to put a constitutional limit to the scope of its power. Because of this, a judge who tries to put a limit on its excesses is sometimes referred to a saboteur or a neocolonialist or just too technical.73

A number of studies of the judiciary in post-colonial Africa have also confirmed

this. For instance, in his study of what he called the "illiberal and restrictive" practices of

judicial interpretation of the Nigerian Constitution between 1960 and 1965, Gauis

Ezejiofor highlighted the significance of this factor on judicial decision-making. The

judges, he wrote,

probably feared that an active interventionist policy of interpreting the Constitution in a liberal spirit would lead to open confrontation with the politicians and the consequent weakening of judicial authority. Consequently most of them were anxious to render decisions favourable to the government and its supporters. Indeed they behaved as if it was their duty to adopt challenged measures of the authorities as valid and to find arguments to justify them. ... One of the very few occasions in which there was a departure from the literal and strict approach to interpretation was when it was necessary to hand down a decision not inconvenient to the Federal Government and its allies.74

A. Fatayi-Williams, Faces, Cases and Places (London: Butterworths, 1983) at 100. In most new nations, writes George Gadbois, "[p]ost-independence governing elites, flushed with victory after long colonial struggles, and anxious to get on quickly with the tasks of nation-building and economic development, have usually demonstrated an intolerance of the judiciary, particularly of the judicial process, especially if the courts have attempted to exhibit authority and independence by expressing disapproval of executive and legislative actions. Often when judicial institutions attempted to do the latter, they were ignored, emasculated, relegated to a weak role in the system, or simply closed down." See G.H. Gadbois, "Supreme Court Decision making" (1974) 10 Banaras L.J. 1 at 8. 74 G. Ezeijiofor, "A Judicial Interpretation of Constitution: the Nigerian Experience During the First Republic" in A. B. Kasunmu, ed., The Supreme Court of Nigeria, 1956-1970 (Ibadan: Heinemann, 1977) 67 at. 87-88 [footnotes omitted]

71 Ojwang and Otienu-Odek have provided a similar explanation for a similar phenomenon of judicial reticence with respect to Kenya's neo-Nigerian bill of rights.

The outcome of human rights litigation in Kenya appears to turn on four primary considerations: (i) Is there a guiding principle on the subject matter that is of critical centrality to the operation of the executive arm of government? (ii) If there is such a fundamental policy, has it been given ultimate instrumental character through legislative action? (iii) Has the relevant act been done, or decision taken in a casual context, or at the behest of an individual officer acting purely on his own? (iv) Is the matter in question covered by an exhaustive body of constitutional or ordinary legal rules and principles? When the subject of official action is governed by a fundamental policy consideration, the courts are likely to accord deference to the position of the State. In that case, the courts tends to show interpretative restraint in approaching the conflicting claims made by the State and the individual respectively.... Such is still more emphatically the approach of the Kenya courts where guiding government policy has crystallized into an instrumental form through the legislative act. In such a case, the court will be reluctant to uphold the individual claim that goes against the official position. Constitutional interpretation will then appear to be built around an acceptance of such a primary position. The court appears to proceed by asking: (i) is it more important to decide in a manner that respects the known position of the other institutions of government (principally the executive)?, or (ii) is it more important to be guided by, and to uphold, the established legal doctrines, principles and rules? The first alternative generally becomes the basis of decision-making.75

75 J.B. Ojwang & J.A. Otieno-Odek, "The Judiciary in Sensitive Areas of Public Law: Emerging Approaches to Human Rights Litigation in Kenya" (1988) XXXV Netherlands Int'l L. Rev. 29 at 48-49 [emphasis in original]. See also Kabudi, Human Rights Jurisprudence, supra note 52 at 348-49. For a critical review of the same phenomenon in Uganda, see J. Oloka-Onyango, "Judicial Power and Constitutionalism in Uganda: A Historical Perspective" in M. Mamdani & J. Oloka-Onyango, eds., Uganda: Studies in Living Conditions, Popular Movements, and Constitutionalism (Vienna: Journal fur Entwicklungspolitik, 1994) 463 at 480-500, 503-11. In Tanzania, according to a leading legal scholar, ...both as matter of law and practice the powers of the Executive cannot be or are rarely challenged in courts or if challenged stand little chance of success. This is due to a combination of factors, such as the widely-worded law which leaves little room for judicial activism; timidity and mediocrity on the part of the judges accompanied by loyalty born out of pressures and expectations of favour from the Executive. See I.G. Shivji, ed., The State and the Working People in Tanzania (Dakar: CODESRIA, 1985) at 7.

72 The judicial response to challenges to government action or legislation is a good

measure of the reality of the autonomy of judicial institutions from the government.76

George Gadbois77 and Uprenda Baxi,78 for example, have argued that acquisition of a

highly autonomous status by the Indian Supreme Court depended critically on its role as a

forum for opposition politics.78a African courts have generally been unable to effectively

assume a similar role. As we shall explain shortly, the opposition did not seriously

consider the judicial process as a valuable political resource, and, at any rate, the courts were, in the circumstances, constructively inaccessible.

A sophisticated account of the heavy hand of legalism in public law adjudication must recognize that it is partly driven by a judicial philosophy that recognizes only a minimal judicial role in public policy. In Africa, demand for this 'philosophy' is primarily a reflection of the low level of institutionalization of the judiciary. It is difficult

Judges of the Tanzania Court of Appeal, accounting to one account, "exercise extra care and clear judicial restraint when the interests of the State are at issue. They seem to have completely internalized the State that they know what is expected of them by the appointing authorities." See Peter, Human Rights in Tanzania, supra note 12a at 715. Indeed, a leading (and activist) judge has acknowledged, "the image of the judiciary in Tanzania since independence in the field of the protection of the liberty of a citizen in the face of an administrative detention order has not been a good one." Per Mwalusanya J in Chumchua s/o Manva v. Officer i/c of Musoma Prison & anor (1988) (unreported), reproduced in Peter, Human Rights in Tanzania, ibid. 635 at 644-45. 76 Seidman, supra note 70 at 826. 77 G.H. Gadbois, "The Supreme Court of India as a Political Institution" in R. Dhavan, R. Sudarshan & S. Khurshid, eds., Judges and the Judicial Power: Essays in Honour of Justice V.R. Krishna Iyer (Bombay: Tripathi, 1985)251. 78 U. Baxi, The Indian Supreme Court and Politics (Lucknow: Eastern Book Co., 1980). 78a Even though for very many years, the Court actually intervened mainly at the behest of 'unpopular' opposition, the rural landlords and big businessmen, who had lost out in the electoral process. In his study of the caseload of the Supreme Court in the period 1950-67, George Gadbois reported that the businessmen and landlords won 43 per cent and 40 per cent respectively of their cases against the government. See G.H. Gadbois, "The Supreme Court of India: A Preliminary Report of an Empirical Study" (1970) IV J. Const. & Pari. Studies 46.

73 to describe this outlook more clearly than Sir Charles Newbold, sometime President of the Court of Appeal for East Africa, who stated, ex cathedra, the basic tenet as follows:

The courts derive a considerable amount of their authority and perhaps...the acceptance of their authority from their independence of the executive, from their disassociation from matters political. In a democracy, .. .the determination of matters political... rests ultimately with the will of the people through the ballot box. For that purpose the people elect the executive and the legislature and it is on these two branches...that the primary responsibility rests. The third branch...the judiciary - is not elected and should not seek to interfere in a sphere which is outside the true function of the judges.... it is the function of the courts to be conservative, so as to ensure that the rights of the individual are determined by the rule of law.

The weak institutionalization of African judiciaries is also the result of colonial experience. Given the weak foundation, it may well be, as A.N.E. Amissah submits, that the institutional conflict between the government and the judiciary came too soon after decolonization, and the judiciary stood no chance in the absence of an independent

79 C. Newbold, "The Role of the Judge as a Policy Maker" (1969) 2 Eastern Afr. LR 127 at 131 [emphasis added]. This policy is of course driven by the reality of weak institutionalization of the courts. As he stated in the course of the same lecture, "I believe firmly that the courts should seek as little as possible to base their decisions on any political philosophy or to regard their decisions as policy making. .. .1 ask you to imagine what might well happen if the courts of a newly emergent nation, in which the rule of law is not a settled way of life either on the part of the executive or of the people, were by their judicial decisions to enter the political arena.... If the courts were to enter the political arena, I doubt whether they would continue for long to enjoy the independence which is the treasured role of the judiciary in the British system of justice ...." Ibid, at 132-33 [emphasis added]. Similarly, according to Justice P.T. Georges, one time chief justice of Tanzania, "the concept of the judge as the neutral, belonging to no party in the multi­ party democracy, can have no meaning here where there is one [political] party. If he stands aloof seeming to play the apolitical role which is supposed to be his, his motives will doubtless be suspected (sic)." See P.T. Georges, "The Court in the Tanzania On-Party State" in G.F.A. Sawyer, ed., East African Law and Social Change (Nairobi: East African Publishing House, 1967) 26 at 44. With judges thinking in this manner, it is not surprising that Katende and Kanyeihamba concluded that the "Court [of Appeal for East Africa] and its judges have, thus far, managed to keep the delicate balance between the extremes of deliberately, though fairly, antagonizing a government, and subserviently, but contrary to law and in conflict with their consciences, reaching decisions intended to please the various governments" See Katende & Kanyeihamba, supra note 52 at 54.

74 legislature that could have sometimes thrown its weight behind the courts. This

situation, to be sure, is largely a carry-over from the subordination of the judiciary in the

immediate colonial past, and this colonial socialization is a major source of the

entrenchment of judicial and political attitudes regarding the supposed inappropriateness

of the judiciary confronting the government. The result, however, is a substantial

capacity/ legitimacy deficit in the judicial system. Herein lies the primary explanation

of the inadequate performance of the African judiciaries in public law adjudication.

Formalism is simply a tool without an independent force of it own. In spite of the many

examples discussed in this chapter, the extent of actual political influence in judicial

decision-making may not be particularly significant. But that is beside the point. What is

important is that the courts' politically weak position meant that they were constantly

unwilling to go against the preferences of other policy competitors.

We shall presently develop and tie together each aspect of our thesis that a critical

linkage exists between judicial reticence and the weak institutionalization of African

judiciaries. It is important at this stage to place the African experience of the judiciary

and public policy in the broader context of contemporary global understandings of the

expansion of judicial power. Any further discussion must therefore abide a brief

exploration of the broad outlines of major theoretical directions on the possibility of the judicialization of public policy. In what circumstances is judicialization possible, and

what factors could inhibit its development?

80 See A.N.E. Amissah, The Contribution of the Courts to Government: A West African View (Oxford: Clarendon Press, 1981) at 55. 81 See C. Palley, "Rethinking the Judicial Role: The Judiciary and Good Government" (1969) 1 Zambia L.J. 1.

75 III. DO BILLS OF RIGHTS MATTER?: MODELS OF EXPANSION OF JUDICIAL POWER

A. Formal Criteria of Judicialization

There is practically a consensus injudicial research that judicialization of public policy is

likely to become established only where the appropriate conditions exist. In a survey of

extant literature, C. Neal Tate identified the leading factors as democracy, the separation

of powers, a constitutional bill of rights, or at least, a "politics of rights," active

deployment of litigation as recourse by interest groups and political opposition, and the

ineffectiveness of majoritarian or policy-making institutions, or indeed, the preference of

these institutions for a judicial solution to problems of public policy.82 As experience

shows, all of these factors need not co-exist to adequately account for any particular

expansion of judicial power. Yet, it is perhaps remarkable that although most of the

factors identified were formal aspects of the post-colonial constitutional order in sub

Saharan Africa, there was no significant expansion of judicial role in public policy

making. On the contrary, as we shall argue, there was strategic avoidance of courts by

interest groups and the opposition because of fear judicial legitimization of government

policy.

The explanation provided by Tate is that, although the judicialization of politics is

unlikely to proceed very far in the absence of the facilitative conditions, even with all of them present, significant judicialization still does not occur. Instead, he argues, the

82 C.N. Tate, "Why the Expansion of Judicial Power" in C.N. Tate & T. Vallinder, (eds.) The Global Expansion of Judicial Power (New York: New York University Press, 1995) 27. 83 Ibid, at 33.

76 critical factor in the actual development of judicialization is ultimately the personal

attitudes and policy preferences of judges.84

Under otherwise favourable conditions, judicialization develops only because judges decide that they should (1) participate in policy-making that could be left to the wise or foolish discretion of other institutions, and at least on occasion, (2) substitute policy solutions they derive for those derived by other institutions. 5

According to this view, restrainist judges would therefore be most likely to resist the

judicialization of public policy regardless of the values promoted by a particular policy.

Activist judges, on the other hand, would promote judicial intervention where values that

are preferred by them are not reflected in existing policy. "But when those values are

consistent with the values dominating majoritarian institutions, there will be much less

incentive for activist judges to seek to judicialize a political process that is already

producing such good policy results, even though the conditions are favourable for doing

so."86

Since a number of the facilitative conditions for judicial expansion identified by

Tate are present, could it be therefore that in Nigeria, and generally, in Commonwealth

Africa, the judiciary largely comprise restrainist judges. Otherwise, if there are activist judges at all, are their policy preferences generally consistent with the government's? Or

could it be instead that there are inhibitory institutional considerations in the judicial

regime that actually engender Formal Style, restrainist decision-making? Tate of course

84 He provides only a simple attitudinal classification of judges: leftist-activist, leftist-restrainists, rightist-activist, and rightist-restrainists. But he also cautions that this is "an oversimplification, in part because the policy values represented in the political process at large and in the minds of judges are multiple: there is not a single left-right dimension on which all policies can be easily placed and against which the policy orientations of the majoritarian institutions can be assessed." Ibid, at 36. 85 Ibid, at 33 [emphasis in original]

77 does not account for the impact of such inhibitory factors on the prospect of adjudication.

This apart, the thesis that judicial attitudes are the critical factor in judicialization is not necessarily acceptable. Courts, for example, may pay far greater attention to the policy preferences of the major political actors than is indicated in Tate's analysis.87

The two models discussed below assign the critical role to an exogenous factor - demand for expansion of judicial power by the political elite and other constituencies.

This perspective shifts our focus from the supply to the demand side of the judicialization of politics. In the context of emergent courts, however, the significance of the demand factor is easily overstated. Demand should almost certainly have a positive impact on institutional power of courts on the long run. But in the short term, whether courts actually, or have the capacity to, actively intervene in policy making might depend more on how institutionally secure they are and on their policy space. The behaviour

(reticence) of emergent courts may in fact soften demand.

B. Demand Model I: Politics of Hegemonic Preservation

In a study of the contemporary experience of Israel, Canada, New Zealand, and South

Africa, Ran Hirschl has recently called attention to the need to focus more closely on the

86 Ibid, at 34. 87 For example, Robert Dahl long ago argued, on the basis of statistical analysis of caselaw, that the United States Supreme Court, as an element in the political leadership of the "dominant alliance" in the national politics of the United States is almost powerless to affect the course of national policy. That is, it rarely opposes policies favoured by the alliance. "Within the somewhat narrow limits set by the basic policy goals of the dominant alliance, the Court can make national policy. Its discretion, then, is not unlike that of a powerful committee chairman in Congress who cannot, generally speaking, nullify the basic policies substantially agreed on by the rest of the dominant leadership, but who can, within these limits, often determine important questions of timing, effectiveness, and subordinate policy." See R.A. Dahl, "Decision-Making in a Democracy: the Supreme Court as a National Policy-Maker" (1957) 6 J. Pub. L. 279 at 293-94 [emphasis in original]

78 role of political vectors in judicial empowerment. He argues that the

constitutionalization of bills of rights and the establishment of judicial review are in

many cases simply an efficient short-term institutional means for ruling elites to preserve

their hegemony and secure their policy preferences in the majoritarian decision-making process that may otherwise be slipping out of their grasp.

In such an environment judicial involvement in policy-making is likely to become well institutionalized. The payoff of this seemingly counter-intuitive move includes the

fact that by opting for judicial solutions to problems of public policy, the governing elites minimize any political cost of unpopular decisions.

From the politicians' point of view, the courts may be an effective means of reducing the risk to themselves and to the institutional apparatus within which they operate. Delegating policymaking to courts may become even more attractive for political power holders when disputes arise that most of them would rather not address publicly, either because "no-win" dilemmas, such as the dispute about abortion policy in the United States or because politicians regard public disputes in majoritarian policymaking fora as likely to put their policy preferences at risk. Under such conditions, empowering national high courts may serve the interests of the political status quo by transferring public

The discussion that follows is based on R. Hirschl, "The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions" (2000) 25 Law & Soc. Inquiry 91, and "The Struggle for Hegemony: Understanding Judicial Empowerment through Constitutionalism in Culturally Divided Polities" (2000) 36 Stan. J. Int'l L. 73. The substance of these papers is restated in Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, Mass.: Harvard University Press, 2004) at 17-99 [hereinafter Hirschl, Towards Juristocracy]. Hirschl's is one of numerous strategic explanations of judicialization. Unlike existing limited ("thin") strategic accounts, Hirschl proposes what he calls a "thick" strategic explanation which captures "a strategic interplay between three key groups: threatened political elites who seek to preserve or enhance their political hegemony by insulating policy-making processes from the vicissitudes of democratic politics; economic elites who may view the constitutionalization of certain economic liberties as a means of promoting a neoliberal agenda of open markets, economic deregulation, anti-statism, and anticollectivism; and judicial elites and national high courts that may seek to enhance their political influence and international reputation." This is what he calls the hegemonic preservation thesis. See Hirschl, Towards Juristocracy, ibid, at 43

79 responsibility for policymaking and by insulating policymaking from popular political pressures.89

Because of the disproportionate access of the governing elite to the legal process, a they are in the best position to actualize a sustained deployment of judicial remedies.

The volte-face of the governing elites on the constitutionalization of a bill of rights and judicial empowerment in the post-Apartheid constitutional reforms in South

Africa aptly illustrates the hegemonic preservation thesis.90 Almost from the founding of

89 "Political Origins," Ibid., at 105. 89a See D.D. Mokgatle, "The Exclusion of Blacks from the South African Judicial System" (1987) 3 S. Afr. J. Hum. Rts. 44; C.R.M. Dlamini, "The Influence of Race on the Administration of Justice in South Africa" (1988) 4 S. Afr. J. Hum. Rts. 37. 90 See Hirschl, "Political Origins," supra note 88 at 134-37, and M. Mandel, "A Brief History of the New Constitutionalism, or 'How We Changed Everything So that Everything would Remain the Same'" (1998) 32 Israel L.R. 250 at 277-81. It is wrong to suppose however, as these authors assume, that the notion of a justiciable bill of rights was hitherto strictly inconsistent with the policy of the African National Congress (ANC). While it is true that the ANC released its document, "Bill of Rights for a New South Africa" for the first time in 1990, it was clearly anticipated two years earlier by its "Constitutional Guidelines for a Democratic South Africa." See text in (1989) 5 S.A. J. Hum. Rts. 131. The claim that this was a decisive break with the long established policy of the ANC's Freedom Charter is not well founded. The purpose of the Freedom Charter was that of a political manifesto, a proclamation of a broad policy statement providing a common platform for all opponents of the South African racist minority government. Although adopted by it, it must be remembered that it did not originate from the ANC. It was adopted on 26 June 1955 by the Congress of the People, a group that included the ANC (although already the ANC's annual conference, on 16 December 1943, had adopted the "African Claims in South Africa," based largely on the Anglo-American Atlantic Charter of 14 August 1941). The "Constitutional Guidelines" of 1988 specifically affirm the transitory character of the Freedom Charter: "the stage is now approaching where the Freedom Charter must be converted from a vision for the future into a constitutional reality." It then provides, inter alia, that "the future constitution's Bill of Rights shall guarantee the fundamental human rights of all citizens irrespective of race, colour, sex, creed .... [T]he democratic state shall guarantee the basic rights and freedoms, such as freedom of association, expression, thought, worship and the press. Furthermore, the state shall have the duty to protect the right to work, and guarantee education and social security." See paras, (h) and (k) [emphasis added]. Although under the "Constitutional Guidelines," unlike the subsequent ANC's "Bill of Rights for a New South Africa," there is only a commitment to provide as yet undefined "appropriate mechanism" of enforcement rather than a specific recognition of justiceability, by the time of the publication of the "Constitutional Guidelines" the ANC's National Executive Committee had already formally accepted a commitment to a justiciable bill of rights. See A. Sachs, "A Bill of Rights for South Africa" in P. Nhere & M. Engelbronner-Kolff, (eds.), The Institution of Human Rights in Southern Africa (Copenhagen: Nordic Human Rights Publications, 1993) at 27. This commitment was formalized in the Declaration of Intent issued at the conclusion of the first plenary session of the Convention for a Democratic South Africa (CODESA), which held on 20 and 21 December 1991. See F. Cochalia, "A Report on the Convention for a

80 the Union of South Africa, the white minority government was consistently opposed both

to the adoption of a bill of rights91 and judicial review.92 But in anxious anticipation of

imminent democratic rule, the government commissioned the South African Law

Commission in 1986 to report on the desirability of the legal protection of group and

human rights.93 At the same time, the South African Federation of Chambers of Industry

issued a "Business Charter of Social, Economic and Political Rights." In February 1993, just ahead of the constitutional negotiations, the government released its "Proposals on a

Charter of Fundamental Rights."

Democratic South Africa" (1992) 8 S.A. J. Hum. Rts. 249. Far from being irreconcilable with the Freedom Charter, "only now," noted Albie Sachs, a leading adviser to the ANC, "are many of us beginning to understand the full implications of constitutionalism, and especially of an entrenched bill of rights. Suddenly we are realizing that constitutionalism, far from being a brake on democracy, offers the best chance of realizing the non-racial ideals set out in the Freedom Charter." See A. Sachs, Advancing Human Rights in South Africa (Capetown: Oxford University Press, 1992). 91 But originally, the South African Constitution of 1909, the South Africa Act, 9 Edw. 7 c.9 (U.K.), contained two entrenched clauses, securing the existing colour-blind franchise (s. 35), particularly in the Cape, and the equality of English and Afrikaans languages (s. 137). With the official enunciation of the Apartheid policy, Prime Minister Malan announced the removal from the electoral roll of the mixed-race ("coloured") voters in the Cape, which was effected in 1951 by the Separate Representation of Voters Act in a flagrantly unconstitutional manner. It was promptly declared unconstitutional by the judiciary in the first major assertion of the power of judicial review under the Constitution. See Harris v. Minister of the Interior 1952 (2) S.A. 428 (A.D.). Parliament's response of constituting itself into a High Court of Parliament to review judicial decisions was also held unconstitutional. See Minister of the Interior v. Harris 1952 (4) S.A. 769 (A.D.). Finally, after a series of ingenious machinations, Parliament was able to pass, by the prescribed procedure, the South Africa Act Amendment Act 1956 (Act 9 of 1956), which itself revalidated the 1951 Separate Representation of Voters Act. Confronted with the new situation, an enlarged ("packed") Supreme Court gave in. See Collins v. Minister of the Interior 1957 (1) S.A. 552 (A.D.). For a full account, see G. Marshall, Parliamentary Sovereignty and the Commonwealth (Oxford: Clarendon Press, 1957) 138-248. See also D.V. Cowen, "The Entrenched Sections of the South Africa Act: Two Great Legal Battles" (1953) S.A.L.J. 70. 92 The exclusion of judicial review (except relating to a law altering or repealing s. 137 or s. 152) was introduced into the South Africa Act by the South Africa Amendment Act, 1956, ibid. The exclusion was further amplified by the South Africa Amendment Act, 1958 and s. 59(2) of the Constitution of 1961. In the pre-union (1909) constitutional order, judicial review either did not arise or, in some cases, was even specifically forbidden. See J. Bryce, "Two South African Constitutions" in Constitutions (New York: Oxford University Press, 1905) 228-69; H.R. Hahlo & E. Kuhn, The Union of South Africa: the Development of its Laws and Constitution (London: Stevens, 1960) c. 3; M. Chaskalson, et al., Constitutional Law of South Africa (Cape Town: Juta, 1998) c. 2; J. Dugard, Human Rights and the South African Legal Order (Princeton, N.J.: Princeton University Press, 1978) 14-25. 93 See SA Law Commission, Project 58: Group and Human Rights: Working Paper (1989); SA Law Commission, Project 58: Group and Human Rights: Interim Report (1991).

81 What was even more remarkable, however, when the 1993 Interim Constitution was finally agreed upon by the Multi-Party Negotiating Process's (MPNP) Negotiating

Council, was not simply that it contained one of the most elaborate justiciable bill of rights ever,94 but the power of the democratically elected constituent assembly to make the final constitution was severely fettered by compulsory adherence to certain stipulated

"constitutional principles,"95 and by giving the Constitutional Court absolute authority to determine whether or not there has been compliance by the Constitutional Assembly.9 In effect, the Court was empowered to override the exercise of constituent power.

On 6 September 1996, the Constitutional Court, exercising the aforesaid power, took the unprecedented step of disallowance. It declared that the Final Constitution

94 An authoritative account of how the Bill of Rights was bargained out is provided by two members of the Technical Committee on the Protection of Fundamental Human Rights. See L. du Plessis & H. Corder, Understanding South Africa's Transitional Bill of Rights (Cape Town: Juta, 1994). 95 Schedule 4 to the Interim Constitution. Principle II provides: "Everyone shall enjoy all universally accepted fundamental rights, freedoms and civil liberties, which shall be provided for and protected by entrenched and justiciable provisions in the Constitution, -which shall be drafted after having given due consideration to inter alia the fundamental rights contained in Chapter 3 of this Constitution." [emphasis added]. Principle VII: "The judiciary shall be appropriately qualified, independent and impartial and shall have the power and jurisdiction to safeguard and enforce the Constitution and all fundamental rights." See generally, B. de Villiers, "The Constitutional Principles - Content and Significance" in B. de Villiers, ed., Birth of a Constitution (Kenwyn: Juta & Co., 1994) 37 96 Section 71: (1) A new constitutional text shall - (a) comply with the constitutional principles contained in Schedule 4; and (b) be passed by the constitutional Assembly in accordance with this Chapter. (2) The new constitutional text passed by the Constitutional Assembly, or any provision thereof, shall not be of any force and effect unless the Constitutional Court has certified that all the provisions of the new constitutional text comply with the Constitutional Principles referred to in subsection (1) (a).

82 adopted by the Assembly had not fully complied with the constitutional principles,

thereby compelling it to reopen the issues complained of.98

The South African experience is almost unique in Africa. As we have seen, a

majority of the initial generation of constitutional bills of rights in Commonwealth Africa

were adopted in very different circumstances, usually upon, or even prior to,

independence, and often as part of a process of constitutional reception. Therefore except

for Zimbabwe and, perhaps, Kenya, with a significant privileged white minority, the hegemonic preservation thesis may have limited application. On the other hand, it could be also that the absence of an hegemonic elite desperately in need of judicial intervention in public policy-making may be one reason why the formal fortification of the judiciary in Africa has yet to translate to active judicialization in a majority of cases. This argument is missing in the extant literature.

C. Demand Model II: The 'Legal Support-Structure' and Judicial Activism Capacity to mobilize judicial remedies, seen as a question of availability of resources for legal mobilization, may provide a different explanation for enhanced

See In re Certification of the Constitution of the Republic of South Africa 1996 1996 (4) SA 744 (CC). 98 The revised Constitution was finally certified by the Court on 4 December 1996. See Certification of the amended Text of the Constitution of the Republic of South Africa 1996 1997 (2) SA 97 (CC). See H. Ebrahim, The Soul of the Nation: Constitution-Making in South Africa (Cope Town: Oxford University Press, 1998) at 223-35; C. Murray, "A Constitutional Beginning: Making South Africa's Final Constitution" (2001) 23 U. Ark. Little Rock Law Review 809 at 814 ("the role of the Constitutional Court introduced an 'Alice in the Wonderland' element in the [constitution-making] process"). However, Gibson and Caldeira have recently suggested that the Court for the moment enjoys a limited store of institutional legitimacy, has a limited capacity to bring about acquiescence to its controversial decisions, and is unable to play a major role as a veto player in South African politics. See J.L. Gibson & G.A. Caldeira, "Defenders of Democracy? Legitimacy, Popular Acceptance, and the South African Constitutional Court" (2003) 65 J. Politics 1; J.L. Gibson, "The Evolving Legitimacy of the South African Constitutional Court" in F. du Bois & A. du Bois-Pedain, Justice and Reconciliation in Post-Apartheid South Africa (Cambridge: Cambridge

83 judicial involvement in policy making. This assumes that, generally, irrespective of the balance of judicial attitudes, only litigants who have the necessary strategic resources will be able to influence the judicial agenda. Charles Epp makes a strong case for this. He argues that although judicial attitudes are not unimportant, the decisive factor in the judicial rights revolution in the United States and elsewhere has been strategic organizing by rights advocates, sustained by what he calls the support structure for legal mobilization. This support regime includes rights advocacy organizations (such as, in

Canada, the Women's Legal Education and Defence Fund) and lawyers, and sources of funding, particularly government grants. Without this support, sustained litigation of rights claims would be impossible or at least, limited, and certainly would hardly impact the agenda of the final appellate courts.

The unstated premise of the conventional explanations for rights revolutions is that lawsuits and appeals easily arise as a reflection of constitutional provisions, judicial policies, and/or cultural changes. Thus, in the standard theories, a rights-friendly culture naturally generates rights cases; litigants easily and naturally rely on constitutional rights guarantees; and litigants pursue rights claims if judges indicate friendliness towards those claims. But cases do not arrive in the supreme courts as if by magic. The premise of the alternative explanation proposed here is that the process of legal mobilization - the process by which individuals make claims about their legal rights and pursue law

University Press, 2008) 229-266. See also L. Berat, "The Constitutional Court of South Africa and Jurisdictional Questions: In the Interest of Justice? (2005) 3 Int'l J. Const. L. 39 at 72-76. 99 C.R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago: University of Chicago Press, 1998). See also F.L. Morton & R. Knopff, The Charter Revolution and the Court Party (Peterborough, ON: Broadview Press, 2000). Over thirty ago, Marc Galanter argued that there was an observable disparity in the respective capacity of one-shotters (OS) and repeat players (RP), such as insurance or finance companies, to access the law. See M. Galanter, "Why the 'Haves' Come Out Ahead: Speculations on the Limits of Legal Change" (1974) 6 Law & Soc'y Rev. 95. See further P. McCormick, "Party Capability Theory and Appellate Success in the Supreme Court of Canada, 1949-1992" (1993) 26 Can. J. Pol. Sci. 523. Cf. S.L. Haynie, "Resource Inequalities and Litigation Outcomes in the Philippine Supreme Court" (1994) 56 J. Pol. 752; L. Epstein & C.R Rowland, "Debunking the Myth of Interest Group Invincibility in Courts" (1991) 85 Am. Pol. Sci. Rev 205.

84 suits to defend or develop those rights - is not in any simple way a direct response to opportunities provided by constitutional guarantees or judicial decisions, or expectations from popular culture. Legal mobilization also depends on resources, and resources for rights depend on a support structure of rights- advocacy lawyers, rights-advocacy organizations, and sources of financing.

Epp establishes a correlation between the growth of judicial protection of human rights and the development of the support structure in his analysis of the final appellate courts of the United States, Canada, India, and the United Kingdom in the period 1960-

1990. Measuring the impact of rights on the judicial agenda, and the direction of judicial policy and their implementation, a process he calls the 'rights revolution,' he concludes that judicial protection of rights was strongest in the United States and Canada and weakest, of the three, in India. This, according to him, corresponded with the respective strength/ weakness of the legal support structure in these countries. Therefore, "under conditions in which the support structure is deep and vibrant, judicial attention to rights may be sustained and vigorous; under conditions in which a support structure is shallow and weak, judicial attention to rights is likely to be intermittent and ineffective."101

Any explanation of a bill of rights regime that is founded on the degree of judicial mobilization is particularly relevant to the performance of the appellate judiciary in the enforcement of bills of rights in sub Saharan Africa. In Nigeria, and almost everywhere else, human rights cases have always been a mere fraction of judicial business. If courts are not strongly mobilized, it would be idle to expect significant judicial involvement in public policy. We shall presently explain this phenomenally low mobilization in the

100 Epp, ibid., at 18-19.

85 context of the weak institutionalization of African judiciaries. Clearly, there are other factors as well, and these will be addressed in Chapter 4.

Epp's argument, it should be remembered, is that to be meaningful, what is required is widespread and sustained strategic mobilization, which is most likely to be achieved only with the institutional resources of rights advocacy organizations and lawyers, and considerable financial support.102 Thus according to his argument, although in sheer number, the Supreme Court of India is highly mobilized, there has, because of the limited organizational and financial resources available for appellate litigation, been no development of a sustained, deep policy making on individual rights.103 In India, unlike the United States and Canada, "the landmark rights decisions remain isolated,

[and] no sustained rights agenda has grown up around them."

A possible logical implication, albeit undisclosed, of Epp's argument is that rights revolutions are unattainable in the low-income economies of the South. In that case, the support-structure argument is reducible simply to an economic development analysis, whereby the degree to which courts can develop rights protection policies is a function of the goods the economy is able to assign to rights-advocacy. Otherwise, given the unmistakeable prominence of the Supreme Court of India in national policy making and its very impressive record in human rights decision-making, it may well be the case that

101 Ibid., at 198-99. 102 Certain institutional adaptations of the judiciary are necessary as well to accommodate any sustained mobilization, especially the court's control of its docket. For Epp therefore the discretion to select their own cases granted the United States Supreme Court and, partly, the Supreme Court of Canada in 1925 and 1975 respectively created an environment, free of routine litigation, conducive to prioritizing human rights and public law issues on the judicial agenda. In contrast, the business of the Supreme Court of Nigeria is predominantly as-of-right appeals. This will be discussed in detail in Chapter 4. 103 Supranoteat95. 104 Ibid., at 89.

86 the absence of a strong impact of particular issues on the Court's agenda is accounted for, at least, partly, by reasons such as excessive caseload and its largely non-discretionary docket. Interestingly, this explanation would be consistent with Epp's position that unless a court has the power to chose the cases it wishes to hear, a sustained rights agenda is unlikely to predominate the judicial calendar. That power, as we shall see in chapter 4's excursus, is largely illusory in the case of the Supreme Court of India.

IV. INSTITUTIONAL LEGITIMACY OF COURTS

A. Institutional Legitimacy and Judicial Autonomy

"Why," it has been asked, "has the Indian experience of litigation in human rights questions been so very different from that of most other Commonwealth states, where such cases are as yet generally very rare?"105 The answer suggested is that this is partly because of the extent to which the Indian courts are institutionalized as instruments for the determination of conflict.106 Like the Nigerian Supreme Court, the Indian Supreme

Court was strongly exercised by a Formal Style decision-making culture during the first two decades and half of existence.107 Why then has its experience been so vastly different from that of the Nigerian Court? The critical explanation lies in the former's far greater

105 J.S. Read, supra note 5 at 23. 106 "The answer is no doubt complex, relating to the traditions of the bench and bar, the extent of education, the degree of politicization within the nation, the general degree of litigiousness and the extent to which the courts are institutionalized as instruments for the determination of conflict." Ibid. [Emphasis added] In India, "[t]he governing elite has often been deeply distressed by particular decisions, and they have effectively overcome, especially via the [constitutional] amendment route, many decisions found objectionable. But the governing elite hasn't ignored decisions, has continued to make use of the judicial process, and hasn't sought in any gross way to undermine the higher judiciary." See Gadbois, supra note 73 at 8. Cf. Africa, see, F. Reyntjens, "Protecting Human Rights in Sub-Saharan Africa: Specific Problems and Challenges" (1992) 7 SA Pub. L. 40 at 42.

87 ability and willingness to intervene in, or even spearhead, public policy-making, and to

do so, quite often, directly opposing government policy. In short, in India, "the Supreme

Court is a centre of political power."108 Individuals, interest groups, and the political opposition have therefore been strongly attracted to rally the Court to their cause.

In 1950, the very first year of the Court, 470 applications for writ petitions to enforce fundamental rights were filed directly at the Supreme Court of India under

Article 32 of the Indian Constitution. The following year the number was almost 700. In

1973 alone over three and a half thousand Article 32 cases were instituted at the Court.109

This phenomenal growth of the docket becomes even more remarkable when one considers that the Supreme is a direct successor of the Federal Court, ° which during its twelve-year existence (1937-50) heard a total of only 158 cases.111

See R. Dhavan, The Supreme Court of India: a Socio-Legal Critique of its Juristic Techniques (Bombay: Tripathi, 1977); A.R. Blackshield, '"Fundamental Rights' and the Institutional Viability of the Indian Supreme Court" (1966) 8 J.I.L.I. 139. 108 Baxi, supra note 78 at 10. ("The first hometruth is that the Indian Supreme Court is a centre of political power, even a vulnerable one. It is a centre of political power simply because it can influence the agenda of political action, control over which is what power politics is all about.... The second hometruth is that as a centre of power, the Court remains vulnerable. The Court has no constituency in the sense that politicians have" [Emphasis in original].) Although vulnerable, its readiness to review government policies has been highly positive for the Court institutionally. "Indeed, the view is widespread that the judges are characterized not only by the absence of subservience, but also by a willingness to stand firm and do battle with the politicians. The clashes, in sum, have increased the Court's visibility and strengthened the view that judges are independent and detached from the government of the day, and this has resulted in enhanced prestige and national authority." See Gadbois, supra note 73 at 9. 109 See R. Dhavan, Justice on Trial: The Supreme Court Today (Allahabad: Wheeler, 1980) app. HI, statement 4 (institution of cases in the Supreme Court 1971-1977). 110 The constitutional proposals of 1933 had recommended the creation of both a Federal Court and a Supreme Court of Appeal. See Proposals for Indian Constitutional Reform Cmd. 4268 (1933) at paras. 151 & 163 respectively. But the implementing legislation, the Government of India Act 1935 26 Geo. V, c. 2 (U.K.), established only the . It was vested with constitutional jurisdiction, and appeals lay to the Privy Council. It was superseded by the present Supreme Court upon the latter's inauguration on 28 , with same judges as the Federal Court. 111 However, the Court sat for an average of only twenty-eight days annually. See G.H. Gadbois, "The Federal Court of India 1937-1950" (1964) 6 J.I.L.I. 253. Secondly, it must be admitted that the jurisdiction of the Federal Court was closely circumscribed. Appeals lay from the High Courts to it upon a certificate granted by the former, and only with respect to a judgment, decree or final order involving a

88 This extraordinary confidence in the Court does not appear to have been in any

way undermined by the fact that the Formal Style was prominent in decision-making

during this period.112 Because unlike the Nigerian Supreme Court the Indian Court has

been far more able to uphold challenges against the government. It is estimated that as

many as forty per cent of the cases against brought the government are decided against

it.1 a Indeed, it has been said, "of the world's apex judicial tribunals, the Indian Supreme

Court ranks among the most willing to find fault with what the government has done."113

substantial question of law as to the interpretation of the Constitution Act, or, the Indian Independence Act, 1947, or any order made thereunder. Its original jurisdiction in disputes between two or more member states of the Federation or between any of them and the federal government was limited to declaratory judgment only. It is hardly surprising therefore that the Court was invited to settle only four such disputes. 112 See note 107 supra. Indeed, this was sufficiently worrying to warrant McWhinney's prophesy in the 1960s, that "it seems likely that the Indian Constitution will be subjected to some stress and strain in the future unless the Indian Supreme Court is prepared to adopt a more consciously creative role." See McWhinney, supra note 71a at 139. Yet, at the same time, the Court began experiencing an avalanche of litigation. For details, see R Dhavan, Litigation Explosion in India (Bombay: Tripathi, 1986) c. 3, and, more generally, The Supreme Court under Strain: the Challenge of Arrears (Bombay: Tripathi, 1978). Admittedly, confidence in the Court was undermined for a period as a result of what was perceived to be its supineness during the 1975-77 Emergency, especially, Additional District Magistrate, Jabalpur v. S.S. Shukla (1976) Supp. SCR 17 (the Habeas Corpus case). For a strong defence of the Court's post- Emergency "populistic quest for legitimation," through even greater intervention in public policy, see Baxi, supra note 78 at 121-248A, and his Courage, Craft and Contention: the Indian Supreme Court in the Eighties (Bombay: Tripathi, 1985). 112a The evidence is provided in a survey by George Gadbois of the cases reported in the Indian Supreme Court Reports during the period 1950-67. "In the slightly over two-thirds (2,186) of the [3272] reported decisions, the disputants were some level of the government on one side, and an individual or private party on the other. The government lost fully 40 per cent of this litigation, which is substantial proof that the judges do not cower before the ministers and legislators. Few, if any, other governments in the world fare as poorly in encounters with their citizens before the nation's highest tribunal. Moreover, in 487 of these 3272 decisions, the validity of legislation was explicitly attacked by the private party to the dispute, and in 128 of these instances the legislation was held unconstitutional or otherwise invalid in its entirety (27 State laws, 4 Central laws), or in part (70 State laws, 27 Central laws)." See G.H. Gadbois, "Indian Judicial Behaviour" (1970) 5 Economic and Political Weekly 153, quoted in Gadbois, supra note 77 at 7. An analysis of published decisions of the Supreme Court from 1973-81 showed that some level of government was a party in 37.62 per cent of cases. See V.K. Gupta, Decision Making in the Supreme Court (A Jurimetric Study) (Delhi: Kaveri Books, 1995) at 88-91. 113 G.H. Gadbois, "The Institutionalization of the India Supreme Court" in J.R. Schimidhauser, ed., Comparative Judicial Systems: Challenging Frontiers in Conceptual and Empirical Analysis (London: Butterworths, 1987) 111 at 127.

89 The high degree of autonomy exhibited by the Indian Court is a function of

effective institutionalization. As a process by which organizations acquire value and

stability, Samuel Huntington states that the more institutionalized an organization is, the

greater its amount of strength, viability, stability, capacity, and power.114 Applying

Huntington's structural indices of institutionalization,1143 George Gadbois has pointed out that formal possession of judicial power, prescribed, say, in a constitution, however

extensive, means very little unless, as with the Indian Supreme Court, it is exercised often enough effectively to demonstrate its reality.'15

This reality is a mark of the level of institutionalization. In India, for example, the

Supreme Court was unwavering in its sustained confrontation with a legislature that was but in name only a constituent assembly.116 It is hardly surprising therefore that by 1980, one student of the Court was able to describe it as "one of the most powerful courts in the

117 world." Or as Baxi put it, "adjudicatory power has acquired a dimension of autonomy

11 S.P. Huntington, Political Order in Changing Societies (New Haven: Yale University Press, 1968). 114a For a discussion and application to the Supreme Court of Nigeria, see section IVD of this chapter. 115 Gadbois, supra note 113. See also Gadbois, supra note 77 at 258-59, and G.E. Beller, "Benevolent Illusions in a Developing Society: The Assertion of Supreme Court Authority in Democratic India" (1983) 36 Western Pol. Q. 513 at 523 [hereinafter Beller, "Supreme Court Authority in India"] ("The Indian Supreme Court clearly fulfills the criteria employed by Huntington to characterize effective political institutionalization. It has shown an ability to overcome political challenges and redefine its functional relationship with the polity. The Court has both the complexity and the coherence to meet demands placed upon it.") 116 G. Austin, "The Supreme Court and the Struggle for Custody of the Constitution" in B.N. Kirpal, et al., eds., Supreme But Not Infallible: Essays in Honour of the Supreme Court of India (New Delhi: Oxford University Press, 2000) 1, and more generally, his Working a Democratic Constitution: The Indian Experience (New Delhi: Oxford University Press, 2000) 173-277; S. Sharma, The Parliament and the Supreme Court: Institutional Conflict for the Supremacy of Power (Gurgaon: Indira Publications, 1986) 74- 142; R. Dhavan, The Supreme Court and Parliamentary Democracy (Delhi: Sterling Publishers, 1976); Baxi, supra note 78, and supra note 112 at 64-97. For a brief outline, see B. Neuborne, "The Supreme Court of India" (2003) 1 Int'l J. Const. L. 476 at 485-95. 117 R. Dhavan, supra note 109 at 1.

90 not imminent in the constitutional scheme and indeed transcendent of it." a A direct dividend of this autonomy is the increased legitimacy of the judiciary. The political prominence of a judicial institution is a function, not of its formal powers, but of its legitimacy. The Indian Supreme Court, observed Gadbois,

is not strong and powerful because the Constitution makes provision for a strong court. In many other new States, post- independence constitutions have "created" what the framers intended to be "powerful" judicial institutions, often endowing such courts with the power of judicial review. More often than not, such judicial institutions have proved to be weak, have long since collapsed, or have been emasculated by executives unwillingly to be delayed or deterred by judges. Nor is the court in India powerful simply because it is in fact independent of the executive. ...More important than the Supreme Court's independence from the executive and formal power and authority, and without which the Court could not be an important judicial institution, is the legitimacy it enjoys, [otherwise] the Court's role in the political system would be minimal. ...The quantum of the court's power and authority is directly related to the amount of 1 1 R legitimacy it possesses.

At least four factors explain why the Supreme Court of Nigeria was not politically prominent or activist during the period covered by our study. In the first place, like almost everywhere else in sub Saharan Africa, the government in the immediate post- colonial and the succeeding military dictatorship eras, has generally been hostile to judicial involvement in public policy making. Secondly, the Court, in any case, has had limited opportunity for such intervention, as high policy matters rarely feature in its docket. The government too is not in the habit of seeking judicial solutions to policy problems. Thirdly, the socialization of the colonial judiciary fostered a heritage of

1 U. Baxi, "The Avatars of Judicial Activism: Explorations in the Geographies of [Injustice" in S.K. Verman & Kusum, Fifty Years of the Supreme Court of India: Its Grasp and Reach (New Delhi: Oxford University Press, 2000) 156.

91 reticence. The fourth factor is the under-mobilization of judicial remedies. These are not independent factors, because, for example, as we shall see, mobilization has been discouraged partly by the failure of the judiciary to rise to the challenge of the descent to dictatorship in post-colonial Africa.

As we have seen, the Nigerian Supreme Court at the beginning defined its role under the Bill of Rights very narrowly. This restrictive judicial attitude corresponded with the government's perception of judicial "interference" in public policy as inappropriate. This is clearly indicated by the reluctance of the government to initiate judicial proceedings to resolve any constitutional question. During the life of the immediate post-colonial democratic rule, so-called 'First Republic' (1960-66), in spite of the specific, original jurisdiction constitutionally vested in the Supreme Court, there was only one instance of an inter-governmental dispute taken before the Court,119 and it was hardly a surprise either that the Court avoided deciding the issue on a bogus ground of insufficient interest.

In 1961, however, the Court declared unconstitutional the Commissions and

Tribunals of Enquiry Act, a piece of federal legislation.120 The Act provided that the

Prime Minister could, whenever he deems it desirable, issue a Commission appointing

Commissioners to hold a Commission of Inquiry "into any matter or thing within or affecting the general welfare of the Federal Territory, or into any matter or thing within federal competence anywhere within the federation."121 It empowered the Commissioners

118 Gadbois, supra note 77 at 258-59 [emphasis added]. See also Gadbois, supra note 73 at 8. 119 See Attorney General, Eastern v. Attorney General of the Federation [1964] N.SC.C. 160. 120 See Adebayo Doherty v. Abubakar Balewa [1961] SCNLR 256. 121 Commissions and Tribunals of Enquiry Act, s. 3(1).

92 to summon and compel the attendance of witnesses; to compel the production of documents; and to impose imprisonment or fines. Finally, the exercise of powers under the Act was insulated from judicial review. Section 3(4) provided that the fact that a commission is issued under this provision "shall be sufficient proof of the proper exercise by the Prime Minister of his authority to do so; and neither the Commission itself nor any action of the Prime Minister in relation thereto shall be enquired into in any court of law"122

The constitutionality of the Act was challenged following the Prime Minister's appointment of a Commission under the Act to investigate certain activities, including that of the plaintiffs, in relation to the business of a licensed bank (connected to the main opposition political party). They challenged the validity of the Act on the ground of the incompetence of the Federal government to make it, by virtue of the division of powers under the Constitution and the fundamental human rights provisions. The Court upheld the challenge, holding, inter alia, that the purported exclusion of judicial review123 and the power of the Commissioners under the Act to impose imprisonment or fines violated the fundamental human rights provisions of the Constitution.124 The Prime Minister was unhappy enough about this judicial "interference" that he openly warned in Parliament that, "if our courts will allow themselves to be used in the way they are being used on any minor thing, I am afraid people will make a mockery of our courts. ...Personally, I think

122 Ibid., s. 3(4) [emphasis added]. 123 Ibid. The Court rejected the argument of the federal Attorney General, and future Chief Justice, Dr. T.O. Elias that the provision means no more than that the Courts cannot inquire into the desirability of appointing a Commission, which is a matter for the discretion of the Prime Minister, but that if the Court held that the words exceeded this intention, the provision should be read down so as to comply with the constitutional requirements. See [1961] SCNLR 256 at 267.

93 that it is wrong for every small constitutional matter to go to court; people will soon come to laugh at the courts."125

On 24 April 1970, in the course of the military dictatorship, the Supreme Court, in

1 Oft Lakanmi v Attorney General, took the unprecedented step of invalidating certain legislation127 that purported to forfeit the assets of certain persons specifically named by statute. This, according to the Court, amounted to legislative judgment, and was therefore ultra vires the lawful powers of the military government as an interim government of necessity (as the Court found). The government, which had invested itself with absolute powers,128 would have none of this. Within days, it promulgated appropriate legislation, in effect, annulling the decision.129 It is a matter for regret, although quite understandably, that at the earliest opportunity, the Court quickly pulled back from confrontation.1

1 On appeal, the Privy Council sustained the position of the Supreme Court. See [1963] 1 WLR 949. 125 Quoted in Mackintosh, supra note 72 at 41-42. But see Nwabueze, Judicialism, supra note 58 at 276 ("It is lamentable that the Prime Minister on this occasion should have departed from his known quality of self-restraint, and permitted himself the indiscretion of such a statement, but it cannot have had much effect on the judiciary."). 126 [1970] N.S.C.C. 143, (1971) 1 UILR 201. 127 The Public Officers and Other Persons (Investigation of Assets) Edict No. 5 of 1967; and The Forfeiture of Assets etc. (Validation) Decree No. 45 of 1968. Two years earlier the Supreme Court had resolved the problem of conflict between legislation of the federal government ("Decree") and of the state government ("Edict") under the military dictatorship by assuming competence to set aside the latter in that event. See N.K. Adamolekun v. Council of the University of Ibadan [1968] N.M.L.R. 253. Prior to this decision, this competence was doubtful given the absolute prohibition of judicial review of legislative powers by extant Decree. See infra note 128. 128 See the Constitution (Suspension and Modification) Decree No. 1 of 1966, section 6 ("No question as to the validity of this or any other Decree or of any Edict shall be entertained by any court of law in Nigeria"). 129 See Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970. 130 See Adejumo v. Governor of Lagos State [1972] 1 ALL NLR 159. The Court has very recently considered the same issue in the context of a subsequent military dictatorship in Nigeria. See Attorney General of the Federation v. Guardian Newspapers Ltd [1999] 9 NWLR 187. But the Court of Appeal decision in this case ([1995] 5 NWLR 703) is probably more instructive.

94 Another factor contributing to judicial reticence is the limited experience of the

Supreme Court. Major policy issues have rarely featured in its docket. One viable route for channelling public policy issues to the Supreme Courts of Canada and India131 - the non-contentious advisory jurisdiction - has never been open to the Nigeria Court. In fact, the Nigerian Supreme Court has rarely had the experience of the government passing over policy matters for judicial resolution. As we have seen, up to the very end of the nineties the original (contentious) jurisdiction of the Court in inter-governmental disputes was rarely used.133 However, the issue is not simply a matter of enlarging the jurisdiction of the Court. We have already noted that it is not sufficient that any particular formal jurisdiction exists. To be meaningful, there must exist an attitude on the part of political office-holders that it is legitimate for the judiciary to initiate changes in public policy.134

B. Colonialism and the Origins of Authoritarian Socialization of Courts

"[C]ourts in colonial times were by and large deliberate allies of the regime, and this long-standing attitude is not one that can be forgotten overnight by the courts, by the

The Supreme Court of India has special advisory jurisdiction in matters which may specifically be referred to it by the President. See India Const. Art 143. In addition, a number of statutes include provisions enabling reference of questions arising under them to the Court. For the special jurisdiction of the Supreme Court of Canada in references by the Governor in Council, and by the Senate or House of Commons respectively, see Supreme Court Act, R.S.C. 1985, c. S-26 ss. 53 & 54. 132 The jurisdiction of the Supreme Court shall be considered fully in the Chapter 4. 133 As we shall discuss below, a new trend is apparently emerging. See infra note 238 and accompanying text. 134 As is evident in India where, as Baxi notes, "the [Supreme] Court is kept busy by State. The government as the largest litigant keeps coming repeatedly before the Court." See Baxi, supra note 78 at 13. This is rationalized as a means of enabling the Court to spearhead public policy-making. See Dhavan, supra note 109 at 201.

95 administrators, or by the people." The weak institutionalization of the judiciary and its corollary, judicial reticence in policy-making, are largely an enduring legacy of the colonial judicial regime. As a leading study concluded, the colonial judge was "likely to be sensitive to the requirements of a colonial situation,"1353 and "most judges of the [old]

Supreme Court were men who seem to believe in judicial restraint and were willing to cooperate with the executive arm of the colonial government." This was principally the result of the absence of the separation of the judicial power and the absolutism of the colonial administration. The separation of the judicial power was not a principle of colonial government.

A uniform judicial administration was not introduced in 1900, when the United

Kingdom formally assumed colonial control over Nigeria. As we have previously noted, leaving aside the Colony of Lagos, the country continued to be administered as two separate halves until a decade and half later.137 With the amalgamation of the

Protectorates of Northern and Southern Nigeria, there was introduced throughout Nigeria a "judico-administrative"138 Provincial Court system, which was manned by administrative officers and subject to the supervision of the administration.139 Judicial

See J.P.W.B. McAuslan & Y.P. Ghai, "Constitutional Innovation and Political Stability in Tanzania: A Preliminary Assessment" (1966) 4 J. Mod. Afr. Stud. 479 at 487. 135a See Adewoye, supra note 21 at 256. 136 Ibid., at 255. 137 Supra note 17 and accompanying text. 138 Adewoye, supra note 21 at 253. 139 Provincial Courts Ordinance No. 7 of 1914. These courts, earlier introduced in Northern Nigeria, were manned by administrative officers - District Officers and Residents. This was one arm of the dual court system, the other being the English-type superior court of record, styled "Supreme Court." More will be said about this other court in chapter 3. Suffice it here to note that the provincial court were neither under the supervisory jurisdiction of the Supreme Court nor did appeals lie to it, except where the matter involved "non-natives."

96 power was to a large degree thereby vested in political office holders, until the

abolition of the system in 1933.141

Unlike the provincial courts, professionally trained judges were appointed to the

old Supreme Court, the most important judicial institution in the country,142 and this

small cadre of professional judges was part of the colonial Legal Department (or

Service). As a result, the Chief Justice was required to report annually to the Secretary

of State in London through the Governor on every puisne judge of the Court. The latter

The principal inadequacy of the provincial court system was that, given its personnel, orientation was more political than judicial, and this was compounded by the fact that appeals lay not to the supreme court but to the political executive. These defects were obvious enough, that by 1933, the colonial Governor of Nigeria, Donald Cameron was forced to admit that "if the decision of the Court may properly be swayed by non-judicial considerations within the knowledge of the administrative officer, and is therefore not to be based solely on the evidence which has been led .... the Court has ceased to be judicial tribunal and the officer has ceased to be a judicial officer. Change the system of law, if you will, and punish the people by administrative measures, by administrative officers exercising a kind of parental correction because the people are primitive; but remember always, pray, if you do so you will thereby be depriving the native of the protection of any judicial court and any judicial system of law." D. Cameron, "Annual Address to the Nigerian Legislative Council" (March 1933), quoted in Elias, supra note 21 at 131. A similar experience obtained in Francophone Africa. "For most of the colonial period . . . the judicial branch for all practical purposes remained subordinated to the administration. In the jurisdictions 'of local law' in French Africa, competent to deal with nearly all litigation involving Africans, the courts of first and second degrees consisted of the administrative officer in charge of the area concerned, assisted by local assessors selected by the governor. Even in the courts 'of French Law," the judges were part of a special judiciary, which was responsible not to the justice department but to the Colonial Office. The governor had an exorbitant power in the domain of justice. Not only did he eventually control the functioning of the judicial system, but he also exercised a disciplinary power over the judiciary through the Procureur general who headed the judicial branch and was responsible to the governor." See F. Reyntjens, "Authoritarianism in Francophone Africa from the Colonial to the Postcolonial State" [1988] Third World L.S. 59 at 65-66. 141 See the Protectorate Courts Ordinance No. 45 of 1933. The Provincial Courts were replaced by a set of two courts: High Court, and Magistrates' courts. But even under the new system, a Resident may be authorized to exercise the power of a High Court judge in respect of any particular cause or matter within his Province. See Elias, ibid., at 145. 142 In the next chapter we shall examine the evolution of this court as an appellate court. 143 See K. Robert-Wray, Commonwealth and Colonial Law (New York: Praeger, 1966) 476; C. Jeffries, The Colonial Empire and its Civil Service (Cambridge: Cambridge University Press, 1938) at 143- 48. Indeed, in 1910 the Colonial Office ruled that transfer of staff within the judicial department in Nigeria was the prerogative of the Governor, and that the Chief Justice enjoys a privilege of consultation as a matter of courtesy. See Adewoye, supra note 21 at 254. Moreover, within the Colonial Legal Service, Jeffries noted, there was "no hard and fast line between the legal and judicial sides, and officers frequently pass from one to the other in the course of their careers." See Jeffries ibid, at 146.

97 directly reported on the Chief Justice. A leading legal adviser to the Colonial Office

has suggested that the report on the puisne judges dealt, though not exclusively, with

questions of judicial competence, and that the Governor usually merely concurred.145 It is

plain nonetheless that since the career prospects of these judges depended on the report, it

is very unlikely in the circumstances that any judge would be prepared to take the risk of

embarrassing the administration with adverse rulings or pronouncements, even assuming

that, by definition, this would not reflect on his "judicial competence." There were indeed

instances of judges who had censured or ruled against the administration being forced out

of office.146

Apart from this, "most of them were likely to possess an outlook on colonial

questions not radically different from that of their contemporaries in the purely

administrative wing of the Colonial Service. It was an outlook bred of common

experience of the problem of colonial administration."147 Throughout the life of the

H4 Robert-Wray, ibid, at 482-83. Ibid. 146 For example, a police magistrate, Josiah Gerard who attempted to curb the abuse of power by the superintendent of police was forced to resign in 1871 by Governor Graver. William Stoker J of the Supreme Court, who ruled against the government in Davis v Rising (1910) was also compelled to resign. Colonial judges, unlike their Metropolitan counterparts, held office at the pleasure of the Crown. See Terrell v Secretary of State for the Colonies [1953] 2 Q.B. 482. At the same time, colonial regulations purportedly also made the removal of judges subject to recommendation by the Privy Council. See K. Robert-Wray, ibid, at 496-7. See also J. Read, "Constitutions on the Move: Constitutional and Legal Developments in 1958" (1959) J. Afr. L. 39. But see T. O. Elias, "The Independence of the Colonial Judiciary" (1956) 1 Juridical Rev. (N.S.) 45 and British Colonial Law (London: Steven, 1962) 59-63. Even without removal, transfer to another British colony or protectorate may be by way of punishment. The extent to which this was in fact the case may never be known, as the rate of movement of judicial officers was considerably higher than any other class in the colonial civil service. One explanation of this mobility, suggested by Jeffries, is that for judicial and legal work in the colonies, a sound practical knowledge of the law is more important than experience of local conditions." See Jeffries, supra note 143 at 143. 147 Adewoye, supra note 21 at 257. "The colonial judicial officers tended to come from the same backgrounds as Colonial Service officers generally. ...That they would tend to find the authoritarian ideologies of the Colonial Service congenial was, perhaps, to be expected. ...The ideology of judges socialized into the Colonial Service and the Colonial Judicial Service was apt to be consonant with the authoritarian ideals of the Colonial Services. The notion of support for the government of the day was too

98 Court, almost every judicial appointment was made from within the colonial Legal

Service.148 As a result, the profile of the average judge strongly indicated a commitment

to officialdom to a degree incompatible with judicial control of the abuse of

administrative power. "In matters of policy colonial judges were apt to be willing

collaborators of the executive rather than its critics."149 Not surprisingly, the judiciary

could be counted on to zealously enforce the repressive colonial regime.150

deeply engrained in that Service for colonial judges readily to admit of its very opposite." See Seidman, supra note 70 at 839. Ibid. 149 Ibid. Indeed, it is said that the result of the preservation of the Colonial Legal Service-structure in post-colonial Africa "is the legacy of executive intolerance and domination of judicial affairs.' See B. Ajibola, "Judicial Independence under Colonial Rule" in B. Ajibola & D. van Zyl, eds., The Judiciary in Africa (Kenwyn: Juta, 1998) 110. 150 This may be illustrated with the criminalization of sedition. As a reaction to public criticism, the colonial government criminalized sedition in 1909. The Seditious Offences Ordinance made it an offence to incite, whether by word or deed, ill feeling against the government and its bona fide officials. For the historical background, see T.N. Tamuno, The Evolution of the Nigerian State: the Southern Phase, 1898- 1914 (London: Longman, 1972) at 113-121. As depicted in the popular press, the effect of the legislation, "so distinctly unconstitutional and arbitrary, [was that] the people dare not by any act, word, deed, or sign signify their displeasure or dissatisfaction with the regime of government without entailing the risk of the penalty of the law for sedition" (Lagos Weekly Record). Not surprisingly, the editor of the newspaper was the first to be prosecuted under the law. See J.S. Coleman, Nigeria: Background to Nationalism (Berkeley: University of California Press, 1963) at 181-182. In 1916, a Criminal Code was introduced for the entire country. By the end of the Second World War the level of nationalist agitation in Nigeria had increased tremendously. Not surprisingly, there was a sustained prosecution under the sedition regime of the Code of nationalist agitation, especially the more militant "Zikists". In February 1946, the Zikist movement was founded in Lagos. The following year, as part of their programme of action, they organized a public lecture titled, "A Call for Revolution." The lecture, given by Osita Agwuna, the Deputy President of the Movement, called for the unity of the Nigerian people against British rule. Following the arrest of the leading participants in the said lecture, the main Nigerian political party, the National Council of Nigeria and the Cameroons (NCNC), as a measure of support for the Zikist Movement (a member organization of the NCNC), called a mass meeting. At that meeting, the President of the Movement, Habib Raji Abdullah "declared himself to be a free citizen of Nigeria, holding no allegiance to any foreign government and bound by no law other than Nigerian native law and custom and the law of nations." The participants at the meeting adopted a declaration stating that "the revolution has started and shall continue; we must rise against the enemy imperialist." See R.L. Sklar, Nigerian Political Parties: Power in an Emergent African Nation (New York: Nok Publishers, 1983) at 75. The principal characters in this episode were charged before Gregg J of the (old) Supreme Court at Lagos with uttering seditious words contrary to section 51(l)(b) of the Criminal Code. Their appeal to the West African Court of Appeal was dismissed. Blackhall P., speaking for the Court, described as the avowed aim of the Zikist Movement a commitment "to preach a gospel of hate and contempt against the Government and the British connection." In establishing seditious intention, the Court was "entitled to consider the effect on the minds of the ordinary people of this country of the subversive propaganda

99 The impact of this on judicial practice may be illustrated with the celebrated case

of Eshugbayi Eleko v The Officer Administering the Government of Nigeria}51 What

Lord Atkin called the "unfortunate history" of the case152 was the result of the unyielding

refusal of the colonial Supreme Court to even contemplate reining in administrative

power. The appellant was Oba, or king, of Lagos, at any rate until 6 August 1925, when

he was purportedly deposed by the colonial government by a notice published in the

Nigeria Gazette.153 On the same day, the following deportation order was also issued

against the appellant.

WHEREAS Eshugbayi, a native chief holding the office of Eleko in the Colony, has with my sanction been deposed and removed from his Office; AND whereas Native Law and custom requires that the said Eshugbayi shall leave the area over which he exercised influence by virtue of his office; Now therefore I do hereby direct that the said Eshugbayi shall leave the said Colony and the Province of Abeokuta, Ijebu and Ondo within twenty-four hours of the service of this Order disseminated by the organization to which the appellants belong." See (1949) 12 WACA 456, 459. In later incident, even a description in a newspaper of the 1951 Nigerian Constitution as an "obnoxious constitution" was sufficient to warrant prosecution for sedition. See The African Press v Queen (1952) 14 WACA57. 151 (1925) 6 N.LR. 73 (S.C.), (1928) 8 N.L.R. 1 (P.C.) [first phase]; [1931] A.G. 662 [second phase]. 152 [1931] A.C. 662. 153 Although, technically, the order of 6 August merely purported to sanction the decision of the royal family to remove the appellant from office, the validity of which under the applicable customary law was challenged by the appellant, by an earlier order published in an Extraordinary Gazette, the colonial Governor announced that the Government of Nigeria had ceased to recognise Eshugbayi as head of the ruling house of Docemo or as holding any position which might entitle him to official recognition from the Government or any of its officers. (Eshugbayi was second in the line of successors to King Docemo, the last independent ruler of Lagos, who in 1861 by treaty ceded Lagos to Her Majesty Queen Victoria.) At any rate, the argument put forth on behalf of the government treated the removal of chiefs as a sovereign act undertaken by the Governor on behalf of the Crown, rather than merely sanctioning the deposition done by the traditional kingmakers. The Privy Council rejected this argument. "Their Lordships have a difficulty in finding in the Letters Patent or the Instructions to the Governor any express authority given to the Governor to act on his own initiative as to the appointment or deposition of chiefs .... Prima facie deposition with sanction of the Governor [as required by the applicable legislation] would appear to point to deposition by some authority other than the Governor; in which case it would appear that a valid deposition by the appropriate authority would be necessary as well as the sanction of the approving authority." [1931 A.C. 662.

100 and that he shall not return to any of the said areas without my consent. Given under my hand August 6, 1925.

(Signed) F.M. Baddeley, Officer Administering the Government.

The appellant failed to comply with this order, as a result of which another order was issued on 8 August requiring him to be deported forthwith to Oyo, a town located one hundred and sixty-two kilometres northeast of Lagos.1 The appellant was consequently detained. He had already commenced proceedings to set aside and stay the execution of the order of 6th August. This was unsuccessful, and he immediately applied

See the Deposed Chiefs Removal Ordinance (Laws of Nigeria, 1923, c. 78 as amended by Ordinance 9 of 1925). 2 (1). When a native chief or a native holding any office under a native administration or by virtue of any native law or custom has been deposed or removed from office by or with the sanction of the Governor, whether such deposition or removal shall have been before or after the commencement of this ordinance, the Governor may: (a) If native law and custom shall require that such deposed chief or native shall leave the area over which he exercised jurisdiction or influence by virtue of his chieftaincy or office; or (b) If the Governor shall be satisfied that it is necessary for the re-establishment or maintenance of peace, order and good government in such area that the deposed chief or native shall leave such area or any part of Nigeria adjacent thereto, By an order under his hand direct that such chief or native shall, within such time as shall be specified in the Order, leave the area over which he had exercised jurisdiction or influence and such other part of Nigeria adjacent thereto as may be specified in the Order, and that he shall not return to such area or part without the consent of the Governor. For the purposes of this section the following parts of Nigeria (and no others) shall be deemed to be adjacent to an area over which a deposed chief or native exercised jurisdiction or influence by virtue of his chieftaincy or office: (I) If the area is situated in the colony: The Colony and the Provinces of Abeokuta, Ijebu and Ondo. (II) If the area is situated in one of the Provinces of florin, Oyo, Abeokuta, Ijebu and Ondo: The Colony and all provinces next adjacent to the province in which the area is situated. (Ill) If the area is situated in any other province, the province next adjacent to the province in which the area is situated. (2) Any deposed chief or native who shall refuse or neglect to leave such area or part of Nigeria as aforesaid, as directed by the Governor, or who having left such area or part of Nigeria shall return thereto without the consent of the Governor, shall be liable to imprisonment for six months, and the Governor may by writing under his hand and seal order such a deposed chief or native to be deported, either forthwith or on the expiration of any term of imprisonment to which he may have been sentenced as aforesaid, to such part of Nigeria as the Governor may by such order direct.

101 for leave to issue a writ of habeas corpus. Again, he was unsuccessful. He thereafter

issued a fresh notice of motion for leave to issue a writ of habeas corpus twice in

succession. These applications155 were dismissed on the ground that they were

substantially the same as the one refused earlier, as it was held impermissible to make a

fresh application to the same court after having been previously refused. The Full Court

of the Supreme Court confirmed this on appeal.15 The Privy Council, however,

disagreed.157 The matter therefore returned to the Nigerian court for determination on the

merits. A divisional court (Tew J) of the Supreme Court once again dismissed the

application, and this was affirmed by the Full Court.

Contrary to the position of the Nigeria's colonial courts that the propriety of the

exercise by the Governor of powers under the Deposed Chiefs Removal Ordinance was

beyond judicial cognizance, the Privy Council, upon further appeal, was quite willing to

rein in scope of the power.

Their Lordships are satisfied that the opinion which has prevailed that the Courts cannot investigate the whole of the necessary

(3) An order of deportation under Sub-section (2) may be expressed to be in force for a time to be limited therein or for an unlimited time, and shall have the same force and effect as an order of deportation made under the Criminal Code. 155 The second application like the first was made to Weber Ag. CJ on 1st October 1925. See (1925) 6 N.LR. 73. (The earlier application was dismissed on the technicality that it was not supported by an affidavit by the applicant and that it was not shown that there were any circumstances preventing him from swearing to an affidavit.) The third application, of 24 November 1925, was made to Tew J of the same court. See (1925) 6 N.L.R. 76. 156 (1926) 6 N.L.R. 81. 157 "If it be conceded that any judge has jurisdiction to order the writ to issue, then in the view of their Lordships each judge is a tribunal to which application can be made within the meaning of the rule and every judge must hear the application on the merits. It follows that, although by the Judicature Act the [English] Courts have been combined in the one High Court of Justice, each judge of that Court still has jurisdiction to entertain an application for a writ of habeas corpus in term time or in vacation, and that he is bound to hear and determine such an application on its merits notwithstanding that some other judge has already refused a similar application. The same principles must apply in the case of the judges of the Supreme Court of Nigeria." See Eshugbayi Eleko v The Officer Administering the Government of Nigeria (1928) 8 N.L.R. 1 at 6.

102 conditions as erroneous. The Governor acting under the Ordinance acts solely under executive powers, and in no sense as a Court. As the executive he can only act in pursuance of the powers given to him by law. In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice. And it is the tradition of British justice that judges should not shrink from deciding such issues in the face of the executive. . . . their Lordships cannot accept that the Courts of Nigeria are incapable of deciding the question whether the authority or control of a native is recognised by a native community. Compared with many justiciable issues with which the Courts of the Empire are from time to time faced, the question appears simple.'58

Once again, the matter was remitted to the Nigerian court for the application to be heard on the merits. The applicant had been in custody for six years already and would almost undoubtedly have been kept away even longer, given the unwillingness of the judiciary to oppose government policy, but for the new Governor, Sir Donald Cameron, who brought closure to the matter. He revoked the deportation order and restored the applicant to office. The "proceedings in the Eleko case after the first Privy Council appeal," it has been noted, "leave room for doubts in one's mind as to the independence of the colonial judiciary in this case. One has the impression of a judiciary that was unwilling to pry into the legality of an executive action perhaps out of deference to the

Executive, or simply out of excessive judicial self-restraint."159

158 [1931] A.C. 662 at 670. 159 Adewoye, supra note 21 at 264. Interestingly, soon after the acting Chief Justice refused the plaintiffs first application for habeas corpus (supra note 155), Thomas Horatius Jackson, one of the leaders of the African community in Lagos published in the Lagos Weekly Record of 19th and 26th Sept. 1925 respectively, two articles under the captions "A Great Constitutional Issue" and "The Dangers of the Judicial System of Nigeria." These articles argued that the decision of the ag. Chief Justice in this case as well as other cases in which the Government has been concerned show that the judges of the Supreme Court are under the subjection of the Executive, and will not and dare not give a decision unfavourable to the Government, and have been compelled to invent plausible arguments in order to be able to record

103 During the early years of the modern Supreme Court, practically all its judges had

previously served in the colonial Supreme Court. In the next chapter we shall discuss

how the transition from the old Supreme Court to the modern Court shaped the character

of the latter.

C. The Erosion of Institutional Legitimacy of African Courts

Over three decades ago, Donald Black lamented that the literature of jurisprudence shows little interest in the problem of mobilization, which is ironically, the very process by which a legal system acquires its cases. This is actually an

important factor in judicial performance, and no account of bill of rights regimes in sub

Saharan Africa will make sense without explaining why these regimes are severely under mobilized and what the implications of this are for the judicial protection of human rights.162

Adequate machinery for effective legal mobilization has yet to emerge in many of these countries. Official legal aid regimes are still rudimentary and grossly underfunded

decisions compatible with the wishes of the Executive. Mr. Jackson was convicted of contempt by the Court (Combe CJ) and committed to prison for two months. See R v. Thomas Horatius Jackson (1925) 6 N.L.R. 49. 160 D. Black, "The Mobilization of Law" (1973) 2 J. Leg. Stud. 125 at 127. 161 Ibid., at 126. In Chapter 4 we shall consider the problems of legal mobilization in greater detail from the perspective of the impact of legal policy in the context of the Supreme Court. 162 "The reluctance of citizens to mobilize the law," notes Black, "is so widespread, indeed, that it may be appropriate to view legal inaction as the dominant pattern in empirical legal life." Ibid., at 133. It is not necessary for our purpose to explain the mobilization of law in terms of Black's typology of reactive and proactive processes of mobilization, which, he claims, corresponds roughly with the division between private and public law. (If this typology was employed, since human rights litigation is usually at the instance of individuals and groups, hence "reactive," it could be classified along with private law cases.) A significance of this division however is that a "reactive legal system acts to reinforce the tendency of citizens to use law only as a last resort, since it allows citizens to establish their own priorities." Ibid, at 134. At the same time, it has been observed, mobilizing the law on one's own behalf even in a private dispute without any conscious political goal can be conceptualized as a form of political participation. See M.W Giles & T.D. Lancaster, "Political Transition, Social Development, and Legal Mobilization" (1989) 83 Am. Pol. Sci. Rev. 817 at 818.

104 in most cases. Although national human rights institutions exist today in almost every

country in Commonwealth Africa, it is only in South Africa that such institutions have been actively involved in litigation. Although human rights-advocacy groups have

become prominent in recent years in most of Africa, and many are involved in the provision of legal services, only a fraction is consciously pursuing litigation as a strategy for the promotion of human rights. At any rate, capacity for sustained litigation is generally lacking.163 In Claude Welch's study, enforcement through the national courts

system is a "rather limited strategy, [because] it faces significant obstacles in most

African states."164

The general reluctance to mobilize judicial remedies in Africa is particularly interesting because even the sector which, presumably, should be most disposed to deploy the bill of rights - the political opposition and special interest groups165 - have,

There are of course significant, albeit occasional, exceptions. For example, in Nigeria, Human Rights Law Service (HURILAWS) persistently litigated the constitutionality of the death penalty. It first brought the matter before the Supreme Court in Ogugu v. State [1994] 9 NWLR (Pt. 366) 1. For technical reasons, the Court declined to address the issue, but Chief Justice Mohammad Bello noted, "it is anticipated that the occasion for its determination is likely to be presented soon." HURILAWS again presented the opportunity soon thereafter: Kalu v. State [1998] 13 NWLR 531 (The Court held that the death penalty was not unconstitutional). A brief capability evaluation of Nigerian rights-advocacy organizations is undertaken in chapter 4 §4. 164 C.E Welch, Protecting Human Rights in Africa: Roles and Strategies of Non-Governmental Organizations (Philadelphia: University of Philadelphia Press, 1995) at 56. 165 [I]t seems likely that the experience of many . . . nations will document that political oppositions frequently judicialize politics by attempting to use the courts to harass and obstruct governments . . ." See Tate, supra note 82 at 31. See also A.L. Sweet, Governing -with Judges: Constitutional Politics in Europe (Oxford: Oxford University Press, 2000) at 55, 202 (". . . courts and opposition are connected to one another by a kind of judicializing transmission belt. . . . [I]f self interested individuals stop going to court, or if the court renders capricious decisions that fail to provide potential litigators with any normative guidance, then the politicization-judicialization dynamic will be blocked.") A good example of the potential impact of sustained interest-group litigation are the Jehovah's Witnesses cases in Canada in the 1950s. "It is important to recognise how much, practically, the state of Canadian constitutional law-in-action today is the product of the energies of a litigation-minded, and unpopular, minority pressure group like the Jehovah's Witnesses." See McWhinney, supra note 70 at 244.

105 until lately, at any rate, been hardly more disposed than the general populace to do so.

Among possible explanations is the intolerance of the government and ruling establishment in many of these countries. We have already seen the example of Nigeria in the 1960s, where challenging government action in court, otherwise constitutionally

1 fn legitimate, was considered confrontational by the Prime Minister.

Elsewhere in Africa, the situation was compounded by the progressive concentration of power in the executive168 or the ruling party,168a and the complementary weakening of the legislature,169 the transition to single-party states17 or withering of opposition political parties1703 and co-optation of civil society organizations,170b and the

1 The "Olawoyin cases" are a notable exception (two of which are included in Table 1 supra). J.O. Olawoyin, the leader of the Action Group opposition in Northern Nigeria in the 1960s actively resorted to litigation to challenge oppressive government policies. These cases are discussed in chapter 4 §4. 167 See supra note 125 and accompanying text. 168 See B.O. Nwabueze, Constitutionalism in the Emergent States (London: C. Hurst &Co., 1973) 131-79; Y. Ghai, "The Rule of Law, Legitimacy and Governance" (1986) 14 Int'l J. Soc. Law 179; H.W.O. Okoth-Ogendo, "Constitutions without Constitutionalism: Reflections on an African Paradox" in D. Greenberg, et al., Constitutionalism and Democracy: Transitions in the Contemporary World (New York: Oxford University Press, 1993) 65 at 74-78 It is very important to understand that there is a complex larger picture, because "in Africa, everything conspires against legality." See R.B. Seidman, "Constitutions in Independent, Anglophonic, Sub-Saharan Africa: Form and Legitimacy" (1969) Wis. L. Rev. 83 at 90 [emphasis added] [hereinafter Seidman, "Form and Legitimacy of Constitutions"]. For a detailed account of the origins and spread of presidentialism in Commonwealth Africa, B.O. Nwabueze, Presidentialism in Commonwealth Africa (London: C.Hurst & Co., 1977) at 58-103. For a case study of its impact on constitutional liberties, see N.M. Desai, "The Presidential System in Kenya: Does it Impede the Rights of the Accused, the Detained, and the Imprisoned?" (1999) 25 New Eng. J. on Crim. & Civ. Confinement 181. i68a ^njs was a naturaj resuit 0f prevalence of one-party regimes almost throughout Africa until the late 1980s and early 1990s. See infra, note 170. 169 See Nwabueze, Presidentialism, ibid., at 255-97. For instance, during the period of the Westminster parliamentary government in Nigeria (1960-1966), it has been remarked, "in general, the control exercised by the House of Representatives over the executive is negligible. .. .The House is not used as a forum where the major issues are decided or pronouncements of government policy made." See Mackintosh, supra note 72 at 113. The relatively very weak status of the legislature may be illustrated with the Bunge, or Parliament, of Tanzania, which was a one-party State from 1965-1992. See R.F. Hopkins, "The Role of the M.P. in Tanzania" (1970) 64 Am. Pol. Sci. Rev. 754; H. Kjekshus, "Parliament in a One- Party State - The Bunge of Tanzania, 1965-70" (1974) 12 J. Mod. Afr. Stud. 19. 170 Ibid., at 215-54. See generally W.A. Lewis, Politics in West Africa (Toronto: Oxford University Press, 1965). 170a See, e.g., the experience of Zimbabwe, discussed in C. Sylvester, "Wither Opposition in Zimbabwe" (1995) 33 J. Mod. Afr. Stud. 403.

106 preservation, and even constitutionalization, of odious colonial mechanisms of preventive

detention, internal 'deportation' (rustication) and collective punishment.171 These

consequences were generally the result of colonial socialization of the political elite in a

regime of bureaucratic authoritarianism and political repression.172 Indeed, "the simple

For government suppression of or interference in civil society organizations, see C.E. Welch, "The Right of Association in Ghana and Tanzania" (1978) 16 J. Mod. Afr. Stud. 639; N. Tenga & CM. Peter, "The Right to Organize as Mother of all Rights: the Experience of Women in Tanzania" (1996) 34 J. Mod. Afr. Stud. 143. 171 For a brief account of the colonial origin and post-colonial application of preventive detention legislation, see Nwabueze, Presidentialism, ibid., at 310-22. See also A.W.B. Simpson, "Round Up the Usual Suspects: the Legacy of British Colonialism and the European Convention on Human Rights" (1996) 41 Loy. L. Rev. 629. For example, under the Native Courts Regulations of 1897, the Commissioner for the East Africa Protectorate was empowered to detain or restrict the movement of any person subject to the Regulations he believed to be disaffected to the government, or was about to commit an offence against the regulations, or was otherwise conducting himself so as to be dangerous to the peace and good order of the protectorate. (There was no appeal against the Commissioner's exercise of this power, but he was required to report forthwith to the Foreign Secretary.) See Ghai & McAuslan, supra note 4 at 407-8. A very informative post-independence case study is J. Hatchard, Individual Freedoms & State Security in the African Context: the Case of Zimbabwe (Athens, Ohio: Ohio University Press, 1993). For a review of the government's disregard of the (neo-Nigerian) Declaration of Rights in the 1961 Constitution of Southern Rhodesia (pre-independent Zimbabwe) when exercising power to detain persons under the Law and Order (Maintenance) Act 1960 see C. Palley, supra note 4 at 569-71. By the late 1980's there were almost forty countries in sub Saharan Africa that had, or have had, preventive detention legislation, and in many cases, in spite extant constitutional protection of personal liberty. Nigeria, except during the military dictatorships, was an exception. But even there the Prime Minister unsuccessfully proposed the introduction of a preventive detention regime at an All Party Constitutional Conference in Lagos in July 1963. See Mackintosh, supra note 73 at 43-44. The Justice Francis Nyalali Commission, instituted by the government of Tanzania in 1991 to identify existing legislation that were incompatible with the country's bill of rights, reported over forty such oppressive laws, many of which were originally colonial legislation: Area Commissioners Act, 1962; Collective Punishment Ordinance, 1921; Corporal Punishment Ordinance, 1930; Deportation Ordinance, 1921; Expulsion of Undesirables Ordinance, 1930; Government Proceedings Act, 1967; Preventive Detention Act, 1962; Regions and Regional Commissioners Act, 1962; Resettlement of Offenders Act, 1969; Societies Ordinance, 1954; Stock Theft Ordinance, 1960; Townships (Removal of Undesirable Persons) Ordinance, 1954; Witchcraft Ordinance, 1928; Registration and Identification of Persons Act, 1986; Economic and Organized Crime Control Act, 1984; Human Resources Deployment Act, 1983; Emergency Powers Act, 1986. See Peter, Human Rights in Tanzania, supra note 12a at 17-18. It is interesting that the Deportation Ordinance was the first legislation declared unconstitutional when the bill of rights became operative. See Chumchua s/o Marwa v. Officer i/c of Musoma Prison & anor (Mwalusanya J) (unreported), reproduced in full in Peter, ibid, at 635-45 172 "...the colonial state during its phase of construction in most cases created entirely novel institutions of domination and rule. Although we commonly described the independent polities as 'new states,' in reality they were successors to the colonial regime, inheriting its structures, its quotidian routines and practices, and its more hidden normative theories of governance. Thus, everyday reason of state, as it imposed its logic on the new rulers, incorporated subliminal codes of operation bearing the imprint of their colonial predecessors." C. Young, The African Colonial State in Comparative Perspective (New Haven:

107 fact," as J.S. Coleman put it, "is, of course, that none of the colonial powers intended to create modern self-governing democratic states in Africa."173 In the circumstances of post-colonial Africa therefore,

the role of constitutions and laws becomes totally instrumental, unmediated by autonomous processes and procedures. Law itself becomes a commodity that only the state may mobilize and manipulate. The government thinks it is dangerous to allow dominated groups any purchase on the law, except as part of careful stage management. In these circumstances it becomes impossible to secure the enforcement of rights and freedoms.174

There is, however, an additional factor - the legitimacy-conferring function of courts. The most pertinent reason why the opposition generally distrusted the judiciary is the fear, not simply of the likelihood that the courts would not rule against the government, but the even more dangerous consequence of the ruling actually lending legitimacy to official policy.175 As Mark Tushnet has argued, as a practical political matter, there is a "difference between a decision saying that the police can do whatever

Yale University Press, 1994) at 283. See also E. Conteh-Morgan, Democratization in Africa: the Theory and Dynamics of Political Transitions (Westport: Praeger, 1997) at 57 ("The process of power concentration and centralization of authority could in fact be viewed as a continuation of the colonial style of administration"). On the indigenat regime in Francophone Africa, enabling district administrators to punish summarily any violation of colonial regulations, see A.I. Asiwaju, "Control through Coercion: a Study of the Indigenat Regime in French West Africa Administration, 1887-1946" (1979) 41 Bulletin de 1'IFAN 35; Reyntjens, supra note 140 at 67-73; Young, ibid, at 154-55. On the colonial legacy generally, see M. Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton, N.J.: Princeton University Press, 1996) c. il-V. 173 J.S. Coleman, "The Character and Viability of African Political Systems, in Nationalism and Development in Africa: Selected Essays (Berkeley: University of California Press, 1994) 85 at 93. 174 Ghai, supra note 56 at 238. 175 See C.A. Odinkalu, "The Judiciary and the Legal Protection of Human Rights in Common Law Africa: Allocating Responsibility for the Failure of Post-Independence Bills of Rights" (1996) 8 ASICL Pro. 124. Also, in East Africa, judicial reticence and a habitual refuge in technicalities has undermined the bills of rights. See Kabudi, supra note 52 at 338. However, what Odinkalu calls "the enthusiastic abdication of judicial responsibilities" (ibid, at 137) is an observation that does not take seriously the institutional inadequacies of the judiciary that compelled routine avoidance of confrontation with the executive. See also, T.I. Ogowewo, "Self-Inflicted Constraints on Judicial Government in Nigeria" (2005) 49 J. Afr. L. 39 at 45 (alleging "judicial corruption," because judges are "accomplices to unconstitutional usurpations and the evidence of their guilt is furnished by the very decisions they gave.")

108 they want because we do not have a bill of rights, and one saying that the police activity

was consistent with the bill of rights we have. The latter decision might send a signal to

the public - or to informed observers - not merely that the police activity was not

1 n/: prohibited, but that it was quite all right." In Nigeria, for example, the leaders of the

177 1 7R opposition Action Group and Dynamic Party had first-hand experience that even

they could not count on the courts to avail them the full protection of the fundamental

rights guarantees in the Independence Constitution when criminal proceedings were

brought against them. How then could they be expected to seriously consider pursuing their political goals through the courts? Examples abound elsewhere in Africa.

Kenya provides a particularly apt illustration.179 Ghai and McAuslan report that, as far as the bill of rights in the 1960 Constitution is concerned, "it is difficult to trace a

single case in which the Bill was successfully invoked." Similarly, the extant bill of rights "has had almost no impact on the constitutional, legal and administrative systems. .

. . The attitudes of the courts have meant that recourse to courts for protection is rarely

M. Tushnet, "Living with a Bill of Rights" C. Gearty & A. Tomkins, Understanding Human Rights (London: Mansell, 1996) 3 at 5. For a critical perspective on judicial legitimation of politics, see D. Kennedy, A Critique of Adjudication (fin de siecle) (Cambridge, Mass.: Harvard University Press, 1997) c. 10. 177 SeeSklar, supra note 150. 178 Supra, note 60 and accompanying text. 179 See Ghai, supra note 56; Ghai & McAuslan, supra note 4 at 413-30; G.K Kuria & A.L. Vazquez, "Judges and Human Rights: the Kenya Experience" (1991) J. Afr. L. 142; G.K Kuria & J.B. Ojwang, "Judges and the Rule of Law in the Framework of Politics: the Kenya Case" [1979] Pub. L. 254; Ojwang & Otieno-Odek, supra note 75; Desai, supra note 168; S.D. Ross, "The Rule of Law and Lawyers in Kenya" (1992) 30 J. Mod. Afr. S. 421; M. Mutua, "Justice under Siege: the Rule of Law and Judicial Subservience in Kenya" (2001) 23 Hum. Rts. Q. 96; D.S. Days, et al., Justice Enjoined: the State of the Judiciary in Kenya (New York: R.F. Kennedy Memorial Center for Human Rights, 1992); S.B.O. Gutto, "Constitutional Law and Politics in Kenya since Independence: a Study in Class and Power in a Neo- Colonial State in Africa" (1987) 5 Zimb. L. Rev. 142; S.D. Mueller, "Government and Opposition in Kenya, 1966-9" (1984) 22 J. Mod. Afr. Stud. 399; M. Mutua, "Human Rights and State Despotism in Kenya: Institutional Problems" (1994) Africa Today 50. 180 Ghai & McAuslan, ibid at 413.

109 sought." In Kaggia v. Republic, for example, the vice-president of the opposition

Kenya People's Union was charged under the Public Order Act (Cap. 47) with holding an unlawful meeting. The facts were that he had made a speech at the opening ceremony of a sub-branch office of the party. The speech was interrupted on the order of the provincial administration and the crowd ordered to disperse. Both Mr. Kaggia and his supporters promptly complied. He was nonetheless charged with the offence, found guilty and sentenced to six months imprisonment. Neither the trial nor the appeal court considered the relevance of the constitutional guarantee of the freedom of assembly and association.

Kuria and Ojwang are thus correct to argue that, "the question surely ought to have been raised as to whether or not there were any precise reasons of public order, public safety, public morality, etc., which should have taken supremacy over the right to assemble and associate with party colleagues."

The apotheosis of formalistic decision-making under the Kenya Bill of Rights was the decision,182 a quarter century after the bill of rights came into force, that the recourse provision (section 84) was inoperative, since the Chief Justice was yet to make rules regulating the enforcement process as required by the provision.183 Thus, practically for

See Ghai, supra note 56 at 187, 236. Also, Siri Gloppen has observed, "[d]uring 38 years of independence, Zambian courts have rarely delivered decisions that significantly inconvenience the sitting government by seeking to check its abuse of powers, failures to deliver on obligations, attempts to undermine the constitutional rules of the game or to overstep the mandate." See S. Gloppen, "The Accountability Function of the Courts in Tanzania and Zambia" (2003) 10:4 Democratization 112 at 118. 182 Kamau Kuria v. Attorney General (1989) 15 Nairobi Law Monthly 33 (Miller CJ, High Ct., Mis. Civil Appl. #550 of 1988); Maina Mbacha v. Attorney General (1989) 17 Nairobi Law Monthly 38 (Dugdale J, High Ct., Mis. Civil Appl. #356 of 1989). Both cases are the subject of Kuria & Vazquez, supra 179. See also Ghai, ibid, at 221 -23. 183 This was a radical departure from the path of established precedents within the Commonwealth. For example, the Supreme Court of Nigeria much earlier on took the very progressive position that in the absence of facilitative rules for activating particular constitutional remedies, litigants may proceed with the most expeditious processes. See Fajinmi v. Speaker, Western House of Assembly [1962] 1 All NLR 205,

110 the most part, the bill of rights was no longer enforceable.184 Not surprisingly, this

decision arose in cases directly challenging government policy (the confiscation of an

opposition lawyer's passport, and a charge of creating a disturbance likely to lead to

breach of peace, which arose from an allegation of election rigging by the government.)

As Ghai observes,

It is hard to resist the conclusion that [Justices] Miller's and Dugdale's interpretations were inspired by a wish to deny the plaintiffs the opportunity to assert rights and to avoid embarrassment to the government. . . . The procedure adopted meant that these issues could not be litigated, and the government was free to carry on with its previous practice.185

[1962] SCNLR 300. Also, specifically on the enforcement of fundamental human rights under the Nigerian Constitution, this approach was stated explicitly at the outset by the High Court of Western Nigeria: Aoko v Fagbemi [1961] 1 All NLR 400. Indeed, in Nigeria, the Fundamental Rights (Enforcement) Rules were made only in 1979 (operative in 1980). Even with rules finally in place, the Supreme Court of Nigeria has held that litigants are nonetheless entitled to elect to proceed under the statutory process or at common law. See Ogugu v. State [1994] 9 NWLR (pt. 366) 1 (S.C.). The Privy Council established the same policy in Jaundoo v. Attorney General of Guyana [1971] AC 972 (P.C.). Indeed, until the Kuria decision was handed down, Kenyan High Court had on several occasions followed the principle in Jaundoo. As late as the previous year, that Court, iwRaila Odinga v. Attorney General (Misc. Civil Appl. #104 of 1986), approved the principle stated in Jaundoo. Unfortunately, as Kabudi has reported, "since Chief Justice Miller's judgment [Kuria], a number of judges in the High Court of Kenya have dismissed applications of enforcement of the Bill of Rights on the pretext that s. 84 was 'inoperative' and therefore, the court lacks jurisdiction to hear the matter." See Kabudi, supra note 52 at 330. Fortunately, this development appears confined to Kenya. In the 1990s, the courts in Tanzania, for example, had no difficulty in resolving the question whether they could lawfully exercise jurisdiction to enforce the bill of rights absent an Act of Parliament providing for procedure regulating such proceedings, as required by art. 30(4) of the Constitution. Mwalusanya J declared, "it is not necessary to have such rules in order to enforce the Bill of Rights. The enforcement may be done by application in the form of habeas corpus, mandamus, prohibition, certiorari, declarations and even an application for bail...." On appeal, the Court of Appeal stated, "we also concur that until Parliament legislates under para (4) [of art. 30] the enforcement of the basic rights, freedoms and duties may be effected under the procedure and practice that is available in the High Court in the exercise of its original jurisdiction, depending on the nature of the remedy sought." See D.P.P. v. Pete [1991] LRC (Const) 553 at 561 (Nyalali CJ, Makame and Ramadhani JJA). See also Ephrahim v. Pastory & anor [1990] LRC (Const.) 757 (Mwalusanya J). 184 Ghai has, however, indicated subsidiary means of enforcement. See Ghai, supra note 56 at 221. 185 Ibid., at 222-23.

Ill The Ghana Republican Constitution of 1960 did not include a formal bill of rights. Instead, section 13(1) simply required the President upon assumption of office to declare his adherence to certain stated fundamental principles, including the following:

That freedom and justice should be honoured and maintained. That no person should suffer discrimination on grounds of sex, race, tribe, religion or political belief. That subject to such restrictions as may be necessary for preserving public order, morality or health, no person should be deprived of freedom of religion, of speech, of the right to move and assemble without hindrance or of the right of access to courts of law.

In re Akoto,m the fledging Supreme Court187 of Ghana was confronted, inter alia, with a constitutional challenge to the Preventive Detention Act,188 under which the applicants were purportedly held. Their application to the High Court for writs of habeas corpus was refused. In the Supreme Court, it was argued on their behalf that the Act is in excess of the powers conferred on Parliament by the Constitution with respect to article 13(1), or is contrary to the solemn declaration of fundamental principles made by the President on assumption of office. It was submitted that the provisions of article 13(1) constituted an implied bill of rights.189 The Court was unwilling to accept this, preferring instead to give the provision no greater weight legally than the Coronation Oath in England.

186 [1961] Ghana L.R. 523. On which, see Amissah, supra note 80 at 170-78; S.O. Gyandoh, "Principles of Judicial Interpretation of the Republican Constitution" (1966) 3 U.Ghana L.J. 37. Cf. F.A.R. Bennion, The Constitutional Law of Ghana (London: Butterworths, 1962) 142-43 (supports the decision). 187 Under the Republican Constitution, from 1 July 1960, appeals to the Privy Council were abolished, and a new Supreme Court was created. But most of the judges of this Court including the Chief Justice were drawn from the former Court of Appeal. Akoto was decided on 28 August 1961. 188 Although the Preventive Detention Act (No. 17 of 1958) was enacted by Parliament under the Ghana Constitution Order in Council, S.I. 277 of 1957, it was validated for the purposes of the Republican Constitution by the Constitution (Consequential Provisions) Act (8 & 9 Eliz. 2, c. 41 (U.K.)). 189 For the full arguments, see S.O. Gyandoh & J. Griffiths, A Sourcebook of Constitutional Law of Ghana (Legon: Faculty of Law, University of Ghana, 1972) at 160-82.

112 The suggestion that the declaration by the President on the assumption of office constitutes a 'Bill of Rights' in the sense in which the expression is understood under the Constitution of the United States of America190 is therefore untenable. ...It will be observed that Article 13(1) is in the form of a personal declaration by the President and is in no way part of the general law of Ghana. In other parts of the Constitution where a duty is imposed the word 'shall' is used, but throughout the declaration the word used is 'should.' In our view the declaration merely represents the goal which every President must pledge himself to attempt to achieve. It does not represent a legal requirement which can be enforced by the courts. On examination of the said declarations with a view to finding out how any could be enforced, we are satisfied that the provision of Article 13(1) does not create legal obligations enforceable by a court of law. The declarations impose on every President a moral obligation, and provide a political yardstick by which the conduct of the Head of State can be measured by the electorate. The people's remedy for any departure from the principles of the declaration is through the use of the ballot box, and not through the courts.191

Only three pages of the Court's opinion covered the constitutional issues. But the result was that the Court had effectively legitimized what was soon to become a horrendously repressive regime. A junior counsel for the government in the case has lamented in retrospect that, "the Supreme Court in the Akoto not only abandoned the whole area of personal liberty as a field for judicial supervision but also proclaimed that

190 It would definitely have made more sense for the Court to use the analogy, not of a formal bill of rights, like the United States, but an implied bill of rights, such the approach of the Supreme Court of Canada in the 1950s. See I. Bushnell, The Captive Court: A Study of the Supreme Court of Canada ( & Kingston: McGill-Queen's University Press, 1992) at 312-21. The Supreme Court of Ghana has recently admitted that "in 1961 in the Akoto case [the] Court missed the opportunity to designate article 13 of the Constitution, 1960 as a Bill of Rights." See New Patriotic Party v. Inspector-General of Police [1993-94] 2 Ghana L.R. 459 at 505. 191 [1961] Ghana L.R. 523 at 534-35.

113 no fundamental right of the citizen was protected by the Constitution. ...After the... ruling, there was no real check on the Government's operation of the Act."

The three countries of southern Africa with a former white minority ruling elite -

Namibia, South Africa, and Zimbabwe - stand apart almost from the rest of Africa, as there has been a greater mobilization of judicial remedies. The critical relevance of mobilization for enhancement of institutional capacity of the judiciary is borne out by the experience of each of these countries. During independence negotiations in these countries, the entrenchment - non-amendatory in the case of Namibia193 - of a constitutional bill of rights was vigorously championed by the former racial minority ruling elite. On the surface, South Africa would appear to be a special case, unlike no other in Africa, because the Constitutional Court, as we have noted, is imbued with extraordinary constitutional authority. But the same cannot be said for judicial power under the Constitutions of Zimbabwe and Namibia, which is comparable to what is provided for, for example, in the Nigerian Constitution. Why then has the Supreme Court of Zimbabwe been a far more significant policy maker than the Nigerian Court? The reason is obvious. The groups forced to surrender formal political power as a result of

Amissah, supra note 80 at 175,176. See also E.V.O. Dankwa & C. Flinterman, "Judicial Review in Ghana" (1977) 14 U. Ghana L.J. 1 at 21 ("The Supreme Court, by its decision, in Re Akoto could be held partly responsible for helping to create the dictatorial regime that the Nkrumah regime of the sixties was acknowledged to have been"). For Uganda, see Oloka-Onyango, supra note 75. Cf. Martin-Ghai debate on the Matovu case {Uganda v. Commissioner of Prisons, ex parte Matovu [1966] E.A. 514): R.B. Martin, "In the Matter of an Application by Michael Matovu" (1968) 1 Eastern Afr. L.R. 61-67; Y.P. Ghai, "Matovu's Case: Another Comment" ibid at 68-75. For Tanzania, see Katende & Kanyeihamba, "Legalism and Politics in East Africa," supra note 52 (discussing two cases). 193 See Namibia Const., art. 131: "No repeal or amendment of any of the provisions of Chapter 3 hereof, in so far as such repeal or amendment diminishes or detracts from the fundamental rights and freedoms contained and defined in that Chapter, shall be permissible under this Constitution, and no such purported repeal or amendment shall be valid or have any force or effect."

114 democratization have resorted to the courts as a forum for politics, thereby empowering the courts.

The Lancaster House-negotiated independence Constitution of Zimbabwe contained entrenched provisions that were designed to forestall any diminution of the social and political power of the minority white elite. The most significant of these was that twenty of the hundred-seat House of Assembly were to be elected exclusively by voters on the white roll (whites, mixed-race or "coloured," and Asians). This provision, which was unalterable until after at least seven years, naturally gave a racial minority, only two per cent of the population, grossly disproportionate representation.194 Also, the neo-Nigerian Declaration of Rights, which was entrenched in the Constitution, could not be altered until after ten years.

As expected, the white roll seats in Parliament were promptly abolished by constitutional amendment soon after the seven-year period.195 There was now a common electoral roll for the country. The unfortunate result was a progressive concentration of power in the ruling party. The twenty seats transferred from the old white roll, now reserved for nominated members representing interest groups, were all won by the ruling party, ZANU(PF), thus giving it a strong majority in Parliament. Shortly thereafter, the

There was also a similar ratio of white roll seats in the Senate. In the white roll elections of 1980, the former white minority ruling party, the Rhodesia Front not surprisingly won all twenty seats. See generally, J. Hatchard & P. Slinn, "Toward an African Zimbabwean Constitution?" [1988] Third World L. S. 119; W. Ncube & S. Nzombe, "The Constitutional Reconstruction of Zimbabwe: Much Ado about Nothing?" (1987) 5 Zimb. L. Rev. 2. Donald Horowitz has however remarked, "group rights provide too much - benefits that are disproportionate and are, on that account, unlikely to survive. And, in the second respect, group rights provide too little, for they do not aim at minority participation at the seat of power. The overrepresentation of Whites in the 1980 Constitution of Zimbabwe had both of these vices." D.L. Horowitz, A Democratic South Africa: Constitutional Engineering in a Divided Society (Berkeley: University of California Press, 1991) at 136. 195 See Constitution of Zimbabwe Amendment Act, No. 6 of 1987.

115 main opposition party, PF-ZAPU merged with the ruling party. Next, the Constitution

was again amended to establish the office of Executive President, to be popularly elected

for a term of six years, with no limit on re-election.196

At the point when the ruling party's grip on politics had become completely

unassailable, the judiciary opened up as a forum for confrontation. The judiciary of the

old regime, it must be remembered, was practically incorporated wholesale in the new

democratic order.197 The judiciary was hence as anxious as the remainder of the old

ruling white elite to restrain government power, and in particular, as Hatchard and Slinn

have noted, several judges, including the Chief Justice, have a history of political

opposition to the ZANU(PF) in the course of the long, bloody struggle for democratic rule.1 8 Before long, almost every aspect of government policy, from criminal justice,199

See Constitution of Zimbabwe Amendment Act, No. 7 of 1987. 197 Under the 1980 Constitution, s, 24, the Supreme Court is vested with original jurisdiction with respect to the Declaration of Rights. The High Court, and the inferior courts, may refer such issues to the Supreme Court at the request of the parties or so motu (s.24(2)). The Constitution prescribes that the Supreme Court shall comprise of a Chief Justice and at least two associate justices. In practice, when the Court sits as a constitutional court, including the exercise of its original jurisdiction under the Declaration of Rights, it usually sits as a full bench of five judges. The Chief Justice is also the constitutional head of the High Court, which comprises additionally a Judge President and a number of judges (twenty-three in 2001). In practice, however, the Judge President is in charge of the High Court, subject to the directions of the Chief Justice. 198 See Hatchard & Slinn, supra note 194 at 131. 199 State v. Ncube [1987] 2 Zimb. L. Rep. 246, 1988 (2) SA 702 (whipping of a male offender is an unconstitutional punishment); State v. A Juvenile 1989 (2) Zimb. L. Rep. 61, 1990 (4) SA 151 (moderate correction by whipping of a juvenile is unconstitutional); Conjwayo v. Minister of Justice and the Director of Prisons [1991] 1 Zimb. L. Rep. 105, 1992 (2) SA 56 (prison regulations requiring strict confinement of death row prisoners are unconstitutional); Catholic Commission for Justice and Peace in Zimbabwe v. Attorney General [1993] 1 Zimb. L. Rep. 242, 1993 (4) SA 239 (execution of a sentence of death is unconstitutional where there is prolonged delay); Wood v. Minister of Justice, Legal & Parliamentary Affairs 1995 (1) SA 703 (prison regulation permitting an inmate to write and receive only one letter every four weeks was a violation of the freedom of expression).

116 public order, and preventive detention to economic policy, was successfully

challenged as violations of the Declaration of Rights.

The orientation of the Supreme Court was that of an autonomous, powerful

institution countervailing political power. Former Chief Justice Anthony Gubbay stated

this, ex cathedra, as imperative:

A justiciable declaration of rights can protect and enforce fundamental human rights only if the highest court in the land is powerful enough, and independent enough, to proscribe all attempted infringements thereof. This is true whether they be executive, administrative, or legislative in origin.2

It is certainly indicative of the Court's perception of its power and independence that it has been very willing to apply international law in decision-making. Indeed,

Gubbay had advocated that all international and regional instruments embodying human rights norms broadly accepted by the international community, even if unratified by

Zimbabwe, should be incorporated into domestic jurisprudence by judicial

204 interpretation.

200 In re Munhumeso [1994] 1 Zimb. L. Rep. 49, 1995 (1) SA 551 (the Court struck down a provision of the Law and Order Maintenance Act that allowed the police to prohibit persons from taking part in a procession unless prior permission was obtained); Minister of Home Affairs v. Bickle [1983] 2 Zimb. L. Rep. 400, 1990 (2) SA 245 (declaring unconstitutional, in the absence of war, regulations enabling the confiscation of property of persons deemed by the Minister of Home Affairs to be an enemy of the state). 201 Minister of Home Affairs v. Austin [1986] 1 Zimb. L. Rep. 240, 1986 (4) SA 281 (setting aside detention orders where all the material facts and particulars that form the foundation of the detention have not been furnished to the detainee). 202 Commissioner of Taxes v. C. W. (Pvt) Ltd. [1989] 3 Zimb. L. Rep. 361, 1990 (2) SA 245 (striking down a regulation in the Capital Gains Tax, 1981); Law Society of Zimbabwe v. Minister of Finance 2000 (2) B. Const. LR 226 (holding unconstitutional a Capital Gains Withholding Tax statute); Retrofit (Pvt) Ltd. v. Posts & Telecomm. Corp 1995 (9) B. Const. LR 1262 (declaring as an unconstitutional abridgment of the freedom of expression, a provision in the Post and Telecommunication Services Act vesting in the state- owned Posts and Telecommunications Corporation an exclusive monopoly to provide telecommunication services within, into, and from Zimbabwe). 203 A.R. Gubbay, "The Protection and Enforcement of Fundamental Human Rights: the Zimbabwean Experience" (1997) 19 Hum. Rts. Q. 227. 204 Ibid, at 233

117 The government's reaction initially was frequent resort to constitutional amendment, to reverse or sometimes pre-empt adverse judicial decisions. But the

Supreme Court was simply unrelenting.207 For example, even after Parliament had amended the Constitution in 1991,208 to forestall any constitutional challenge to execution by hanging, the Supreme Court, two years later, commuted the sentences of two inmates on the death row on the ground that prolonged delay in carrying out the sentences was a contravention of the right to life under the Declaration of Rights.2 9 This immediately prompted a further constitutional amendment.21

Although the government usually complied with judicial decisions,211 the

President has been known to warn that "judges should not interfere with Parliament's

See Constitution of Zimbabwe Amendment (No. 11) Act, 1990 (reversing Ncube, supra note 199); Constitution of Zimbabwe Amendment (No. 13) Act, 1993 (reversing the Catholic Commission case, supra note 199); Constitution of Zimbabwe Amendment (No. 14) Act, 1996 (reversing Rattigan v. Chief Immigration Officer 1995 (2) SA 182, 1995 (1) B. Const. LR 1; and Salem v. Chief Immigration Officer 1995 (4) SA 280, 1995 (1) B. Const. LR 78). 206 Amendment (No. 11) Act was partly intended to pre-empt decision in a case in which the Supreme Court had requested full arguments on the issue of whether the use of hanging constituted inhuman and degrading treatment. See J. Hatchard, '"Perfecting Imperfections:' Developing Procedures for Amending Constitutions in Commonwealth Africa" (1998) 36 J. Mod Afr. Stud. 381 at 385. "The introduction of this ouster provision," noted Chief Justice Gubbay, "completely pre-empted the proposed judicial activism." See Gubbay, supra note 203 at 238. 207 Indeed, according Gubbay CJ, "the Parliament of Zimbabwe's practice of amending provisions of the Declaration of Rights whenever it is of the opinion that the judgment of the Supreme Court in respect thereof is wrong or simply unacceptable, represents a basic departure from the principle of the rule of law. It also negates the essential place of the Declaration of rights as a specially entrenched part of the Constitution." See Gubbay, supra note 203 at 243. He appeared quite disposed to deploying the Indian "essential features" doctrine to check Parliament's use of the amendatory power, and even anticipated the possibility of the doctrine being raised before Zimbabwean courts. Ibid., at 252. For Tanzania's experience with government disregard or purported amendment/ revalidation of legislation declared unconstitutional and void by courts, see Peter, Human Rights in Tanzania, supra note 12a at 747-48. 208 Supra note 205. 209 Catholic Commission supra note 199. 210 Supra note 205. 211 See Gubbay, supra note 203 at 242.

118 political decisions and those judges unhappy with laws passed should quit."212 The

Attorney General and the Minister of Justice, Legal and Parliamentary Affairs have also

been highly critical of the involvement of the courts in policy making.213 Things finally

came to a head in 2001 with the frustration of the government's land redistribution policy

by the Supreme Court.214 The government reacted very strongly, not only disobeying

court rulings but also forcing the resignation of Chief Justice Gubbay.215

In Namibia, the Supreme Court has also been very active in the policy domain,216

See A. Samnoy, "Zimbabwe," in B. Andreassen & T. Swinehart, eds., Human Rights in Developing Countries Yearbook 1991 (Oslo: Scandinavian University Press, 1992) 380 at 405. 213 Following the Catholic Commission case, supra note 199, the Attorney General remarked, "the Supreme Court judgment . . . represents a determined, unashamed and blatant move by the judiciary to usurp powers which under our Constitution are vested in the Executive .... The Supreme Court arrogates itself the executive power of the prerogative of mercy without sound basis for doing so." See M.G. Bochenek, "Compensation for Human Rights Abuses in Zimbabwe" (1995) 26 Colum. Hum. Rts L. Rev. 483 at 522n. During debate of the 11th Amendment in Parliament, the Minister of Justice, Legal and Parliamentary Affairs stated that the abolition of the death penalty was a matter for the executive and legislature, and that "government will not and cannot countenance a situation where the death penalty is de facto abolished through the back door..." See Hatchard, supra note 206 at 386. More recently, during the land reform crisis, Justice Minister Patrick Chinamasa is reported to have said, the judiciary has earned itself the "notoriety that it constitutes the main opposition to the ruling party." See the Daily Mail & Guardian (25 January 2001). 214 Commercial Farmers Union v. Minister of Lands, Agriculture and Resettlement & Ors 2001 (3) B. Const. LR 197 (declaring unconstitutional the official programme of land reform). See G.J. Naldi, "Constitutional Challenge to Land Reform in Zimbabwe" (1998) 31 CILSA 78. 215 Godfery Chidyausiku, the Judge President of the High Court and former attorney general, replaced Gubbay as chief justice. Until this appointment, the three most senior judges in the Supreme Court were non-blacks. For a detailed account of the judicial crisis, see International Bar Association, Report of Zimbabwe Mission 2001 online: < http://www.ibanet.org/pdf/final reportl .pdf> (date accessed: 21 May 2001). 216 See generally, N. Steytler, "The Judicialization of Namibian Politics" in Tate & Vallinder, supra note 82 at 485-511. As was the case with South Africa subsequently, in Namibia, the Constituent Assembly was constrained by a set of pre-determined "constitutional principles," which, inter alia, included a commitment to include in the constitution a justiciable bill of rights. For discussion, see M. Wiechers, "Namibia: The 1982 Constitutional Principles and their Significance" in D. van Wyk, M. Wiechers & R. Hill, Namibia: Constitutional and Legal Issues (Pretoria: VerLoren van Themaat Centre for Public Law Studies, 1991) c. 1, and Steytler, ibid., at 486-94. It is noteworthy, however, that the bill of rights in pre- democratic Namibia (the State President's Proclamation No. 101 of 17 June 1985, add.) did not have a great impact on judicial decision-making. See S.M. Geary, "A Bill of Rights as a Normative Instrument: Southwest Africa/Namibia 1975-1988" (1988) XXI CILSA. 291, G. Capenter, "Pre-Independence Namibia: Conscription and Human Rights" (1988/89) 14 S. Afr. Y.B. Int'l L. 157. In contrast, at the outset of majority rule, the Supreme Court was able to deploy the independence Constitution's bill of rights for a milestone intervention in public policy. See ex parte Attorney-General, Namibia: in re Corporal

119 but it is yet to reach the level that generated the backlash in Zimbabwe. At the time of

independence, Kenya also had an elite racial minority for whose protection the

constitutional guarantees were partly intended.217 In addition, racial minorities and

expatriates dominated the judiciary and bar. Why then was the judiciary never willing, or

seemingly able, to intervene in national policy? The explanation involves an interesting

combination of factors. In the first place, the Asian and European community in Kenya,

unlike the Whites in southern Africa, were not politically organized. Indeed, organizing

as an opposition may have endangered their unrestricted control of the economy. In any

case, as Ghai and McAuslan reported in the 1970s, when the legal profession was still

dominated by Europeans and Asians, the legal elite was not directly impacted by the violation of human rights, as black Africans were usually the victims. The bar was

instead strongly oriented towards commercial practice, and this did not mix well with politics.218 A shift to a more politically active bar started only in the early 1980s, with

increased African presence at the bar. By the late 1980s, this shift had become decisive.219 But this has yet to result in a commensurate change in human rights decision

Punishment by Organs of Stale 1991 (3) SA 76 (NmS) (unconstitutionality of corporal punishment). See also Namunjepo & ors v. Commanding Officer, Windhoek Prison 2000 (6) B. Const. LR 671 (NmS) (use of leg irons and chains to restrain prisoners is unconstitutional). For a discussion of the early cases by the Chief Justice of Namibia, see G.J.C. Strydom, "A Bill of Rights and 'Value Judgments' vs. Positivism: the Namibia Experience" in J. Kruger & B. Currin, eds., Interpreting a Bill of Rights (Kenwyn: Juta & Co., 1994) 94. 217 The British government pre-empted the issue becoming controversial by declaring its "firm view" that Kenya needed a justiciable bill of rights. See Report of the Kenya Constitutional Conference Cmnd. 960 (1960) at 9. See also Simpson, supra note 2 at 872. 218 Ghai & McAuslan, supra note 4 at 401-2. 219 See Ross, supra note 179 at 435-38, Ghai, supra note 56 at 230-31, and Y.P. Ghai, "Law and Lawyers in Kenya and Tanzania: Some Political Economy Considerations" in C.J. Dias, et al., Lawyers in the Third World: Comparative and Developmental Perspectives (Uppsala and New York: Scandinavian Institute of African Studies/ International Center for Law and Development, 1981) 144-76. By 1987, more than 80 per cent of the practicing lawyers in Nairobi were Africans. See J.B. Ojwang & D.R. Salter, "Legal Education in Kenya" (1989) 33 J. Afr. L. 82.

120 making by the judiciary. "[W]hile a group of lawyers carried on a valiant fight for human

rights in courts, their victories were few and generally insubstantial."220

The reason why the impact of these lawyers has been marginal is the

unreceptiveness of the judiciary, as elsewhere in sub Saharan Africa, to legal challenges of government policy. The peculiar case of Kenya's almost extraordinary judicial reticence is partly the natural result of what Makau Mutua has characterized as a culture of judges thinking "like civil servants and ruling party stalwarts,"221 fostered by an enduring crisis of judicial independence. The security of judicial tenure has been severely compromised by the institutionalization of contract appointments. This practice of appointing non-Kenyan, mainly British,222 contract judges, or "hired guns who need no encouragement to do the government's bidding,"223 was introduced by the founding

President, Jomo Kenyatta, during whose fifteen-year rule only one black Kenyan judge

Ibid., at 231. Ghai maintains that the strategy of these lawyers was merely using human rights for overtly political agitation. Their goal was political. "[W]hile some lawyers continued to use the courts for legal challenges (including the very legality of the one-party system), they now used many different fora and took to holding press conferences. They tackled a much broader set of issues, particularly those connected to electoral abuses and the suppression of political dissent and debate. Soon a multi-party democracy became their rallying cry. They sought alliances with other like-minded groups, especially among religious denominations, and made astute use of the media. Lawyers became the most active of government's opponents. They made skilful use of the courts at a time when no forum was available to protest government policies (in the full knowledge that a coterie of judges would thwart their efforts to challenge violations of rights). They succeeded in raising public consciousness of the issues and of the oppressive practices of the Government." Ibid., 230-31. See also, S.D. Ross, supra note 179. 221 Mutua, supra note 179 at 113. 222 Recruitment is facilitated by funding from the British Overseas Development Administration (ODA). 223 Mutua, supra note 179, at 108. See also, Days, et al., supra note 179 at 23-27. Africa's experience with expatriate judges has been less than satisfactory, especially in public law. Writing in the 1970s, Professor Nwabueze observed, "the predominance of expatriate judges in the superior courts in Commonwealth Africa has tended to produce a certain amount of judicial passivity. An expatriate judge has no stake in the government of the country, and may therefore be reluctant to risk his tenure of office or even exposure to criticism by ruling against the government in important or critical constitutional cases... . An expatriate judge, lacking sufficient acquaintance with local values and needs, cannot be expected to be responsive to these values and needs to the extent of making them guiding principles in the decisions he

121 was appointed. In 1978, when he died, twelve of the nineteen judges of the High Court

and Court of Appeal were foreign contract judges.224

The government exercises considerable control over these judges by non-renewal

of contracts, transfer, suspension, and even dismissal.225 Less discreet interference with judicial work is not uncommon. Indeed, a former contract judge has claimed that he was

requested by the Chief Justice on the orders of the President to disqualify himself in a

matter he was hearing.226 In the circumstances, it is hardly surprising, that, in general,

contract expatriates have ruled in favour of the government and the ruling party, KANU

"in matters where their actions were challenged as undemocratic, unconstitutional, or

illegal."227

In conclusion, notwithstanding the Indian experience of extensive popular mobilization of the Supreme Court, perhaps the most effective means of judicial

gives. For him, a strict positivist approach and an uncritical application of past precedent offer security from exposure." See Nwabueze, supra note 58 at310-ll. 224 See M. Kiai, Independence without Freedom: the Legitimization of Repressive Laws and Practices in Kenya (1994) at 3, cited in Mutua, ibid., at 108n. 225 For a short period, the constitutional guarantee of judicial tenure during good behaviour (applicable in practice to only non-contract judges) was expunged. See Constitution of Kenya (Amendment) Act No. 4 of 1988. Strong local and international criticism forced a reversal of policy. The provision was restored by Constitution of Kenya (Amendment) Act No. 17 of 1990. But as Days, et al., point out, "once the security of tenure has been tampered with, it is difficult to restore that security. What the government has removed once, it may remove again. The earlier abolition of tenure will continue to remind Kenyan judges that they are subject to the exercise of political influence by the Kenyan Executive." See Days, et al., supra note 179 at 21. 226 See Mutua, supra note 179 at 109; Ross, supra note 179 at 429. 227 See Mutua, supra note 179. The same conclusion was drawn by Days, et al. at 9: "Kenyan High Court judges have evinced an indifference, if not hostility, toward constitutional litigation, which contributes to doubts about the independence of the judiciary. The judges' attitudes are profoundly troubling. Some judges felt that lawyers bringing a constitutional suit was tantamount to challenging the sovereignty of the Kenyan government." This impression is very strong within the Kenyan legal community, as the Constitution of Kenya Review Commission recently reported. See Report of Advisory Panel of Eminent Commonwealth Judicial Experts, online: Constitution of Kenya Review Commission Homepage (Last accessed: 9 October 2002).

122 mobilization is sustained rights-advocacy and interest-group/ opposition litigation. The possibility of judicial mobilization indicated by the example of Zimbabwe, and the other countries of southern Africa, is instructive, because like elsewhere in Africa, "for most

Zimbabweans the law is remote and expensive."

The reluctance of most practitioners to take human rights cases is compounded by the fact that most potential claimants have little money and cannot afford to pay the standard legal fees.

To accommodate the deployment of the bill of rights by interest and opposition groups, mechanisms such as public interest standing and third-party intervention must be available. It is significant that these are precisely the areas where the extant judicial practice in most countries in Commonwealth Africa is weakest. In chapter 3, we shall examine this problem with respect to the Supreme Court of Nigeria.

D. Post-Authoritarian Institutionalization of the Supreme Court

The strength of organizations, Samuel Huntington argued, depends partly on their institutionalization,231 or degree of structural persistence. Huntington's analysis of the

There has been some attempt to link the level of litigiousness with degree of development of 'rights consciousness.' See, e.g., D.F. Henderson, "Law and Political Modernization in Japan" in R.E. Ward, ed., Political Development in Modern Japan (Princeton: Princeton University Press, 1968) 387 at 449-456. Whatever may be the merit of this claim, there is enough evidence of litigiousness among Africans. In his well-known study of the judicial process among the Barotse of Zambia, Max Gluckman observed that "the Lozi, like all Africans, appear to be very litigious." See M. Gluckman, The Judicial Process among the Barotse of (Manchester: Manchester University Press, 1955) 21 [emphasis added]. In Nigeria, for example, a primary objective of colonial judicial reform was to minimize litigation. A foremost colonial administrator had complained of "the fomenting of litigation by lawyers' agents, especially in land cases, with disastrous results to the ignorant people who had spent their substance in bootless litigation." See Cmd. 468, supra note 17 at § 51(c). 229 See Africa Watch, Zimbabwe: A Break with the Past (New York: Human Rights Watch, 1989) 6. "Expenses such as transport, legal representation and the fee for a summons is prohibitively expensive for the overwhelming majority of people." See 0. Thiis & G. Feltoe, "Zimbabwe" in H. Stokke, A. Suhrke & A. Tostensen, eds., Human Rights in Developing Countries Yearbook 1997 (The Hague: Kluwer, 1998) 377at 406. 230 SeeBochenek, supra note 213 at 507. 231 See Huntington, supra note 114 at 12.

123 criteria of institutionalization provides a convenient benchmark for evaluating the progressive institutionalization of the Supreme Court during of the period covered by our study. However, a critical limitation of Huntington's analysis is that structural persistence in itself does not disclose why institutions are valued or how they induce loyalty. This quality, institutional legitimacy, depends primarily on the degree of diffuse support for the institution.

Huntington identified four structural indices of institutionalization of organizations: adaptability, structural complexity, autonomy, and coherence.

Functional and organizational complexity is a mark of effective organizations. Coherence requires a substantial institutional consensus on the "functional boundaries" of the organization and on how internal disputes are resolved. These two elements relate to the operations of the Supreme Court. The development of its complex operations, in response to challenging demands, and consensual decision-making are discussed in chapters 4 and

5 respectively. For the present we are more interested in those elements that are relevant to the external environment of the Court: adaptability and autonomy. Adaptability is the ability of an institution to respond to environmental challenge. This ability is partly a function of chronological age, as older organizations or procedures tend to be more

See R. Sisson, "Comparative Legislative Institutionalization: A Theoretical Exploration" in A. Kornberg, ed., Legislatures in Comparative Perspective (New York: David McKay Co., 1973) 17 at 22 [hereinafter Sisson, "Comparative Legislative Institutionalization"]. See also J.R. Schmidhauser, "An Exploratory Analysis of the Institutionalization of Legislatures and Judiciaries" in Kornberg, ibid. 127 at 135 (suggesting that "comparative patterns of chronological age changes... indicate that Huntington's...indices of institutional maturation are attributes indicating the relative decline or weakness of those institutions rather than greater political influence or strength.") 233 Huntington actually described each of his four criteria as a continuum: adaptability-rigidity; complexity-simplicity; autonomy-subordination; and coherence-disunity. Following Huntington and others, Kelvin McGuire has recently suggested that the commonly accepted indicators of institutionalization are

124 institutionalized than others. It may also be a result of an organization surviving

replacement of its original set of leaders (generational age) or by outliving its original

functions (functional age). The Nigerian Court is just over fifty years old. Since its

founding, eleven chief justices and over eighty justices have served on the Court. As we

shall discuss below, there has evolved a strong practice of orderly succession to the

position of chief justice. The arbitrary removal of Justices is completely unthinkable

today. The only dismissals from the Court occurred as long ago as the mid seventies,

during the military dictatorship. The greatest challenge the Court has faced so far is

confrontation with the regime resulting from Lakanmi. Lacking the support of its

constituents, the Court, as we saw, clearly understood the limits of its power and

strategically retreated from the brink. But it did not suffer significant loss of prestige. Yet

it must be admitted that the Court does not yet have anything like the Indian Supreme

Court's record of ability to overcome political challenges.23 As a result, it is fair to

conclude that, in spite the age of the Nigerian Court, its demonstrated capacity to weather

severe environmental crisis may yet be unproven.

Autonomy is probably the most significant element of institutionalization.

Highly institutionalized organizations are autonomous rather than subordinate, meaning that the stronger institutions will be more independent of other institutions and social forces, and will have developed a separate life of their own. Thus autonomy would deal

differentiation, durability, and autonomy. See K.T. McGuire, "The Institutionalization of the U.S. Supreme Court" (2004) 12 Pol. Analysis 128 at 130. 234 See Huntington, supra note 114 at 13. 235 Supra note 126 and accompanying text. 236 See sources cited in note 116, supra. For a short discussion, see Beller, "Supreme Court Authority in India," supra note 115 at 520-28.

125 with the differentiation of the court from other spheres, with how insulated the court is.

There are external and internal aspects of autonomy. The autonomy of an

institution with respect to its external environment may be considered from a generic

(institutional) and a specific (policy) perspective respectively. The former is simply the

formal independence or separation of the institution. Specific or policy autonomy, on the

other hand, "refers to effective participation in the setting of public goals and in the

creation of means of their achievement. It also refers to participation in policy execution,

whether direct or through review or appraisal."238 Thus, Gadbois has suggested that the

frequency with which other institutions lose in the Indian Supreme Court is an indicator

of autonomy of that court.239 Again, the record of the Supreme Court of Nigeria here is

not great. However, recent activism of the Court in federalism cases (chapter 4 §1) is

likely to raise its political profile considerably. That the political branches, Nigeria's

central government and governments of the states, are now willing to submit disputes

over the boundaries of political power to judicial resolution - and to abide by the decision

- will make judicial involvement in public policy no longer as remarkable as it once was.

Sustained appellate rights litigation is, however, still missing. Secondly, over the decade

ending 2000 the Court of Appeal and, to a lesser extent, the High Courts have shown

significant inclination to place a high premium on international human rights instruments.

This increased reliance on external norms in decision-making may suggest a growing

autonomy of the courts. The impact of the emerging practice will increasingly be felt in

237 Gadbois, supra note 113 at 120. 238 Sisson, "Comparative Legislative Institutionalization," supra note 232 at 26. 239 Gadbois, supra note 113 at 127.

126 the Supreme Court as these cases reach its docket at great pace. This development will be considered in Chapter 5. Autonomy, as we have seen, is a major problem of judicial organization in Africa. That this is so at all is sometimes puzzling. "The anomaly,"

Seidman has remarked, "has been that the judiciary has not been a threat to African governments, whatever its theoretical powers. No place has it acted vigorously to defend constitutional rights."240

According to Sisson, internal autonomy "may be measured in terms of the extent to which strategic positions of organizational authority are filled by those who have participated in the institution over a period of time." 41 As we shall see in chapter 3, the

Court's membership is exclusively recruited from senior justices of the Court of Appeal, thereby minimizing political influence in judicial recruitment. Indeed, under the current recruitment regime, the influence of or input by the government in selecting candidates is virtually eliminated (chapter 3 §3). Although the first four chief justices were recruited from outside the Court, the consistent practice for three decades, since 1979, has been that the senior justice is promoted to chief justice. There was considerable resentment among sitting justices in 1975 when the last outsider to head the Court was named. Four years later, when it was again vacant, the senior justice, Fatayi-Williams, hinted that he would resign immediately if he was again passed over for the position. He was appointed. Hierarchical succession to the position of chief justice became an established practice.

240 Seidman, "Form and Legitimacy of Constitutions," supra note 168 at 109. This passage was of course written long before the recent experience of Zimbabwe. 241 Sisson, "Comparative Legislative Institutionalization," supra note 232 at 26-27. 242 See Fatayi-Williams, Faces, Cases and Places, supra note 73 at 149.

127 As we noted above, Huntington's criteria of institutionalization do not tell us anything about how organizations acquire or lose institutional legitimacy. David Easton attributed this process to diffuse support. As he explained it, diffuse support constitutes

a reservoir of favorable attitudes or goodwill that helps members accept or tolerate outputs to which they are opposed and the effect of which they see as damaging to i • 243 their wants.

Diffuse support therefore differs from the more limited support arising from satisfaction with specific policy output of a court (specific support). Low diffuse support may co-exist with a high specific support. In particular, with emergent courts, this is very likely the case because they would not have had sufficient time to accumulate specific support. Gibson, Calderia, and Baird have reported findings showing that the legitimacy of national high courts slowly evolves from the accumulation of satisfied constituents. On the other hand, prolonged dissatisfaction with decisions of a court may erode diffuse support. Courts may also generate support by becoming salient (by making their policy making activity known to the mass public).244 The increasing salience in recent years of the Supreme Court of Nigeria to its attentive and, to some extent, mass publics presumably generates a positive legitimacy dividend. Awareness of the Court is promoted by positive media attention. There is no difficulty today in finding a major story on the

Court every week in at least one leading national periodical. Gibson, Calderia, and Baird

243 D. Easton, A Systems Analysis of Political Life (New York: Wiley, 1965) 273. "Diffuse support emerges as the best predictor of compliance: those who are supportive of the Court are significantly more likely to comply with its decisions even when they are disagreeable." See J. Gibson, "Understandings of Justice: Institutional Legitimacy, Procedural Justice and Political Tolerance" (1989) 23 Law & Soc'y Rev. 469 at 489. 244 See J.L. Gibson, G.A. Caldeira & V.A. Baird, "On the Legitimacy of National High Courts" (1998) 92 Am. Pol. Sci. Rev. 343 at 355

128 find that "courts become known primarily when they make decisions that attract media attention."245

The present media attention generally indicates satisfaction with specific outputs of the Supreme Court. It is also an indication of its expanding policy role. For example, in selecting the Court as "person of the year" for 2002, the prestigious Guardian wrote:

Our sober contention...is that the Supreme Court, and by extension, the judiciary emerged strongly in the course of 2002, as a major platform for strengthening the democratic process and for enforcing the supremacy of the rule of law. ...The year 2002 was the particular year in which the Supreme Court, our apex court, was significantly busy dealing with landmark cases, and entering interpretations of the Constitution, on issues that invariably energized society, set public agenda and raised the tempo of public discourse. ...The Supreme Court is by no way in a state of stupor; it is a vibrant, energetic court. It has confronted us with the feeling that we are all under the rule of law.24

Growing salience and consistent satisfactory policy output will enable the Court accumulate greater institutional legitimacy in the coming years. However, for much of its history, the Court was an obscure institution. That is the account provided in this study.

In Chapter 5, we shall explain how its human rights caselaw is framed by the limited institutional legitimacy and resources of the Court. Immediately preceding that discussion, in Chapters 3 and 4 respectively, we consider organizational and operational aspects of Supreme Court decision-making. All of these must however abide an examination, in the next chapter, of the normative framework - the Nigerian Bill of

Rights.

245 Ibid, at 347.

246 c.-pi^ sUpreme Court: Brave Men, Great Institution" The [Lagos] Guardian (01 January 2003) [emphasis added].

129 Chapter Two

THE NIGERIAN BILL OF RIGHTS

"Important and extraordinary." This was the immediate, rather overly optimistic, assessment of the Nigerian Bill of Rights in the British House of Commons.1 Those words sounded truer as a prophecy. Because what the document lacked in originality or quality, it shortly gained in influence as the archetypal Commonwealth bill of rights. This extraordinary reputation, as one of the most influential bills of rights ever, assured the

Nigerian Bill of Rights' place in history. In a period of roughly two decades, it was appropriated, with very little editorial gloss, in half of the new Commonwealth - two dozen or so countries, mainly in Africa2 and the Caribbean.3

Arthur Creech Jones, 626 H.C. Deb., 5a, col. 1815, quoted in R. Hahn, Commonwealth Bills of Rights: Their Nature and Origin (Ph.D. Thesis, Oxford Univ., 1986) at 35 [unpublished]. Sir Kenneth ' Roberts-Wray called it "a development of outstanding importance." See K. Roberts- Wray, "Human Rights in the Commonwealth" (1968) 17 Int'l & Comp. L.Q. 908, 916 (hereinafter Robert-Wray, "Human Rights"). 2 Botswana: Constitution of 30 Sept. 1966, c. II ss. 3-18. For text, see A.J. Peaslee, ed., Constitutions of Nations rev. 4th ed. by D. Peaslee Xydis Vol. I (The Hague: Martinus Nijhoff, 1974) at 11 (hereinafter "Peaslee 4th ed."); The Gambia: Constitution of 24 April 1970, c. Ill ss. 13-28. For text, see Peaslee, ibid, at 226. (Now superseded by Constitution of 1996, c. IV, ss. 17-37); Kenya: see Report of the Kenya Constitutional Conference Cmnd. 960 (1960), Report of the Kenya Constitutional Conference Cmnd. 1700 (1962); Constitution of 12 Dec. 1963, c. II ss. 14-28. For text, see A.J. Peaslee, ed., Constitutions of Nations rev. 3rd ed. by D. Peaslee Xydis Vol. I (The Hague: Martinus Nijhoff, 1965) at 257 (hereinafter "Peaslee 3rd ed."); Constitution of Kenya 1969 (Act 5 of 1969), c. V ss. 70-84 (see Peaslee 4th ed. at 339); Lesotho: see Report of the Basutoland Constitutional Commission Cmnd. 897 at para. 146. See Constitution of 4 Oct. 1966. For a personal account of the adaptation of the Nigerian model by the Basutoland Commission, see D.V. Cowen, "Human Rights in Contemporary Africa" (1964) 9 Nat. L. For. 1. See now, Lesotho Constitution of 25 March 1993, ss. 4-22. Malawi: Constitution of 6 July 1964, c. n ss. 11-25. (Peaslee 3rd ed. at 476). The provisions were subsequently expunged. See Constitution of 6 July 1966 (Peaslee 4th ed. at 464). But see now Constitution of 16 May 1994, c. IV (bill of rights significantly differing from Nigerian model); Mauritius: Constitution of 12 March 1968, c. II ss. 3-17 (Peaslee 4th ed. at 516); Sierra Leone: see Report of the Sierra Leone Constitutional Conference Cmnd. 1029 (1960) para. 10; Constitution of 27 April 1961, c. II ss. 11-24 (Peaslee 3rd ed. at 715); Constitution of 19 April 1971, c. I ss. 1-14 (Peaslee 4th ed. at 670); Constitution of 1 Oct. 1991, c. Ill ss. 15-28; The result, in effect, was a "common law" of human rights shared by a majority of Commonwealth jurisdictions.4 Except that, remarkably, this presumptive normative community remains illusory, in Africa at least. Partly because of shared legal and judicial institutions, the situation is more hopeful in the Caribbean.5 A critical mapping of the trajectory of neo-Nigerian bills of rights has yet to be undertaken,6 and is beyond the scope of the present study. It is incontrovertible, however, that this extraordinary migratory capacity of the Nigerian Bill of Rights was primarily a result of zealous

Swaziland: Constitution of 6 Sept. 1968, c. II ss. 3-17 (Peaslee 4th at 847) (now suspended); Uganda: see Report of the Uganda Constitutional Conference, 1961 and Text of the Agreed Draft of the New Buganda Agreement Initialled in London on 9th October 1961 Cmnd. 1523 (1961) para. 167; Constitution of 2 October 1962, c. Ill ss. 17-32 (Peaslee 3rd ed. at 921); superseded by Constitution of 22 Sept. 1995, c. IV; Zambia: Constitution of 24 Oct. 1964, c. Ill ss. 13-28 (Peaslee 3rd ed. atl027). But see now Constitution of 1991 (Act 1 of 1991), Pt. in, ss. 11-28 (bill of rights significantly departing from Nigerian model); Zimbabwe: Constitution of 1980, ss. 11-24 (Declaration of Rights). Adoption of neo-Nigerian bill of rights preceded Zimbabwe's independence Constitution. See Constitution of Southern Rhodesia Cmnd. 1400, Appendix 2 (Declaration of Rights), and see further, C. Palley, The Constitutional History of Southern Rhodesia, 1888-1965 with Special Reference to Imperial Control (Oxford: Clarendon, 1966) 573. For post- 1965, see Constitution of Rhodesia 1969, 2nd sch. (Peaslee 4th ed. at 771). 3 See Jamaica (Constitution) Order in Council 1962, ss. 13-26; Constitution of Barbados (sch. to the Barbados Independence Order, No. 1455 of 1966), c. Ill ss. 11-24; Grenada Constitution Order, No. 2155 of 1973, ss. 1-16; Commonwealth of Dominica Constitution Order, No. 1027 of 1978, ss. 1-16; St. Vincent Constitutional Order, No. 916 of 1979, ss. 1-16 [St. Vincent and the Grenadines]; Constitution of Guyana Act 1980, Pt. 2 Tit. 1 ss. 138-54; Belize Constitution, No. 14 of 1981, c. II; Antigua and Barbuda Constitution Order, No. 1106 of 1981, c. II, ss. 3-19; St. Christopher [Kitts] and Nevis Constitution Order, No. 881 of 1983, ss. 3-18; Constitution of St. Lucia, ss. 1-16. 4 "There are some twenty-six Commonwealth countries whose independence constitutions guarantee fundamental rights and freedoms modelled on the European Convention; this is more than the total number of countries that are parties to the Convention itself. In this way, the Parliament of Westminster has exported the rights and freedoms of the Convention to the common-law countries of the new commonwealth on a scale without parallel in the rest of the world." See A. Lester, "The Overseas Trade in the American Bill of Rights" (1988) 88 Colum. L. Rev. 537 at 541 [emphasis added] (with the post-cold war expansion of the Council of Europe, there are now forty-four parties to the European Convention). 5 See M. DeMerieux, Fundamental Rights in Commonwealth Caribbean Constitutions (Bridgetown: University of the West Indies, 1992). No comprehensive Afro-Caribbean comparative study of bill of rights caselaw has been published. 6 See Hahn, Commonwealth Bills of Rights, supra note 1. For early accounts, in the 1960s, see K. Vasak, "The European Convention of Human Rights Beyond the Frontiers of Europe" (1963) 12 Int'l & Comp. L.Q. 1206 [hereinafter, "European Convention beyond Europe"]; See also S.A. de Smith, "Fundamental Rights in the New Commonwealth" (1961) 10 Int'l & Comp. L.Q. 215 [hereinafter, "Fundamental Rights"]; D.O. Aihe, "Neo-Nigerian Human Rights in Zambia: A Comparative Study with Some Countries in Africa and West Indies" (1971-72) 3 & 4 Zambia L. J. 43.

131 marketing by the British colonial bureaucracy. a Since the Colonial Office largely

authored the Nigerian Bill of Rights, its emergence as a quasi-official model in this

"export trade in human rights"7 is clearly understandable. Contrary to the official

account, there was neither a significant local demand for nor input in the Bill of Rights.

Recently declassified British documents8 almost completely falsify the official account

and with it the narrative of the origins of the Bill of Rights. We draw extensively on the

new sources in section I of this chapter.

The Bill of Rights was intended to replicate closely, perhaps too closely, the first

section of the European Convention for the Protection of Human and Fundamental

Freedoms. Except for the right to marry, practically every Convention right is included

in the Bill of Rights, in addition to two or three provisions from other sources. Hence it

carries the Convention's imprint of a "narrowly individualistic view of society."10 The

a "One cannot help being struck with the fact that it is principally the United Kingdom which has been behind the veritable 'dissemination' of the European Convention throughout the world and especially in Africa. Indeed, it is no secret that the 'draftsmen' of the Colonial Office in London have, since the success of the Nigerian experiment, always had in mind the spirit of the Convention, whenever, anywhere in the world, the peaceful evolution of the British Commonwealth runs up against the problem of national, racial or tribal minorities." See Vasak, "European Convention beyond Europe," ibid, at 1223. 7 A.W.B. Simpson, Human Rights and the End of the Empire: Britain and the Genesis of the European Convention (Oxford: Oxford University Press, 2001) at 870 [hereinafter Simpson, Human Rights and the End of the Empire]. 8 These documents are reproduced in M. Lynn, ed., Nigeria: Moving to Independence 1953-1960 (London: The Stationery Office, 2001) at 497-504, 539-43, 557-58 [hereinafter, "Nigeria, 1953-1960"]. For analysis and additional insights, see Simpson, Human Rights and the End of the Empire ibid, at 862-69. 9 213 U.N.T.S. 221, E.T.S. 5, U.K.T.S. 71 (1953); entered into force 3 Sept. 1953 (hereinafter "European Convention"). 10 See K.D. Ewing & C.A. Gearty, "Rocky Foundations for Labour's New Rights" [1997] Eur. H.R.L. Rev. 146 at 150. This criticism echoes Karl Marx: "None of the so-called human rights then goes beyond the egoistic man, beyond man as member of civil society, namely withdrawn into his private interests and his private will, separated from the community. Not only is man not considered in these human rights to be a species- being, but also species-life itself, society, appears to be a context external to the individuals, and a restriction of their original independence. The one tie that holds them together is natural necessity,

132 Nigerian instrument, therefore, it has been correctly observed, was "the conduit for the

importation of the Western articulation of the concept of human rights into modern

African human rights law"11 This is significant in itself, because the liberal assumption of

moral individualism is presumably out of sync with the supposedly communitarian

character of African communities.12 This study does not directly address that issue.13

need and private interest, the conservation of their property and their egoistic person. See K. Marx, "On the Jewish Question" in Marx, Early Political Writings, ed. By J. O'Malley (Cambridge: Cambridge University Press, 1994) 28 at 46. 11 C. Heyns, "African Human Rights Law and the European Convention" (1993) 11 S. Afr. J. Hum. Rts. 252 at 258. Cf. Vasak, who claims the European Convention "has found a fertile ground for its expansion in other continents, no doubt because of its intrinsic virtues, and because it is not tied to a European concept of man." See Vasak, "European Convention beyond Europe," supra note 6 at 1206 [emphasis added]. For problem of cross-cultural legitimacy, see infra note 12 at 1206. 12 As Leopold Senghor put it, "in Europe, Human Rights are considered as a body of principles and rules placed in the hands of the individual, as a weapon, thus enabling him to defend himself against the group or entity representing it. In Africa, the individual and his right are wrapped in the protection of the family and other communities. ...Rights in Africa...cannot be separated from the obligations due to the family and other communities." (Address to meeting of independent experts drafting the African Charter on Human and Peoples' Rights) OAU DOC. CAB/LEG/67/5, quoted in F. Ouguergouz, The African Charter on Human and Peoples' Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (The Hague: Martinus Nijhoff, 2003) at 377-78 [hereinafter, The African Charter]. For a case study of communitarian-individualist elements of African bills of rights, see A.K. Wing, "Communitarianism vs. Individualism: Constitutionalism in Namibia and South Africa" (1993) 11 Wis. Int'l L.J. 295. A recent forceful restatement of the case for a radical communitarian African concept of human rights is M. Mutua, "The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties" (1995) 35 Va. J. Int. 339. See further, LA. Menkiti, "Person and Community in African Traditional Thought" in R.A. Wright, ed., African Philosophy: An Introduction 3rd ed. (Lanham, Md.: University Press of America, 1984) 171. But the case for the ontological primacy of the community in [traditional] Africa is perhaps overstated. See K. Gyekye, Tradition and Modernity: Philosophical Reflections on the African Experience (New York: Oxford University Press, 1997) at 35-76 (arguing that the African experience may be more accurately classified as moderate communitarian). The communitarianism debate is sometimes conflated with the closely related issue of cross-cultural legitimacy of human rights standards in Africa. Human rights as defined by, say, the Nigerian Bill of Rights, it is argued, represent Western values. It has therefore been suggested that there is a problem of cultural legitimacy of national human rights standards in Africa. See B. Ibhawoh, "Between Culture and Constitution: Evaluating the Cultural Legitimacy of Human Rights in the African State" (2000) 22 Hum. Rts. Q. 838. See also A.A. An-Naim, "Problems of Universal Cultural Legitimacy for Human Rights" in An-Naim & Deng, eds., Human Rights in Africa: Cross-Cultural Perspectives (Washington, D.C.: Brookings Institution, 1990) 345-55. Although quite significant in contemporary human rights discourse, cultural relativism has so far been of little moment in human rights decision-making in the Supreme Court of Nigeria. Cf. M.E. Adjami, "African Courts, International Law, and Comparative Case Law: Chimera or Emerging Human Rights Jurisprudence?" (2002) 24 Mich. J. Int'l L. 103 at 152-65 (although author identifies tensions in judicial decision-making between international human rights norms and African cultural practices, he also notes, "the experience of the national courts... indicates that thus far, litigants and

133 The overall objective of the present chapter is to situate the Nigerian Bill of

Rights in the context of its European Convention origins. The discussion is separated into

three sections. The first section narrates the origin of the Nigerian Bill of Rights. Section

II outlines the normative structure of the Bill of Rights against the background of its

textual sources. (An account of the normative significance of the provisions in judicial practice will be undertaken in chapter 5.) Because the Nigerian text largely reproduces the structure and language of the Convention, the "genetic defects"1 of the latter are fully reproduced in it. Like the Convention, its scope is not as extensive as the Universal

Declaration of Human Rights. There are no provisions on social rights. In contrast, in the

1980s and 90s, African bills of rights, typified by South Africa's, broke with this limited model and aspired instead to the comprehensiveness of the Universal Declaration. In our view, extended bills of rights, such as those adopted recently by Uganda and other

national courts in Africa have embraced the universalist and internationalist discourse on human rights with fewer cultural hesitations than the staunch proponents of African particularism would predict. This is a striking phenomenon with implications for the future enforcement of human rights in Africa." Ibid, at 118). However, it can hardly be denied that some notion of universal human rights is valuable, if not necessary, for transjudicialism. See B. Ibhawoh, "Cultural Relativism and Human Rights: Reconsidering the Africanist Discourse" (2001) 19 Neth. Q. Hum. Rts. 43. For critical perspectives on 'universal' human rights, see J. Donnelly, Universal Human Rights in Theory and Practice 2nd ed. (Ithaca: Cornell University Press, 2003) c. 5-7, — "Human Rights and Asian Values: A Defence of Western Universalism" in J.R. Bauer & D.A. Bell, eds., The East Asian Challenge for Human Rights (Cambridge: Cambridge University Press, 1999) at 60-87; MJ. Perry, The Idea of Human Rights: Four Inquiries (New York: Oxford University Press, 1998) at 57-86; U. Baxi, The Future of Human Rights (New Delhi: Oxford University Press, 2002) at 91-118. 13 See T.O. Pearce, "Human Rights and Sociology: Some Observation from Africa" (2001) 48 Social Problems 48. The liberal rebuttal of the African concept of human rights is laid out in R.E. Howard, Human Rights and the Search for Community (Boulder: Westview Press, 1995) at 86-91. See also R.E. Howard & J. Donnelly, "Human Dignity, Human Rights, and Political Regimes" (1986) 80 Am. Pol. Sci. Rev. 801 (arguing that although all societies possess conceptions of human dignity, the conception of human dignity underlying international human rights standards require a particular type of 'liberal' regime). 14 See L. Henkin, "A New Birth of Constitutionalism: Genetic Influences and Genetic Defects" in M. Rosenfeld, ed., Constitutionalism, Identity, Difference, and Legitimacy (Durham: Duke University Press, 1994) 39 at 40 ("...framers of new constitutions who look to [foreign] sources and who copy their text or imitate their institutions must proceed with care and discrimination and - to pursue the metaphor - might consider genetic constitutional engineering and treatment.")

134 countries in Africa, are potentially a great stress on the capacity and institutional resources of African courts, perhaps more than they can bear.

I. DEVELOPMENT OF THE BILL OF RIGHTS

A. Background: The Minorities Question and Human Rights

The emergence of the Nigerian Bill of Rights was a response to a need to protect ethnic and religious minorities in Nigeria from political oppression. Ironically, there was little political demand specifically for a bill of rights. Instead, at the Nigerian Constitutional

Conference of May - June 1957, there was considerable pressure for reorganization of the federation by, in particular, the creation of new states. The existing federal system, settled at the Constitutional Conference of 1953, comprised three states ("Regions") and a small Federal territory of Lagos. It was an unusual arrangement because of the relative size of the units. The Northern Region, comprised a larger territory and population than the other two combined. Demographically, however, each of the units included a dominant ethnic group and several ethnic minorities. When the Conference resumed in

1954, certain minority groups expressed fears of oppression by the majority group in their respective Regions, and therefore demanded recognition as separate states. However, the creation of new states was not on the agenda of that Conference. It was no surprise therefore that it was a major issue at the next Conference in 1957.

After a lengthy discussion, this Conference agreed to request the U.K. Secretary of State for Colonies to establish "a Commission of Enquiry to ascertain the fears of minorities in any part of Nigeria and to propose means of allaying those fears whether

135 well or ill founded."15 A four-member Commission, chaired by Sir Henry Willink, a

British lawyer and public servant, was established by the Secretary of State on the 26th

September 1957 with a mandate, inter alia, "to advise what safeguards should be included... in the Constitution of Nigeria" in order to allay the fears of minorities16 in any part of Nigeria. Its terms of reference, and indeed the official report of the 1957

Constitutional Conference, anticipated that the Commission was likely to be inundated

See Report by the Nigerian Constitutional Conference held in London in May and June, 1957 Cmnd. 207 (London: H.M.S.O., 1957) at para. 24 [hereinafter 1957 Conference Report]. 16 "Minorities" was shorthand for ethnic/ religious minorities, but it was not explicitly defined in the mandate of the Commission. However, in the course of its public hearings, the Commission ruled that "the word 'minorities' in our terms of reference meant ethnic or religious minorities of a permanent nature; we were therefore not prepared to hear political minorities, that is to say, political parties in opposition, except in so far as their evidence threw light on the fears of either ethnic or religious minorities." See Report of the Commission Appointed to Enquire into the Fears of Minorities and the Means of Allaying Them Cmnd. 505 (London: H.M.S.O.1958) at 111 (appendix II) [hereinafter Minorities Commission Report]. For a critical reappraisal of the concept of "ethnic minorities" in Nigeria, see E.E. Osaghae, "Ethnic Minorities and Federalism in Nigeria" (1991) 90 Afr. Affairs 237; — "Do Ethnic Minorities Still Exist in Nigeria" (1986) 24 J. Comm. & Comp. Pol. 151. 17 (1) To ascertain the facts about the fears of minorities in any part of Nigeria and to propose means of allaying those fears, whether well or ill founded. (2) To advise what safeguards should be included for this purpose in the Constitution of Nigeria. (3) If, but only if, no other solution seems to the Commission to meet the case, then as a last resort to make detailed recommendations for the creation of one or more new States, and in that case:- (a) To specify the precise area to be included in such State or States; (b) To recommend the Governmental and administrative structure most appropriate for it; (c) To assess whether any new State recommended would be viable from an economic and administrative point of view and what the effect of its creation would be on the Region or Regions from which it would be created and on the Federation. See 1957 Conference Report, supra note 15 at 1-2. 18 "Though the desire for the creation of new States in part arises from the fears of minorities, it would be impracticable to meet all these fears by the creation of new States. There are many different ethnic groups and peoples in Nigeria and however many States were created, minorities would still invariably remain. It would therefore be the task of the Commission to propose other means of allaying these fears and to consider what safeguards should be included for this purpose in the constitution. .. .However, if no other solution seemed to them to meet the case, the Commission would be empowered as a last resort to make detailed recommendations for the creation of one or more new States, specifying the

136 with requests for the creation of additional states. Indeed, as the Commission reported, the fears of minorities "were all expressed in regard to the Regional Governments, who in each Region were thought of as a majority group. No minority expressed fears of the

Federal Government, partly because the Regional Governments deal with matters which affect most people most closely than those that fall within the Federal sphere."19

In the circumstances, it is not surprising that demand for a bill of rights was very weak. Specifically, the Commission reported,

[although almost all the witnesses who came before us were insistent that nothing but a separate state could meet their problems, one group asked only for provision in the Constitution guaranteeing certain fundamental rights. These were the Christian bodies who appeared before us both in Lagos, on behalf of their organizations throughout Nigeria, and again in the Northern Region. Some other witnesses said they would welcome such provisions in the Constitution but were afraid that they would not be sufficient.

It must be acknowledged, however, that there was some political support at the 1953 and

1957 Constitutional Conferences, respectively, for a constitutional bill of rights. In the former, the chair, the Secretary of State for Colonies, Oliver Lyttelton (later Lord areas to be included and the governmental and administrative structure most appropriate." See 1957 Conference Report, supra note 15 at para. 24(b)-(c). 19 See Minorities Commission Report, supra note 16 at 2. For a review of the Commission's findings relating to the fears of the minorities, see P. J. Kaplan, "Fundamental Rights in the Federation of Nigeria" (1962) 13 Syracuse L. Rev. 434 at 438-40. 20 Ibid, at 97 [emphasis added]. The Report does not disclose the identity of the "Christian bodies" referred to in the passage. Nor is it conclusive on the issue of whether this was the only group that requested a constitutional bill of rights. An early study inferred from the passage that "actually only Christian groups specifically asked that a Bill of Rights be written into the Constitution." See G. Ezejiofor, Protection of Human Rights under the Law (London: Butterworths, 1964) at 18 In. But the passage is at best inconclusive. It does not speak of "only one group," but that "one group asked only" for constitutional entrenchment of certain fundamental rights. The uniqueness of this group is that a bill of rights was the only solution to minorities question they supported. This is not inconsistent with the fact that some other groups may have also supported the same solution but not exclusively, as indeed seems obvious from the last sentence of the passage.

137 Chandos) refused to allow discussion of a proposal by two major Nigerian political parties, supported by a third, for incorporation in the constitution of a Declaration of

Fundamental Rights and Freedoms. Perhaps for that reason, there is no record of this in

91 the official report of the Conference. But in the minutes, it is noted thus: Mr. Lyttelton said the Conference could do as it wished. He himself would not however take any part in the discussion. He had never known any similar Declaration to be incorporated in a British Constitution. There was a Declaration in the Indian Constitution, but it did not make for greater freedom in that country; for instance, the press restrictions were more severe than in most countries. He asked the Conference to dismiss any idea of putting such a 99 Declaration into the Constitution.

According to the recollections of Lord Chandos himself, he treated the matter quite trivially. ...[A] member representing a not very important group asked that the Charter of Human Rights should be incorporated in the constitution. I replied by saying that they could put 'God is Love' into the constitution if they so wished, but not while I was in the chair. I had the prestige of Nigeria too much at heart to wish that general ethical aspirations should be attached to the laws and constitution. ...if the constitution appeared to subscribe to the idea that freedom was absolute and unlimited it would merely make Nigeria look ridiculous, which I could not stomach.2 At the 1957 Constitutional Conference, the Action Group, a major Nigerian political party, submitted a memorandum for entrenchment of fundamental human rights in the Constitution. The memorandum contained an outline of a bill of rights. While there

Report by the Conference on the Nigerian Constitution held in London in July and August, 1953 Cmd. 8934 (London: H.M.S.O., 1953). 22 Minute of 13 December 1956 (by J.B. Johnston, Lyttleton's Principal Private Secretary), quoted in Simpson, Human Rights and the End of the Empire, supra note 7 at 863. 23 O. Lyttelton, The Memoirs of Lord Chandos (London: Reader's Union, 1964) at 410.

138 was on this occasion an apparent consensus on inclusion of such provisions in the constitution,24 it was decided that

[b]ecause of the complexity of this important subject the Secretary of State's legal advisers should first prepare, in the light of the memoranda submitted to the Conference and the discussion on them, draft clauses for insertion in the constitutional instruments. These clauses should be submitted to all Nigerian Governments and considered at a 25 resumed Conference.

B. The Minorities Commission Report

The Commission reported in July 1958. To the disappointment of many, it declined to recommend the immediate creation of any new States.26 Instead, it recommended several other measures to alleviate the conditions of minority communities. We are concerned here with only with the Bill of Rights.27 The urgency of this aspect of the recommendations is underscored by the fact that it was the very first item for discussion at the resumed constitutional conference in 1958.28 Ironically, the Commission, rather inconsistently, was cynical about the value of a bill of rights. 'Provisions of this kind in the Constitution," it noted, "are difficult to enforce and sometimes difficult to interpret." Nevertheless, we think they should be inserted. Their presence defines beliefs widespread among democratic countries and provides a standard to which appeal may be

See 1957 Conference Report, supra note 15 at para. 67 ("The question of the inclusion in the constitution of provisions to safeguard fundamental rights was discussed. It was agreed that such provision should be made....) Ibid. 26 For a critical evaluation, see R.T. Akinyele, "States Creation in Nigeria: The Willink Report in Retrospect" (1996) 39 Afr. Stud. Rev. 71. 27 Other recommendations included creation of local government; minority areas; and a special development area in the Niger delta. For a discussion, see B.O. Nwabueze, Constitutional Law of the Nigerian Republic (London: Butterworths, 1964) at 438-40 [hereinafter, "Nigerian Constitutional Law"]. 28 See Report by the Resumed Nigeria Constitutional Conference held in London in September and October, 1958 Cmnd. 569 (London: H.M.S.O., 1958) at para. 6 ("The Conference turned first to the question of fundamental rights") [hereinafter, "1958 Conference Report"].

139 made by those whose rights are infringed. A government determined to abandon democratic courses will find ways of violating them but they are of great value in preventing a steady deterioration in standards of freedom and the unobtrusive encroachment of a Government on individual rights.29

The provisions recommended were drawn mainly from the European Convention.

These include every right in the first section of the Convention, except Article 13.30 The

remaining provisions were sourced from the constitutions of Malaya and Pakistan and the

transitional , respectively. There is very little else in this section of the Report other than texts of clauses of the European Convention and these constitutions, which the Commission suggested, "constitutional lawyers will wish to draft in different

It is remarkable that the Commission did not attempt a carefully articulated justification of closely modeling Bill of Rights on the European Convention, especially as the Convention does not have any specific minority rights provision (beyond the prohibition of discrimination against a "national minority" in Article 14).32 The

See Minorities Commission Report, supra note 16 at 97. Cf. Report of the Indian Statutory Commission Vol. II (London: H.M.S.O., 1930) at 24: "We are aware that such provisions have been inserted in many constitutions, notably in those of European States formed after the [1st World} War. Experience, however, has not shown them to be of any great practical value. Abstract declarations are useless unless there exists the will and means to make them work." 30 All the recommended clauses of the Convention appear in the final draft of the Nigerian Bill of Rights, except the right to marry (Art. 12). "It is difficult to know," Vasak observed, "whether this exclusion was due to the difficulties its implementation would encounter in the Muslim parts of Nigeria, particularly in the Northern Region, or whether it was considered unnecessary to guarantee this right, as was the opinion of the Minorities Commission." See Vasak, "European Convention beyond Europe," supra note 6 at 1218. (The Commission's specific recommendation was weak. The following annotation is annexed to the clause in the Report: "This article might seem superfluous but marriage between specific classes of persons has been prohibited in certain countries." See Minorities Commission Report, supra note 16 at 101 [emphasis added].) 31 Ibid, at 97. 32 But see G. Gilbert, "The Burgeoning Minority Rights Jurisprudence of the European Court of Human Rights" (2002) 24 Hum. Rts. Q. 736.

140 Commission was apparently satisfied to briefly remark, we "have given particular

attention to the [European] Convention on Human Rights to which, we understand, Her

Majesty's Government has adhered on behalf of the Nigerian Government."33 The justification rings hollow because this obligation was largely a sham.33a Although only

member States of the Council of Europe may be parties to the Convention (Art. 66),

under Article 63 any State may at the time of its ratification or at any time thereafter

notify the Secretary-General of the Council that the Convention shall extend to all or any

of the territories for whose international relations it is responsible. By a declaration of 23

October 1953, the United Kingdom extended application of the Convention to Nigeria

and thirty-nine other African and non-African territories.34 But the Convention did not as

a result become part of the or any of these other territories. As an

international treaty, it could only be incorporated into municipal law by legislation.

However, the United Kingdom was under an obligation at international law, as a result of the 1953 declaration, to respect Convention freedoms in affected territories. But as far as Nigerians, for example, were concerned, this obligation was practically illusory

Ibid. As we shall see below, the officers of the Colonial Office were disappointed that the Commission did not provide a thorough justification. See infra note 42 and accompanying text. 33a For a discussion, see Simpson, Human Rights and the End of the Empire, supra note 7 at 824-42. 34 Aden, The Bahamas, Barbados, Basutoland [Lesotho], Bechuanaland [Botswana], Bermuda, British Guiana, British Honduras, British Solomons, the Channel Islands ( and ), Cyprus, Falkland Islands, Fiji, Gilbert and Ellice Islands, the Gold Coast [Ghana], Jamaica, Kenya, Gibraltar, Windward Isles, Leeward Isles, Federation of Malaya, Malta, , Mauritius, Northern Rhodesia [Zambia], North Borneo, [Malawi], St. Helena, Sarawak, Seychelles, Sierra Leone, Singapore, Somaliland, Swaziland, Tanganyika, Trinidad, Uganda, Zanzibar, and the Kingdom of Tonga. See Cmd. 9045, U.K.T.S. 86 at 7-8 (1953). "The primary motive was not to improve the lot of the colonial subjects, since the assumption was that in general the situation in the colonies conformed to the Convention, though in some few cases changes in law or practice might be needed. Instead the motive was to present British colonial policy and practice in a favourable light, by publicly committing colonial governments to respect for human rights and to furnish an argument for not accepting a UN Covenant if one was ever adopted." See Simpson, ibid, at 825.

141 since Britain at this time had not recognized the competence of the European

Commission to accept individual petitions. The only possibility of redress under the

Convention against the United Kingdom was a petition by one or more other State

parties. That possibility, naturally, was highly unlikely.35

Because the Minorities Commission did not cast widely for suitable models, it

lost the opportunity to recommend suitable minority protection provisions.36 There is no

specific protection, for example, of the cultural rights of minorities or of a right to

education in minority languages.37 At the same time, however, it must be acknowledged

that the Commission received little assistance from minority groups in this regard. These

groups mostly articulated their needs, it would seem, under a banner of political

autonomy rather a bill of rights. In any event, in the period following the Second World

War, special minority rights protection was not regarded with particular favour. The post­

war approach seem to be that securing individual rights generally would meet the needs

In 1960, the government of Iceland was approached by some Africans to file a petition against the United Kingdom before the European Commission of Human Rights to declare the detention of Dr. Banda, nationalist leader of Malawi, a violation of the Convention. The request was still under consideration by the Icelandic government when Banda was released. See Vasak, "European Convention beyond Europe," supra note 6 at 1212. 36 For a survey of legal regimes of minority rights since the First World War, see D. Wippman, "The Evolution and Implementation of Minority Rights" (1997) 66 Fordham L. Rev. 597. (It must be admitted however that since the League of Nations' minority protection system, with minority treaties, declarations, and minority protection clauses attached to or inserted in peace treaties, did not survive the 2nd World War, the Commission could hardly have been expected to consider it a useful model.) 37 But see I. Jennings, Approach to Self-Government (Cambridge: Cambridge University Press, 1956) at 110 ("The conclusion to be drawn from the experience of India, Pakistan and Ceylon is, I think, that one should not attempt to deal with the problem of minorities by constitutional guarantees in Bills of Rights"). But a Nigerian expert has argued that the Minorities Commission's recommendation of a bill of rights without special minority rights was inadequate. "Fundamental human rights, as individual rights, could not adequately protect the core interests of the minorities. What they wanted were group, not individual, rights. More specifically, they wanted protection as groups, of their languages and cultures from assimilation into those of the majority groups, and from discrimination and domination, as well as rights to development, local autonomy and self-determination." See E.E. Osaghae, "Managing Multiple Minority Problems in a Divided Society: the Nigerian Experience" (1998) 36 J. Mod. Afr. Stud. 1 at 20. But the author does not show any evidence that minority groups actually articulated their needs in terms of communal rights to cultural goods.

142 of special groups as well as the reminder of the population. Hence in immediate post-War

bills of rights, even rights intended to protect communal goods, such as language or

culture, were usually formulated as individual rather than "collective" rights.

C. Esau's Hand: The Colonial Office and the Nigerian Bill of Rights

Until very recently it was not widely known that the recommendations of the Minorities

Commission on fundamental human rights originated from a small group of officials in the Colonial Office.38 They had a favourable view of the European Convention and believed that "there may be advantage in using it as a means of opening discussion, and

in recommending it wherever possible as a document drafted with much care and acceptable to many nations, which has in fact applied to Nigeria for several years."

It would be recalled that the 1957 Constitutional Conference requested the

Secretary of State's legal advisers to prepare draft clauses on fundamental rights for consideration at the resumed conference.40 The Colonial Office group worked on the request and made a submission to the Governor. The Minorities Commission was secretly provided copies.41 In a note, M.G. Smith admitted,

See Simpson, Human Rights and the End of the Empire, supra note 7 at 867-68. The group comprised C.G. Eastwood (chair), A. Emmanuel, LB. Watt, E.C. Burr, and M.G. Smith. None was a lawyer. Eastwood was assistant under-secretary of state responsible for the West African Department (1955-1961). 39 Ibid, at 868. 40 See supra notes 24 & 25 and accompanying text 41 According to A.T. Lennox-Boyd, Secretary of State for Colonies, "a comprehensive series of clauses was drafted in this Office and shown to the Minorities Commission. The Minorities Commission incorporated these clauses almost verbatim in its recommendation." See CO 554/1548, no. 35 (Sept. 1958), reproduced in Lynn, ed., Nigeria, 1953-1960, supra note 8 539 at 540. Also, A.W. Snelling, assistant under-secretary of state wrote: "...this Commission simply reproduced as its own recommendations a draft with which the Colonial Office had surreptitiously provided it." See DO 35/10447 (1 Oct. 1958), reproduced ibid. 557 at 558. The reliance of the Commission on the work of the Colonial Office group was so secretive that even the keenest Nigerian politicians apparently had no idea. For example, Obafemi Awolowo, leader of the political party that submitted the proposal for a bill of rights at the 1957 Constitutional Conference lamented, "the draft Bill of Rights promised by the Secretary of State was never

143 [w]e sent to the Commission before they drafted their section [on fundamental rights] the draft of our conference paper on it. The Commission told us (and it is clear from the text) that they drew freely on our draft. This comes out a little curiously in the text. The Commission devote two short paragraphs 37 and 38 to an explanation of why they are concerned with provisions about fundamental rights. Then without further preamble they set out six pages of specific recommendations unsupported by any detailed commentary. The section inevitably reads very abruptly, but I hope that in acting with so helpful an intention the Commission have not in way queered our pitch by disclosing our hand in detail.42

It was in the 1950s that the first independence constitutions with a bill of rights

emerged. This coincided with, although was not an immediate result of, Britain's

acceptance of the European Convention. Hitherto, the Colonial Office was clearly

uninterested in, and sometimes vigorously opposed to, the inclusion of bills of rights in

colonial constitutions, as the experience of Nigeria in 195343 shows. Before the 1950s,

independence constitutions in the Commonwealth usually included only isolated clauses

stipulating non-discrimination, freedom of religion, or protection of property, as was the

case with India and Ceylon. By the mid 1950s, the attitude of the Colonial Office was

beginning to show some accommodation for constitutional bills of rights. There was an

indication as early as 1956 that Britain would be willing to consider in the case of Nigeria

a proposal similar to that peremptorily rejected in 1953.44 By 1959, however,

constitutional bills of rights were no longer a novelty in countries emerging from British

circulated, as agreed, to the Nigerian Governments, nor was it prepared until more than a year after the recommendations of the Minorities Commission had been accepted"(!) See O. Awolowo, Awo: the Autobiography of Chief Obafemi Awolowo (Cambridge: Cambridge University Press, 1960) at 209. 42 See CO 554/1541 (17 July 1958), reproduced in Lynn, ed., Nigeria, 1953-1960, supra note 8, 497 at 503. 43 See supra, notes 21-23 and accompanying text. 44 Simpson, ibid, at 864-65

144 dependency. What was unique about the Nigerian Bill of Rights was that it marked a

departure from the Colonial Office policy hitherto on constitutional bills of rights. The

two cases antecedent to Nigeria's - Sudan and Malaya - were a direct result of strong

local demand,45 and, at any rate, neither of them was based on the Convention.46 Nor

were they nearly as comprehensive as the European Convention. There was indeed no

appearance of an official preference for a European Convention model before

developments relating to Nigeria in 1957-58. Even as late as 1957, the Convention had no

influence on the Malayan constitutional bill of rights or on discussions of a possible bill

of rights for Ghana.47

Why, then, in the case of Nigeria was the European Convention chosen as a model? A possible reason is economy of effort. We recall that in 1957 the Nigeria

Constitution Conference requested the Secretary of State's legal officers to draw a bill of

In 1955, the Transitional Constitution of the Sudan became the first independence constitution of a British dependency that included a bill of rights (between 1899 and 1956 the Sudan was an Anglo-Egyptian condominium). The Constitution was a slight modification of the 1953 Self-Government Statute. See (1953) U.K.T.S. No. 47 at 13-42. The Statute was drawn up on the basis of the work of a commission comprised largely of Sudanese members (although it was dissolved before concluding its work). The Colonial Office had no role whatsoever. See Simpson, Human Rights and the End of the Empire, supra note 7 at 847-50. See also R.C. Mayall, "Recent Constitutional Developments in the Sudan" (1952) Int'l Affairs 310. Chapter II of the Statute (arts. 5-10) protected the right to freedom and equality; freedom from arbitrary arrests and confiscations; freedom of religion, opinion, and association; the rule of law; independence of the judiciary; and a right to constitutional remedies. These provisions were not altered in the Transitional Constitution. See S.A. Hussein, "Sudan: In the Shadows of Civil War and Politicisation of Islam" in A. A. An-Na'im, ed., Human Rights under African Constitutions: Realizing the Promise for Ourselves (Philadelphia: University of Pennsylvania Press, 2003) 342 at 345-46. An independent constitutional commission recommended the Malaya constitutional bill of rights. See Report of the Federation of Malaya Constitutional Commission 1957 (London: H.M.S.O., 1957) at 69-70. All but one of the clauses recommended were incorporated into Malaya's independence constitution. See Constitutional Proposals for the Federation of Malaya Cmnd. 210 (London: H.M.S.O., 1957) at 18. There was a strong local demand for a constitutional bill of rights, most especially articulated by the Alliance Party. 46 The Sudanese provisions were based on the Indian Constitution. Ivor Jennings was the draftsman of the Malaya Constitution. It has been stated recently that from available record, "it is clear that his proposals were not derived from either the European Convention or from the Universal Declaration of Human Rights." See Simpson, Human Rights and the End of the Empire, supra note 7 at 86 In. 47 Simpson, ibid, at 851

145 rights for its consideration. A comprehensive bill of rights was required. A challenge of this kind was not presented in any previous case. Drafting bills of right is one area in which the Colonial Office had very limited expertise. English lawyers and bureaucrats have been trained to believe that the common law affords better protection of rights than a constitutional bill of rights. In the circumstances, the Convention was a handy "standard form" that could be adapted quickly to the need at hand with little additional work.

Indeed, it is clear from the Minorities Commission report that all the help it received from the Colonial Office staff was more or less the bare provisions of the Convention.473

So unfamiliar was the new terrain that pockets of doubt remained within the

Colonial Office on the wisdom of the new direction of colonial policy. For example,

A.W. Snelling, an assistant under secretary of State in the Commonwealth Relations

Office, wrote that

[w]hen we saw the Colonial Office draft [clauses on fundamental rights] we were horrified. ...I believe that these are in general more detailed and wide-ranging fundamental rights than have ever been entrenched in the constitution of any country. ...I believe that Nigeria will be born to "freedom" shackled hand and foot as no country has ever been before.

"The Constitution, which is in process of being in Lancaster House, frightens me," he noted in another memo.

a The Foreign Office, unlike the Colonial Office, was in the post-war period actively involved in drafting human rights treaties and instruments both at the United Nations and the Council of Europe. For an extensive account, see Simpson, Human Rights and the End of the Empire, supra note 7 at c. 7-10 and 13- 15 respectively. See also G. Marston, "The United Kingdom's Part in the Preparation of the European Convention on Human Rights, 1950" (1993) 42 Int'l & Comp. L.Q. 796. It may well be therefore that the Colonial Office may have been legitimately motivated by a sense of British "ownership" of the European Convention in readily modeling the Nigerian Bill of Rights on it. It remains the case though that this unprecedented exercise marked a significant policy shift in the Colonial Office. 48 DO 35/10447 (1 Oct. 1958), reproduced in Lynn, ed., Nigeria, 1953-1960, supra note 8, 497 at 557-58.

146 It is the most rigid and therefore the most brittle Constitution so far as I know ever devised. All the Nigerians sitting round the table have been mainly concerned to limit the power that other Nigerians sitting round the table will be able to use against them after independence. Hence for instance the embodiment in the Constitution as "Fundamental Rights" of virtually the whole of the European Human Rights Convention (which incidentally we in this country cannot even apply in Northern Ireland), so deeply entrenched that no single human rights can be abrogated (save in a declared public emergency) in the slightest degree except after a two thirds majority in both Houses of the Federal Parliament and a simple majority in the Parliaments in two of the three . 49 Regions.

DO 177/84 (21 Oct. 1958), reproduced ibid. 568 at 569.

147 II. NORMATIVE CONTENT AND SOURCES

A. Arts 1-11 & 14 of the European Convention on Human Rights

The content of the Nigerian Bill of Rights is almost coextensive with the European

Convention (less its protocols). They both secure only individual rights. There is no provision explicitly dedicated to communal goods or formulated as a collective right.

(The Convention guarantee of non-discrimination of national minorities is not included in the Nigerian text.) Nor is there any provision on social rights. In addition, the Nigerian

Bill of Rights does not include a right to democratic governance or of individuals to participate in governance.50

In order to gain a proper perspective of the (potential) normative significance of provisions of the Nigerian Bill of Rights derived from the European Convention, we shall in the next few pages closely compare the two texts. (The Nigerian texts of 1959 and

1960 respectively are reproduced in full in the appendices to the present study.)

Right to life (1959, s.l; 1960, s.17). Article 2 of the Convention opens with the phrase

"Everyone's right to life shall be protected by law." This is the equivalent of "everyone has the right to life" in Article 3 of the Universal Declaration of Human Rights. The

Convention phrase is not included in the Nigerian text. The draftsman may have regarded a general phrase of this kind as inappropriate in legislation, at least from the point of view of the English lawyer.51 Yet something normatively valuable is lost without it.

The importance of this in relation to other rights is argued in J. Waldron, "Participation: the Right of Rights" in Law and Disagreement (Oxford: Oxford University Press, 1999) at 232-54. 51 "Some allowance," admitted Jennings, "must be made for the prejudices of an English lawyer, who is apt to shy away from a general proposition like a horse from a ghost. .. .In other systems more merit is accorded to generalities; but those systems also accord more merit to juristic analysis than to judicial

148 Furthermore, the Nigerian text contains additional limits to the right to life beyond what is in the Convention. Thus defence of property, suppression of a mutiny, effecting an arrest or preventing escape of a person detained, or preventing the commission by a person of a crime may be sufficient to legally justify taking life under the Nigerian Bill of

Rights. None of these is found in the Convention clause. Perhaps they were inserted in the Nigerian text because these were already recognized grounds for justifiable homicide under the Nigerian Criminal Code.52 If that were so, it would seem that the draftsman

pronouncements." See I. Jennings, Some Characteristics of the Indian Constitution (Madras: Oxford University Press, 1953) at 48. 52 See generally Nigerian Criminal Code, c. 25, cap. 77 Laws of the Federation 1990 (originally enacted for Northern Nigeria in 1904, but extended to the entire country in 1916). The most pertinent provisions are the following: S. 271. When a peace officer or a police officer is proceeding lawfully to arrest, with or without warrant, a person for an offence which is a felony, and is such that the offender may be arrested without warrant, and the person sought to be arrested takes flight in order to avoid arrest, it is lawful for the peace officer or police officer and for any person lawfully assisting him, to use such force as may be reasonably necessary to prevent the escape of the person sought to be arrested, and, if the offence is such that the offender may be punished with death or with imprisonment for seven years or more, may Mil him if he cannot by any means otherwise be arrested. [Emphasis added] S. 272. When a person who is not a peace officer or police officer is proceeding lawfully to arrest, without warrant, another person for an offence which is such that the offender may be arrested without warrant, and when any person is proceeding lawfully to arrest another person for any cause other than such an offence, and, in either case, the person sought to be arrested takes flight in order to avoid arrest, it is lawful for the person seeking to arrest him to use such force as may be reasonably necessary to prevent escape. But this section does not authorize the use of force which is intended or is likely to cause death or grievous harm. [Emphasis added] S.273. When any person has lawfully arrested another person for an offence, it is lawful for him to use such force as he believes, on reasonable grounds, to be necessary to prevent the escape or rescue of the person arrested. But, if the offence is not one which is such that the offender may be arrested without warrant, this section shall not authorize the use of force which is intended or is likely to cause death or grievous harm. [Emphasis added] S. 277. It is lawful for a peace officer to use or order to be used such force as he believes, on reasonable grounds, to be necessary in order to suppress a riot, and is reasonably proportioned to the danger he believes, on reasonable grounds, is to be apprehended from it continuance. S. 282. It is lawful for any person who is in peaceful possession of a dwelling house, and for any person lawfully assisting him or acting by his authority, to use such force as he believes, on reasonable grounds, to be necessary in order to prevent the forcible breaking and entering of the dwelling house, either by night or day, by any person whom he

149 desired to avoid a conflict between the right to life and existing standards in the criminal law.5 a This objective is further reinforced by inclusion of a separate clause immunizing the Criminal Code from constitution challenge.

The use of force in any part of Nigeria in circumstances in which and to the extent to which it would be authorized in that part on the first day of November, 1959, by the Criminal Code Law established by the Criminal Code Ordinance, as amended, shall be regarded as reasonably justifiable [force].

The foregoing clause apart, the extensive qualification of the limitations to the right to life in the Nigerian provision is unfortunate. Whatever protection is formally provided is in reality simply surrendered to the arbitrariness of "circumstances permitted by law." In effect, the Bill of Rights does not set any higher standard than a colonial

Criminal Code. This truncation of the right to life clearly suggests some anxiety to ensure that the Bill of Rights does not profoundly affect public policy and existing legislation.

Torture or Inhuman Treatment (1959, s.2; 1960, s.18). The first paragraph of this provision virtually reproduces the text of Article 3 of the Convention. Again, like the right to life provision, there is annexed a clause immunizing punishments prescribed by extant laws. The presumptive intent here also is to neutralize any immediate effect of the

Bill of Rights on public policy. These immunities were operative for thirty years, until the

Nigerian Constitution of 1979 eliminated them. But they remain in most neo-Nigerian

believes, on reasonable grounds, to be attempting to break and enter the dwelling house with intent to commit a felony or misdemeanour therein. 52a This clause, wrote, Dr. Elias, "is intended to ensure that the provisions of the Criminal Code of Nigeria with respect to the use of force by State agencies for maintenance of law and order are not in any way affected by the constitutional guarantee of the individual's right to his life." See T.O. Elias, "The New Constitution of Nigeria and the Protection of Human Rights and Fundamental Freedoms" (1960) 2 Int'l Comm. Jur. Rev. 30 at 33 (Elias was Attorney General of Nigeria from 1960-72 and Chief Justice 1972- 75).

150 bills of rights in Africa and the Caribbean. (In chapters 4 and 5 we shall discuss how the

Supreme Court grappled with the normative significance of the right to life and the protection against inhuman or degrading treatment.)

Slavery or Forced Labour (1959, s.3; 1960, s.19). This virtually reproduces Article 4 of the European Convention.

Personal Liberty (1959, s. 4; 1960, s. 20). Article 5 of the Convention begins with the statement: "everyone has the right to liberty and security of person." Except for this opening phrase, the Nigerian Bill of Rights includes virtually the entire European text, but uses the simpler term "personal liberty." This, as it turns out, is a perfect equivalent for the preferred terms of Article 5, which according to the Convention jurisprudence denote "physical liberty and security."53 While, in most African countries, the right of personal liberty was subject to a power of administrative (preventive) detention reserved to the government, this was never so with the Nigerian Bill of Rights, except, by virtue of the derogation provision, when there is a proclamation of a state of emergency.53a

Therefore, in Nigeria, administrative detention, a power readily resorted to by the British

See P. van Dijk & GJ.H van Hoof, Theory and Practice of the European Convention on Human Rights 3rd ed. (The Hague/ Boston: Kluwer Law Int'l, 1998) at 344-45. 53a Although according to the text, a person may lawfully be deprived of his liberty "to such extent as may be reasonably necessary to prevent his committing a criminal offence," to assume that this is a justification of a general power of preventive detention is incompatible with the clear purpose of the provision, protecting individuals against arbitrary detention. Construing the identical text of the European Convention (Art. 5 (l)(c)), the European Court of Human Rights noted, "such an assumption, with all its indications of arbitrary power, would lead to conclusions repugnant to the fundamental principles of the Convention." See Lawless v. Ireland (1961) 1 E.H.R.R. 15 at para. 14.

151 colonial administration, became immediately unconstitutional at the end of colonial rule.

The non-recognition of administrative detention in the Nigerian text is even more instructive, because immunities of existing laws were included in the right to life and human dignity provisions. A measure of the significance of the personal liberty provision of the Bill of Rights may be measured by the understandable alarm of senior colonial official that the government may as a result become hamstrung:

...it seems to me that there is a great danger that after independence Nigeria will become the prime target in Africa for Communist infiltration and subversion. I therefore spoke with the Colonial Secretary and said so far as I could see this draft would prevent the Federal Government from taking powers to lock up the communists without public trial and that in the nature of things a trial could probably not be public because it would involve the disclosure of information of the M.I.5 type. The Colonial Secretary agreed that the Federal Government must have such power and thought it was not good enough to restrict its use to wartime or time of proclaimed public emergency.5

Fair Hearing and Access to Courts (1959, s. 5; 1960, s. 21). This provision, which combines the text of European Convention's articles on due process (Arts. 6 & 7), is the most important contribution of the draftsman of the Bill of Rights. The function of this clause is a comprehensive protection relating to fair determination of rights and

For a critical account of the British colonial practice, see A.W.B. Simpson, "Round Up the Usual Suspects: The Legacy of British Colonialism and the European Convention on Human Rights" (1996) 41 Loy. L. Rev. 629 at 646-79. 54 Minute by A.W. Snelling, DO 35/10447 (1 Oct. 1958), in Lynn, ed., Nigeria, 1953-1960, supra note 6 at 558. A proposal to modify the Nigerian Constitution to allow preventive detention was introduced by the Prime Minister at an All Party Constitutional Conference in July 1963, but was withdrawn because of strong opposition. See J.P. Mackintosh, Nigerian Government and Politics (London: George Allen & Unwin, 1966) at 43-47.

152 obligations. Central to this regime are the rights of accused persons. Unlike the European

Convention, the Nigerian text separates rights in criminal proceedings from the general right of access to court for the determination of rights and obligations. In addition to elements stipulated in Article 6(2) and (3) and Article 7 of the Convention, the Nigerian provision expressly includes the rule against double jeopardy. It also requires that a written record be kept of criminal proceedings and that the person tried shall have a right to a copy.55 The importance of this is that persons convicted of criminal offences would be able to more effectively exercise right of appeal. Oppressive criminal prosecutions before inferior courts were not uncommon during colonialism, or even thereafter. It was difficult to check this abuse unless a higher court was able to review the record of proceedings and evidence. The Nigerian provision, on the other hand, does not include the European Convention's clause on the provision of legal assistance in criminal trials.

This, however, may be an understandable consequence of the limited availability of legal services in Nigeria in the late 1950s and 1960s56

If the Nigerian text improves on the European Convention's protection of rights of accused persons, the same may not be said of administrative justice. The Bill of Rights contains a problematic provision on administrative decision-making not found in the

European text. A proviso apparently intended to restrict application of the right to judicial determination of one's civil rights and obligations, it stipulates that that right

55 "When a person is tried for any criminal offence, the court shall keep a record of the proceedings, and the accused or any person authorized by him in that behalf shall be entitled to obtain copies of the record within a reasonable time upon payment of such fees as may be prescribed by law." See 1959, s.5(6); 1960,s.21(6). 56 The Constitution of 1979, although does not recognize a right to legal assistance in criminal cases, included a right, subject to legislative implementation, to legal aid in (civil) proceedings to enforce a provision of the Bill of Rights. See Nigeria Const. 1979, s. 42(4)(2)(b).

153 shall not invalidate any law by reason only that it confers on any person or authority power to determine questions arising in the administration of a law that affect or may affect the civil rights and obligations of any person.57

This cryptic text, which is not followed in neo-Nigerian bills of rights, is hardly a model provision on administrative justice. "Dicey might have looked askance at the proviso," wrote Stanley de Smith.58 On the face, it seems less concerned with fair administrative decision-making than with protecting administrative decisions or possibly immunizing them from judicial review. The latter is, however, not a conclusion to be lightly drawn. A less cynical view is that this proviso is naturally to be intended to be read very closely with, and subject to, the main provision's requirement of fair decision-making.58a This, significantly, has been the approach of Nigerian courts.

57 1959, s. 5(1); 1960, s. 21(1). 58 See de Smith, "Fundamental Rights," supra note 6 at 221. One of Africa's ablest constitutional lawyers, Benjamin Nwabueze has similarly remarked, "The exact meaning and effect of this proviso is not clear." See B.O. Nwabueze, Judicialism in Commonwealth Africa: The Role of Courts in Government (London: Hurst & Co., 1977) at 220. 58a ^qt js nQt tQ ke reacj" Nwabueze has suggested, "as if it says:" 'Provided nothing in this subsection shall invalidate any law by reason only that it confers on any person or authority power to determine without recourse to a court or other independent and impartial statutory tribunal questions arising in the administration of a law that affect or may affect the civil rights and obligations of any person.' If this view is correct, then, after a determination by a minister, his official or other non-independent administrative authority, a person aggrieved by it is still entitled to have the rights and obligations in question determined on their merits either afresh or on appeal by a court or other independent or impartial statutory tribunal. His right is not limited to supervisory control by the court to ensure that the determination is within the jurisdiction of the administrative authority or is not affected by an error of law appearing on the face of the determination. Accordingly, if the determination by a minister, his officials or some other non-independent administrative authority is declared by the enabling statute to be final and conclusive, meaning not open to appeal, that would be inconsistent with the substantive

154 Private and Family Life (1959, s.6; 1960, s.22).

Every person shall be entitled to respect for his private and family life, his home and his correspondence.

This rather obscure text, which reproduces Article 8 of the European Convention, is potentially one of the most dynamic provisions of the Bill of Rights. It is the only provision of the Nigerian Bill of Rights that is radically modified in neo-Nigerian bills of rights. If the term "respect for private and family life" is recognition of a constitutional right to privacy or autonomy of the individual, the interest intended to be protected goes

guarantee and invalid; a fortiori it would be invalid if it were declared not to be questionable in any legal proceedings whatsoever. See Nwabueze, ibid, at 220-21 [emphasis in original]. On the other hand, Robert Seidman (discussing the parallel provision of the Constitution of 1963, s. 22(1)), has offered a different perspective: If s. 22(1) is regarded as a constitutional extension of the common law presumption of natural justice, the proviso to s. 22(1) immediately falls in place. The proviso seemingly has two complementary functions. In the first place, it suggests that the mere absence of a specific requirement of a hearing will not ipso facto render the enabling statute unconstitutional; like the presumption of natural justice, s. 22(1) will be read into the enabling statute to require a hearing. Such a proviso would be pointless if s. 22(1) commanded that all such determinations were to be brought before a court (or a tribunal as independent as a court). In the nature of things, statutes which constitute such tribunals expressly detail the hearing requirements. In the second place, the proviso suggests that there are "decisions" arising in the course of administering a statute which "affect or may affect" a person's civil rights and obligations but which are not "determinations" (so that the hearing requirement is not applicable). The principal "decisions" of this sort would seem to be embodied in delegated legislation. Delegated legislation is made invariably by bodies or persons who are intimately connected with Executive. Determinations under delegated legislation are almost invariably made by the Ministry or agency who enacted it. Precisely because the draftman of s. 22(1) expected that the "tribunal" which would hold the required hearing would be the same body or person which enacted the delegated legislation, he felt required to add the proviso, lest s. 22(1) appear to require hearings even on delegated legislation. On the other hand, if s. 22(1) is construed to require hearings before judges or equally independent tribunals in every case of a determination of a person's civil rights or obligations, it is difficult to make much sense out of the proviso. See R.B. Seidman, "Constitutional Standards of Judicial Review of Administrative Actions in Nigeria" (1964) 1 Nigerian LJ. 232 at 246.

155 far beyond the mere protection against arbitrary search that is found in later bills of rights.59 An initial difficulty is that privacy is a distinctly unfamiliar concept to the common lawyer.60 In addition, its core elements of personhood and individual autonomy are the quintessence of atomistic individualism, and may therefore be seem as European or Western values not readily transmissible elsewhere. The drafting of the Convention text was influenced by, although it is narrower in scope than, Article 12 of the Universal

Declaration of Human Rights.61 The European Court of Human Rights has developed elaborate Article 8 concepts of family life and private life. So far, Nigerian courts have not taken any notice of this jurisprudence. There is no question, however, that an activist application of these concepts may involve major public policy intervention by courts in areas of marriage, sexual orientation, and identity. This would be a substantial challenge for the institutional legitimacy of courts.

Freedom of Conscience & Religion (1959, s. 7; 1960, s. 23). This incorporates in part the text of Article 9 of the European Convention (discussed below under non-European

Convention sources).

In neo-Nigerian bills of rights, the provision is reformulated as protection solely against unreasonable searches and trespass: "no person shall be subjected to the search of his person or his property or the entry others on his premises." See, e.g., Sierra Leone Constitution 1961, s. 18(1); Uganda Constitution 1962, s. 23(1); and Kenya Constitution 1963, s. 20(1). Cf. Canadian Charter of Rights and Freedoms, s. 8 ("everyone has the right to be secure against unreasonable search or seizure"). 60 See Malone v. Metropolitan Police Commissioner (No. 2) [1979] 2 WLR 700. See also S.D. Warren & L.D. Brandeis, "The Right to Privacy" (1890) 4 Harv. L. Rev. 193. Dr. Elias observed that of the provisions of the Bill of Rights, this is "probably some of the most difficult, not only to define in objective terms, but also to apply to specific situations of family life." See Elias, "New Constitution of Nigeria," supra note 52a at 36. 61 UNGA Res. 217A (III), 10 Dec. 1948 ("No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor attacks upon his honour and reputation...."). 62 See J. Liddy, "The Concept of Family Life" [1998] Eur. H.R.L. Rev. 15; M.W. Janis, R.S. Kay & A.W. Bradley, European Human Rights Law: Text and Materials 2nd ed. (Oxford: Oxford University Press, 2000) 254-72. 63 See Dudgeon v. United Kingdom (1981) 4 E.H.R.R. 149. For a discussion of the "private life" jurisprudence of the Court, see Janis, Kay & Bradley, ibid, at 272-307.

156 Freedom of Expression (1959, s.8; 1960, s. 24). Article 10 of the European Convention provides that the freedom of expression "shall include freedom to hold opinions and receive and impart information and ideas without interference by public authority...."

The italicized words do not appear in the Nigerian text. This may indicate a potential horizontal application of this provision. One limitation of Article 10, and hence the

Nigerian provision, is that it does not include any specific privileges of the press. Indeed, unlike, say, the Canadian Charter of Rights, the word "press" is not mentioned at all. This factor may be a clear disadvantage where a court is disposed to a narrow text-based interpretation of the provision. In chapter 5, we shall criticize the approach of the

Supreme Court of Nigeria.

Freedom of Peaceful Assembly & Association (1959, s.9, 1960, s.25). This provision modifies Article 11 of the European Convention in that it explicitly recognizes a right to form a trade union or other associations. Only the former is mentioned in the European text.

Non-Discrimination (1959, s.ll; 1960, s.27). One of the most remarkable features of the

Bill of Rights is the absence of an equality clause. The Minorities Commission recommended Article 14 of the European Convention, which requires equality in application of fundamental rights, with additional provisions on non-discrimination in application of any law or administrative action.64 Perhaps a simple general equality

See Minorities Commission Report, supra note 16 at 102. The Report does not attribute this provision to any source, although very similar texts are found in the Sudan Self-Government Statute and the Malaya and Pakistan constitutions respectively.

157 clause would have been more effective. In the event, Article 14 was not incorporated in the Bill of Rights. It is doubtful in the circumstances if it could have added any value to

the other recommended provision, especially as the article is concerned only with non­

discriminatory application of Convention provisions.

There remains a definite normative deficit because of absence of a general

equality protection. Modern human rights decision-making would be much poorer without a dynamic equality rights jurisprudence. This dynamism is best afforded by a general or open-ended equality provision rather than protection of non-discrimination for particular purposes. In any case, the categories included in the Nigerian provision are very limited. For example, neither race nor gender is included.

B. Non-European Convention Sources

1. Freedom of Religious Education (Constitution of Pakistan 1956).

The right to religious freedom (1959, s. 7; 1960, s. 23) is based partially on Article 9 of the European Convention.68 However, apart from fully incorporating the text of that

In his review of the Indian Constitution, Jennings argued that there was danger in including a general clause of equality before the law (Art. 14) along with separate clauses on non-discrimination on specific grounds (Arts. 15 & 16). "Thus, the courts are faced with the problem whether a type of discrimination not covered by article 16 is discrimination within the meaning of article 15 or whether the classes of persons not covered by article 15 are covered by article 14. If both questions are answered in the affirmative, sections [articles] 15 and 16 are quite unnecessary; but, since nobody is allowed to assume that two sections of a Constitution are mere verbiage, they must mean something, and what may possibly be read into the Constitution is that article 14 does not mean what it says." See Jennings, Indian Constitution, supra note 51 at 43. 66 See Vasak, "European Convention beyond Europe," supra note 6 at 1218 ("The provisions relating to discrimination are much more detailed in the Nigerian Constitution than in the Convention. ...the prohibition of discrimination is general in the Nigerian Constitution whereas in the Convention it covers only those rights and freedoms guaranteed by the Convention itself). 67 But see Unity Dow v. Attorney General [1992] LRC (Const.) 623, where the Supreme Court of Botswana read in "sex" as a prohibited ground of discrimination in the equivalent provision of that country's neo-Nigerian bill of rights. 68 However, unlike the European text, the Nigerian provision speaks of a right to "manifest and propagate one's religion or belief."

158 article, the Commission recommended inclusion of additional elements taken from the guarantee of the right to religious education in Article 13(1) & (2) of the Pakistan

Constitution of 1956. According to the Commission, an adequate protection of religious freedom must specifically safeguard:

(a) freedom to hold and express freely any religious convictions or other beliefs and to publish them by any means not contrary to public order. (b) Freedom to assemble peacefully for worship and for the peaceful and courteous proclamation of a religion or belief. (c) Freedom to sell and distribute literature which advances the teaching of any religion or belief provided that it is expressed with courtesy to other religions or beliefs. (d) Freedom to change one's religion or belief (e) Freedom to have one's children educated when possible in a religion of one's own choice or if that is impossible in no other. (f) Freedom to conduct the affairs of one's religion or belief without state interference In all these respects the state should have the right to intervene in specific instances and for defined periods in the interests of public tranquility or safety.70

The Commission was satisfied that the European provision complemented with elements drawn from the Pakistan Constitution "cover the provision suggested to us by the Christian bodies whom we heard."71 It is not clear, however, why the Commission did not consider as well the right of a religious community or denomination to establish and

(1) No person attending any educational institution shall be required to receive religious instruction or take part in any religious ceremony or attend religious worship if such instruction, ceremony or worship relates to a religion other than his own. (2) No religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any educational institution maintained wholly by that community or denomination." See Minorities Commission Report, supra note 16 at 102

159 maintain educational institutions of its choice. The importance of such protection can

hardly be exaggerated. This provision of the Pakistan Constitution, notes a commentator,

"is in keeping with Article 30 of the Indian Constitution which allows all minorities, both

religious and linguistic, the right to establish and administer educational institutions, and

which stops the State from discriminating against such institutions in the granting of aid.

In this way an important principle of religious freedom namely the freedom from state

supported proselytizing has been granted."73

More importantly, the final text of the Nigerian provision does not appear to

accord religious freedom a priority equal to Article 9 of the European Convention. While

every aspect of religious freedom under the Nigerian Constitution may be restricted in the

public interest, under the Convention only the freedom to manifest one's religion or

beliefs may be lawfully subject to limitations. Thus, the freedom to change one's religion

or beliefs mentioned in Article 9(1), for example, may not be similarly restricted.

2. Freedom of Movement (Constitution of The Federation of Malaya 1957)

The European Convention did not have any provision specifically dedicated to the

freedom of movement before 1963.74 The freedom of movement clause of the Nigerian

Bill of Rights (1959, s. 10; 1960, s. 26) is derived from Article 9 of the Malaya

Constitution, 1957.75 It is not clear, however, why the Commission did not recommend

72 Pakistan Constitution, 1956, Art. 13(5) ("Every religious community or denomination shall have the right to establish and maintain educational institutions of its own choice, and the State shall not deny recognition to any such institution on the ground only that the management of such institution vests in that community or denomination"). 73 K.J. Newman, Essays on the Constitution of Pakistan (Dacca: Pakistan Co-operative Book Society, 1956) at 251-52 (includes full text of the 1956 Constitution). 74 Protocol No. 4, Art. 2 (Sept. 1963). 75 (1) No citizen shall be banished or excluded from the Federation.

160 the complete Malayan provision. It gave attention to Article 9(2) (right of citizens to move throughout the country and reside anywhere), but ignored the protection against expulsion of citizens or denial of entry (Art. 9(1)). In addition, the Commission added a drastic qualification to the right of residence:

Subject to any restriction imposed by any law relating to the security of the country, public order, public health, or the punishment of offenders, every citizen has the right to move freely throughout the country and to reside in any part thereof: provided that the right of residence shall not in itself convey a right to acquire land or other property.

Although no explanation is provided, it is obvious that this was intended as assurance to local communities that existing legal capacity or incapacity of non- indigenous settlers to acquire land would remain unaffected by a constitutional right of residence.763 (It would be recalled that the Commission also did not recommend constitutional protection of the right of property.) However, if the objective was limited to land title, it is difficult to make any sense of the "or other property" in the

Commission's statement.

To avoid unnecessary mischief, the qualification of the right of residency suggested by the Commission was carefully crafted in the final version of the Bill of

(2) Subject to any restriction imposed by any law relating to the security of the Federation, public order, public health, or the punishment of offenders, every citizen has the right to move freely throughout the Federation and to reside in any part thereof." 76 See Minorities Commission Report, supra note 16 at 101 (emphasis added). 76a In his commentary on this provision, Dr. Elias said the restricted right of residence was "because the land legislation relating to Northern Nigeria forbids non-indigenous Nigerians, especially those from the other Regions of the Federation, from holding any right in the land of Northern Nigeria other than a right of occupancy, that is, a form of leasehold interest. ...Northern leaders...fear the possible expropriation of many peasant landholders by sophisticated property speculators. Yet the same might justifiably be said of some Northern merchants and property dealers in relation to land in certain areas of the south." See Elias, "New Constitution of Nigeria," supra note 52a at 38.

161 Rights. This included incorporation of elements from Article 9(1) of the Malaya

Constitution. Thus, the freedom of movement clause in the Nigerian Independence

Constitution was framed as follows:

(1) Every citizen is entitled to move freely through Nigeria and to reside in any part of thereof; and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto.76b (2)... (3)... (4) Nothing in this section shall invalidate any law by reason only that the law imposes restrictions with respect to the acquisition or use by any person of land or of other property in Nigeria or any part thereof.

However, it remains curious still that the prohibition against "banishing" of citizens in Malaya's Article 9(1) does not appear in the Nigerian provision. Internal

"deportation" (rustication) was routinely resorted to by British colonial administration in

Nigeria and elsewhere in Africa. Sadly, this power continued to be exercised by the post- colonial administration in many African countries. It is strongly suspected that a prohibition of banishment was deliberately omitted in the constitutional right of freedom of movement. Perhaps its inclusion may not have necessarily dissuaded the authorities in post-colonial Africa from this great abuse of human rights. But at least, it would have provided some solid basis for a constitutional challenge.

3. A Right to Effective Remedy? (The Sudan Self-Government Statute 1953).

The "question whether the right to personal freedom or the right to freedom of worship is likely to be secured," argued Dicey, "does depend a good deal upon the answer to the

76b The Constitution of 1979 added the words "or exit therefrom." This, in the view of the Supreme Court, entitles every Nigerian citizen to a passport, and arbitrary seizure or revocation of a passport is unconstitutional. See Director of State Security v. Agbakoba [1999] 3 NWLR 314.

162 inquiry whether the persons who consciously or unconsciously build up the constitution of their country begin with definitions or declarations of rights, or with the contrivance of remedies by which rights may be enforced or secured."77 Although the European

Convention includes a right to an effective remedy before a national authority (Article

13), how a remedy may be obtained is determined by municipal law of parties to the

Convention. As a result, a search for an appropriate model of judicial recourse has to look beyond the Convention. The Commission recommended the following provision:

The Enforcement of Rights (a) Any person may apply to the High Courts for protection or enforcement of any of the provisions as to fundamental rights contained in the Constitution and the High Courts shall power to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of these rights. (b) Any person may apply to a magistrate to enquire into an alleged violation of one of the provisions for fundamental rights and to make a report on his enquiry to the High Court concerned.78

Although the Report does not attribute this text to any source(s), the primary provision (a) corresponds practically word for word with Article 10 of the 1953 Sudan

Self-Government Statute.79 It is quite possible that the commissioners were unaware of this genealogy because the Colonial Office supplied the Commission with the

A.V. Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. by E.C.S. Wade (London: Macmillan, 1959) at 198. 78 See Minorities Commission Report, supra note 16 at 103. 79 "Any person may apply to the High Court for protection or enforcement of any of the rights conferred by this Chapter, and the High Court shall have power to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the said rights."

163 provision. Sudan's Article 10 was almost certainly derived from Article 32 of the Indian

Constitution.8'it is interesting that although India's Article 32 was not its direct source, the final form of the Nigerian provision, which is reproduced in all neo-Nigerian bills of

rights, is actually closer to the Indian than to the Sudanese text.

(1) Any person who alleges that any of the provisions of this Chapter has been contravened in any territory [i.e. any part of Nigeria] in relation to him may apply to the High Court of that territory for redress. (2) ...the High Court...shall have original jurisdiction to hear and determine any application made to it in pursuance of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, securing the enforcement, within that territory of any rights to which the person who makes the application may be entitled under this Chapter.82

There is no question that the right to judicial remedies provides the lifeblood of the Bill of Rights. In India, it has been called the "very soul of the Constitution."83 Although its terms speak of an "appropriate" remedy, instead an "effective remedy," the Nigerian provision was probably intended to be comprehensive. It was suggested very early that it was accordingly open to courts "to issue orders in the nature of prerogative orders, or

Simpson, Human Rights and the End of Empire, supra note 7 at 867. 81 See ibid, at 848 (author states that the Indian Constitution was the source of 43 articles of the Sudan Self-Government Statute). 82 Nigeria Independence Constitution, s. 31. The second half of the recourse provision recommended by the Commission (jurisdiction of magistrates) was discarded. However, as originally constitutionalized, prior to the Independence Constitution, the jurisdiction of the High Court was qualified in the following terms: "(2) If any question regarding the provisions of the Sixth Schedule to this Order in their application to a Region arises in the course of proceedings before any court other than the High Court of the Region that court may hear and determine that question; (3) Nothing in this section shall prevent any court established for a Region other than the High Court from exercising jurisdiction in respect of any or all of the matters referred to in subsection (1) of this section in accordance with any provision in that behalf in any law in force in the Region." See Nigeria (Constitution) Order in Council 1954, 245(2) & (3), inserted by Nigeria (Constitution) (Amendment No. 3) Order in Council, L.N. 228 of 1959, s. 69 (emphasis added). 83 B.R. Ambedkar, chair of the Constituent Assembly's Drafting Committee, quoted in D.D. Basu, Introduction to the Constitution of India, 15th ed. (New Delhi: Prentice-Hall of India, 1993) at 122.

164 mandatory or prohibitory injunctions or in appropriate cases to apply other normal remedies ... or they can invent new forms of writ, order or direction."84 At the same time, it must be admitted that this provision is apparently narrower than Sudanese text, and certainly, in this sense, the Indian, in that it requires on the face that only an applicant

Of who is a victim of violation of human rights may apply for a judicial remedy. We shall examine the question more closely in chapter 4 §4B.

4. Right to Property

The Commission did not recommend a right to property. Apparently, no notice was Of- taken of protection of property under the European Convention. It is not obvious whether this was an oversight. It is quite possible that the omission may have been deliberate, since both the Malaya and Pakistan constitutions, the other sources considered by the Commission, include a right against deprivation of property without compensation.862 However, during the consideration of the recommendations of the

Commission, the Nigeria Constitution Conference discussed inclusion in the Bill of

Rights of a right to compensation for property compulsorily acquired, but agreed that an

M.G. de Winton, "Fundamental Rights in Nigeria" in L. Brett, ed., Constitutional Problems of Federalism in Nigeria (London: Sweet & Maxwell, 1961) at 60-61. See also Nwabueze, Nigerian Constitutional Law, supra note 27 at 402 (author states that the provision enables a court to "apply established remedies or invent new ones"). As the Zimbabwe Supreme Court said of the parallel provision of that country's Declaration of Rights, "it is difficult to imagine language which would give this court a wider and less fettered discretion." See In re Mlambo [1991] 2 Zimb. L. Rep. 339 at 355C (SC), [1992] 4 SA 144, 155J (ZS). 85 It may be argued that the Sudanese provision actually has the same effect, since remedies may only be granted "to secure to the applicant the enjoyment of any of the rights." But there is clearly no victim reference in India's Art. 32. 86 Protocol No. 1, Art. 1 (1952). 86a Cf. omission of a right to property in the Canadian Charter of Rights and Freedoms. For a discussion, see A. Alvaro, "Why Property Rights were Excluded from the Canadian Charter of Rights and Freedoms" (1991) XXIV Can. J. Pol. Sci. 309.

165 existing constitutional provision on the subject was sufficient. This provision was, however, not incorporated into the text of the Bill of Rights until the Independence

Constitution.

The constitutional guarantee is a limited right to property. The protection offered is essentially merely against expropriation without compensation.873 Furthermore,

"property" is strictly limited to "movable property" or an "interest in an immovable property." Any other form of property apparently falls outside constitutional protection.

The result is that even as a right against expropriation the right to property in the Nigerian

Bill of Rights is precarious.88

C. Scope of Rights

Like its European archetype, the Nigerian Bill of Rights' provisions on the right to private and family life and the freedoms of conscience, expression, peaceful assembly and association, and movement each include a clawback clause permitting restriction of the right in the public interest. This structure is easily problematic. Each paragraph, as

Marx said famously of the French Constitution of 1848, contains its own antithesis.

See 1958 Conference Report, supra note 28 at 8. 87a However, applying the parallel provision of Zimbabwe's Declaration of Rights (S.16(1)), the supreme court of that country decided that a statutory repeal of right to compensation does not violate prohibition against property being "compulsorily acquired." In the view of the Court, the act was simply an extinction, rather than acquisition, of rights. See Hewlett v. Minister of Finance (1981) 1 Zimb. L. Rep. 571,(1982)1 SA490(ZS). 88 Are debts, stocks or rights under a contract, for example, within the comprehension of the Constitution's terms? Does the constitutional right conceivably extend to protection against any action short of expropriation? For an analysis of the provision, see S. Ukhuegbe, "The Concept of 'Property' in the Nigerian Constitution," (1990) 1 U. Benin L.J. 106-113. See also T. Allen, "Commonwealth Constitutions and the Right not to be Deprived of Property" (1993) 42 Int'l & Comp. L.Q. 523, and more generally, his The Right to Property in Commonwealth Constitutions (Cambridge: Cambridge University Press, 2000). 89 See K. Marx, The Eighteenth Brumaire of Louis Bonaparte (1852) (Moscow: Progress Publishers, 1954) at 26 "Each paragraph," wrote Marx, "contains it own antithesis, its own Upper and Lower House, namely, freedom in the general phrase, abrogation of Freedom in the marginal note. Thus, so long as the

166 However, in the European Convention-Nigerian Bill of Rights framework, such criticism is perhaps overstated. Because there is, in the first place, an eminently manageable benchmark: any limitation on exercise of a particular right must be acceptable in a

"democratic society." In addition, the legitimate objective of restricting exercise of a right must be one of the specified public interests in a clawback provision. This, one would suppose, requires a rational connection between a restriction and the particular objective. Thus, formally at least, the rights limitation regime within the European

Convention-Nigerian Bill of Rights framework is presumably stricter than, for example, section 1 of the Canadian Charter of Rights and Freedoms. Restriction of rights is yet stricter where the broad clawback clauses do not apply. Indeed, the right against inhuman treatment and torture does not, going by the text, permit any restriction at all. Like the

European Convention, derogation is permissible in the Nigerian Bill of Rights during periods when emergency rule is in force. But the scope of permissible derogation is more extensive under the Convention. name of freedom was respected and only its actual realisation prevented, of course in a legal way, the constitutional existence of freedom remained intact, inviolate, however mortal the blows dealt to its existence in actual life." 90 The European Court has indicated the importance of this element on several occasions. In Handyside, it said, The Court's supervisory functions oblige it to pay the utmost attention to the principle characterizing a "democratic society." Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10, it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society." This means, amongst other things, that every "formality", "condition", "restriction", or "penalty" imposed in this sphere must be proportionate to the legitimate aim pursued. See Handyside v. United Kingdom (1979-80) 1 E.H.R.R. 737 at para. 49.

167 Formally, at least, the framework of limitations on rights under the Nigerian Bill of Rights is not flawed. Yet judges have liberally sustained restrictions on rights. We have alluded to this already in the previous chapter. A fuller discussion shall be undertaken in chapter 5 §1. In truth, even the earliest commentators on the Bill of Rights were worried that the substitution of "reasonable" and "reasonably justifiable"91 for

"necessary" and "absolutely necessary," used in the European Convention, could make rights more vulnerable to restriction. Generally, under the Convention, a right may be validly restricted only by a limitation that is prescribed by law and is necessary in a democratic society.92 In contrast, noted a learned observer, the "words 'reasonably justifiable in a democratic society' recur in the [Nigerian] Constitution like a refrain."

Does this indicate a difference in standard? It is certainly significant that the European

Court of Human Rights has held that the term "necessary" in the Convention does not have the flexibility of expressions such as "reasonable."94 Commentators on the Bill of

Rights were quick to observe that the introduction of that term in the Bill of Rights had apparently lowered the threshold of justifiable limitation of rights. "One sees immediately," argued Vasak, "that there is a difference between a measure which is necessary in a democratic society, and one which is only reasonably justified. The

91 See 1959, ss. 1(2), 6(2), 7(4), 8(2), 9(2) & 10(2); 1960, ss. 17(2), 22(2), 23(4), 24(2), 25(2), & 26(2). 92 See European Convention, Arts. 8(2), 9(2), 10(2), and 11(2). 93 See Smith, "Fundamental Rights," supra note 6 at 222. 94 See Handyside v. United Kingdom, supra note 90 at para. 48.

168 [Nigerian] Constitution leaves as a result more latitude to those in power, who must act as

reasonable men, than does the Convention."95

This is particularly apparent when one considers the right to life. Article 2 of the

Convention recognizes certain limitations where deprivation of life "results from the use

of force which is no more than absolutely necessary.'''' The Nigerian text speaks instead of

"such force as is reasonably justifiable" (1959, s. 1; 1960, s. 17), the same threshold for

lawfully limiting most other rights. This compares poorly with the Convention, which deliberately raises the threshold for lawful restriction of the right to life. As the European

Court has acknowledged, "use of the term 'absolutely necessary' indicates that a stricter

and more compelling test of necessity must be employed from that normally applicable when determining whether State action is necessary in a democratic society under paragraph 2 of Articles 8 to 11 of the Convention."96

Vasak, "European Convention beyond Europe," supra note 6 at 1219 (emphasis in original). See also de Smith, "Fundamental Rights" supra note 6 at 222: "What is necessary and what is reasonably justifiable may be fundamentally different in a given situation, and it is impossible to avoid the conclusion that of the two instruments the Constitution offers appreciably less scope for judicial review of legislation and administrative action." In the view of Sir Kenneth Robert-Wray, "this change of wording is, to say the least, most desirable. ...The word 'necessary' is too narrow in the context. That which is necessary is that which must be done if the desired result is to be achieved. The test is objective and, strictly, it leaves no room for any alternative. Anything less is insufficient; anything more is excessive." See Robert-Wray, "Human Rights" supra note 1 at 922 [emphasis in original]. However, as the European Convention jurisprudence, as with the Canadian Charter of Rights, has since shown, the concept of "necessity" is entirely judicially manageable in human rights decision-making: It emerges from the caselaw of the Convention organs that the "necessity" test cannot be applied in absolute terms, but required the assessment of various factors. Such factors include the nature of the right involved, the degree of interference, i.e., whether it was proportionate to the legitimate aim pursued, the nature of the public interest and the degree to which it requires protection in the circumstances of the case. See Xv. Sweden (1979) 16 D. & R. 68 at 73 (Eur. Comm. of Human Rights), cited in B. Hovius, "The Limitation Clauses of the European Convention on Human Rights: A Guide for the Application of Section 1 of the Charter" (1985) 17 Ottawa L. Rev. 213 at 242. 96 See McCann, Farrell and Savage v. United Kingdom (1995) 21 EHRR 97 at para. 149.

169 However, a less cynical view of the Nigerian approach is possible if one compares

it with, for example, Article 19 of the Indian Constitution, which guarantees certain

freedoms subject to "reasonable restrictions" by the State in the public interest, etc.

Likewise, section 1 of the Canadian Charter of Rights and Freedoms allows "reasonable

limits" to be imposed on the exercise of rights. In any event, reasonably justifiable restrictions in the public interest of rights under the Nigerian Bill of Rights in most cases must be such as is permissible in a democratic society.97

Nonetheless, it is probably true that departure from the language of the European

Convention was deliberate, and intended to make the Nigerian Bill of Rights as flexible as possible in application while minimizing its immediate impact on existing policy and legislation.98 Randolph Hahn has identified three primary factors that influenced the drafting policy.

First, there was the British tradition of drafting in detail. Secondly, there was the preference of the Nigerians to have the guarantees (and the limitations) expressed in specific terms. Thirdly, both local administrators and local politicians wanted reasonable freedom to administer, hence the detailed limitations to many of the guarantees. ...

But de Smith has suggested, "it can be argued that the words 'reasonably justifiable' in a democratic society' ought to be construed as leaving the legislator a wider area of discretion than the word 'reasonable' would leave him." However, he concedes, "the Nigerian courts need not be driven irresistibly to such a conclusion." See de Smith, "Fundamental Rights" supra note 6 at 223. A similar optimism was indicated by Vasak: "It is certain that the Nigerian judge who, it must be remembered, has an English training, will feel more at ease with the notion of "reasonableness" than with the concept of "necessity," practically unknown in Anglo-Saxon law. He will look for inspiration not only in English and American caselaw, but also, and perhaps mainly in the Constitutional case-law of India...." See Vasak, "European Convention beyond Europe," supra note 6 at 1219n. What is ignored in these assessments is that how far the judges can push their power depends less on textual formulae than on the judiciary's institutional resources. Indeed, as Sir Robert noted, "even the formula 'reasonably justifiable in a democratic society' may be found to be embarrassing for the courts, who would naturally be reluctant to tell a law-making body that either they are not the effective voice of a democratic society or that they are behaving unreasonably." See Robert-Wray, "Human Rights" supra note 1 at 923. 98 Thus, criminal punishments and use of force authorized by existing laws were immunized from legal challenge. See 1959, s. 1(3) & 2(2); 1960, s. 17(3) & s.!8(2).

170 [Ajfter considering the [European] Convention the draftsmen decided to re-draft it for Nigerian purposes because it, "smacked more of continental jurisprudence rather than Anglo-Saxon jurisprudence"99

The approach to drafting the Bill of Rights also reflected the recommendation of

the Minorities Commission100 and perhaps the intellectual climate of the day, which was

strongly influenced by the cynicism of Ivor Jennings, who, only a few years earlier,

admonished,

No draftsman can produce a formula which will be satisfactory even in the short run.... If there is a real demand for constitutional guarantees, they ought to be inserted, and the task of the draftsman should be to make them as flexible as possible. This may compel the use of vague phrases like "reasonable" and "in the public interest." The Courts of Law are not really competent to decide whether legislation is "reasonable" and "in the public interest," but if there is no alternative they may be called upon to do so.101

Hahn, Commonwealth Bills of Rights, supra note 1 at 37 (citing interview with Anthony Rushford, former U.K. Foreign and Commonwealth Office official and one of the draftsmen of Nigeria's independence Constitution). 100 The following commentary is annexed to text of Art. 8 of the Convention in the report of the Commission: ...it is to be noticed that [Art. 8] puts on the courts the burden of deciding whether an act by a public authority is "necessary in a democratic society in the interest of national security...." This places an improper burden on the courts and we think it may be desirable in drafting to define their responsibility, perhaps substituting "and in the eyes of a reasonable man would appear to be necessary in the interests of national security...." See Minorities Commission Report, supra note 16 at 99. 101 I. Jennings, Approach to Self-Government, supra note 37 at 101, 110 [emphasis added]. This passage reflected a transformation of an even more cynical Jennings, perhaps a result of own extensive field experience of constitutional drafting in Ceylon, Malaya, etc. A decade previously, he severely criticized inclusion of "reasonable" in Art. 19 of the Indian Constitution. "If constitutional lawyers had an Inn of their own," he wrote, "they would drink to the man who inserts 'reasonable' into a Bill of Rights. In article 19, the word appears five times.... 'Reason' used to be synonymous with 'equity', and equity, according to Selden, varied with the length of the Chancellor's foot. In the modern world, where constitutional litigation has become so expensive, the simile is not sufficiently apt. It varies not only with the length of the judge's foot but also with the depth of the plaintiffs purse or the length of his wristband. Everything is unreasonable until it has been pronounced to be reasonable by the highest possible Court." See Jennings, Indian Constitution supra note 51 at 47-48 (emphasis added).

171 Table 2: Formal Structure of Restrictions on and Derogation from Fundamental Human Rights

Right Public Public Order/ Public Public Defence Protecting/ Paternalism Derogation Morality Safety Interest Health Promoting Rights of others

Life X X X X X Torture or inhuman treatment Slavery or servitude X X 2 Personal liberty X X X1 x X 3 Fair hearing X X X X x X Privacy X X X X X X Conscience/ religion X X X X X X Expression X X X X X X Assembly/ association X X X X X X Movement X X X X X Discrimination X X Property X X X X X X X

Source: Adapted from Y. Ghai, "The Kenyan Bill of Rights: Theory and Practice" in P. Alston, ed., Promoting Human Rights through Bills of Rights: Comparative Perspectives (New York: Oxford University Press, 1999) 187 at 213-14.

1. See 1959, s. 4(1 )(e); 1960, s. 20(l)(e) [appendix 1 & 1A respectively]. 2. See 1959, s. 4(10(d); 1960, s. 20(1 )(d) 3. See 1959, s. 5(3)(a); 1960, s. 21(3)(a).

172 The result of what Hariri called the "British tradition of drafting in detail" is a statute- length Bill of Rights. Its relative wordiness - nearly 4000 words102 - has no doubt given it the orientation of a code.103 This character may have rendered a formalist approach naturally attractive, or even compelling, to judges invited to apply its provisions, especially in an environment where courts have low institutional legitimacy. This will be examined more closely in chapter 5 § 1.

The birth defects of the Nigerian Bill of Rights, identified in this chapter, are significantly offset by its potential vitality because of its direct emergence from a leading international rights treaty. Transjudicialism offers a means to use international law and soft law sources to develop a richer substantive content in the application of the Bill of

Rights. The experience of Nigeria, however, is that the limited institutional resources of the Supreme Court have engendered an institutional ethos of reticence, and transjudicialism has little influence. The profile of the justices and of potential candidates for the Court, discussed in Chapter 3, shows an institution generally disinclined to active intervention in major areas of public policy. The Court has relatively little opportunity to do so any way because only a small number of rights cases reach its docket (discussed in Chapter 4).

The Independence version of the Bill of Rights (appendix 1A) contains 3,851 words (the original version of 1959 had just over 3000 words. The difference results from inclusion of a right to property and to remedy in the 1960 version). 103 See D.A. Strauss, "Afterword: The Role of a Bill of Rights" (1992) 59 U. Chi. L. Rev. 539 at 540- 48, reprinted in G.R. Stone, R.A. Epstein & C.R. Sunstein, eds., The Bill of Rights in the Modern State (Chicago: University of Chicago Press, 1992) 539-65.

173 Chapter Three

THE SUPREME COURT: EVOLUTION OF ITS JURISDICTION AND RECRUITMENT POLICY

In this chapter and the next, we shall examine, in part, the evolution and the institutional character of the Supreme Court of Nigeria. Originally, the Court was an arm of the colonial judiciary. Although its formal appearance was in late colonialism, the genealogy of the Supreme Court of Nigeria goes back almost to the earliest years of British colonial rule. The Supreme Court Ordinance of 18761 of the fledging Colony of Lagos, in southern Nigeria, supplied an enduring framework to which the modern Nigerian judiciary is greatly indebted. The legacy is mixed: the colonial courts served not only the ends of justice but, it must be remembered, were also institutions for the consolidation and legitimatization of colonial rule.2

1 No. 4, 1876, Laws of the Colony of Southern Nigeria (1908) vol. I at 14-145. This Court superseded a chief magistrate's court established by the Supreme Court Ordinance No. 11 of 1863, two years, it would be recalled, after the British Crown claimed Lagos, purportedly by treaty, as a colony. See supra, chapter 1 at note 14. 2 See O. Adewoye, The Judicial System in Southern Nigeria 1854-1954: Law and Justice in a Dependency (London: Longman, 1977) at 31. This function of the judicial process is evident, for example, in the racist policy of subjecting "natives" to a summary justice regime of the judico-administrative provincial courts. Administrative officers manned these courts. Thus, there was, basically, a two-track court system; the Supreme Court, with professional judges, was confined to the major commercial centres, which of course were the places that Europeans were most likely to have dealings with Africans. On the other hand, the Provincial Courts, dispersed throughout the country, had jurisdiction over Africans. This system, first introduced in Northern Nigeria in 1900, was extended nationwide with the unification of colonial administration in 1914. The goals of the policy are set out and defended in the official report. See Report by Sir F.D. Lugard on the Amalgamation of Northern and Southern Nigeria, and Administration, 1912-1919 Cmd. 468 (1920) at para 44-54 and appendix III [hereinafter Amalgamation Report]. Although indeed the workload of even the colonial Supreme Courts was largely discharged by lay commissioners (see infra, note 19), limited local availability of trained legal personnel cannot by itself justify the extensive vesting of judicial power in the administration except as a practical expedient of "efficient" colonial administration. Thus, according to the Report, "the complete severance of the judicial and executive would be wholly impossible in a country such as this - and, if possible, would be inadvisable." Yet it conceded, there was "the great danger.. .that the political officers who preside over [the Provincial Courts] should regard them more as an arm of the executive...." See ibid, at appendix III. Consistent with the goals of the system, legal representation was not allowed in the Provincial Court, and also, in criminal cases, unlike civil cases, In section IV of chapter 1, we discussed the role of courts in colonial government.

The purpose of this chapter and the next, building partly on the analytical framework provided by Robert Seidman,3 is to critically describe institutional "inputs" in Supreme

Court decision-making. While this chapter narrates the evolution of the Supreme Court and analyzes the regime of judicial recruitment, the next chapter discusses various factors influencing demand for Supreme Court human rights decision-making. A familiar perspective of the caseload is that it is exogenously determined. Why this perspective may be quite informative, it ignores the ways in which a court's behaviour influences the decision to litigate (or in this case, appeal). In chapter 4, we shall link both perspectives.

The institutional character of the Supreme Court of Nigeria carries the historical imprint of the colonial judiciary. The evolution of the Court from a colonial institution is traced in section I of this chapter. This theme is followed through in section II, with an analysis of the Court's blueprint and of the development of its jurisdiction. The remainder of the chapter, section III, disaggregates the Court. It examines aspects of the recruitment and socialization of Supreme Court Justices, and considers how these impact decision­ making. For example, we argue that the high turnover of the Supreme Court bench, a result of the present preferment of senior Court of Appeal judges in recruitment, weakens the institutional evolution of the Court.

appeal was not allowed to the Supreme Court (except for the limited power to transfer cases). The principal "safeguard" against miscarriage of justice in the provincial court system was that certain sentences required the Governor's ratification before being carried out. Yet, it was reported, eighty of the eighty-eight persons executed in Nigeria in 1922, for example, were condemned in the Provincial Courts. See T.O. Elias, The Nigerian Legal System 2nd ed. (London: Routledge & Kegan Paul, 1963) at 130. 3 See R.B. Seidman, "Judicial Review and Fundamental Freedoms in Anglophonic Independent Africa" (1974) 35 Ohio St. L.J. 820 at 834-49 [hereinafter, "Judicial Review"], and The State, Law and Development (London: Croom Helm, 1978) at 364-74.

175 Although no systematic analysis of the personal attributes of Justices of the

Supreme Court, or how they may impact decision-making, is undertaken, a collective profile of Supreme Court Justices is analyzed in comparative perspective. This is unquestionably relevant to understanding decision-making. "That the judges should decide as they have," suggested Seidman, "has been almost inevitable since the systems of selection and recruitment of appellate judges in Africa in the post-independence [era] have ensured that judges would be appointed most likely to have conservative and authoritarian values and interests."4 In chapter 1, we observed that colonial recruitment into the higher judiciary in Nigeria was but for one exception exclusively from the Legal

Department of the colonial administration, a factor that partly explains the executive- minded orientation of the colonial judiciary. The collective profile would provide for information about the postcolonial court.

Colonial experience by itself cannot explain the persistence of judicial reticence far into the post-colonial period. The need for an alternative explanation becomes particularly compelling when the African situation is placed in a comparative context.

The Supreme Court of India, for example, is a direct successor of a conservative colonial court,5 and its recruitment/ socialization regime was partially bequeathed by the colonial

"Judicial Review," ibid, at 834. 5 "The Supreme Court of India ... was inaugurated at New Delhi on 26th January 1950, in the same building in which the [colonial] Federal Court had sat, with all the six judges of that Court as its judges along with all suits pending and proceedings pending therein. Also, all judgments and orders delivered or made by that Court were ordained to have the same force and effect as if they had been delivered or made by the Supreme Court. Thus, in effect, the 'Federal Court of the Dominion of India,' as of the 25th January 1950, became the 'Supreme Court of the Union of India' the very next day." See H.P. Dubey, "The Supreme Court of India: A Comparative Study of its Constitution, Organization, Powers and Functions with Historical Background" (1974) 10 Banaras L.J. 50 at 55. For the establishment of the Federal Court, see supra, chapter 1, note 110. It is also significant that conservative heritage of the Federal Court initially exercised the Supreme Court. A leading authority on the Supreme Court of India has indeed suggested that

176 court. Yet it has garnered sufficient institutional resources to sustain an extra-ordinary

involvement in public policy. This capacity, as we indicated earlier, is largely accounted

for by the institutionalization of the Indian Court. A definite weakness of Seidman's

institutional analysis of the African judiciary is his failure to consider institutionalization,

or lack thereof, as a factor in the persistence of "conservative and authoritarian values

and interest" in judicial temperament, or indeed, on the other hand, the impact of judicial

recruitment and socialization on the institutionalization of courts.

I. ROAD TO THE SUPREME COURT: DEVELOPMENT OF APPELLATE JUDICIARY IN NIGERIA

The present-day Supreme Court of Nigeria is the result of a rapid metamorphosis of two

principal colonial appellate judicial institutions, namely the old Supreme Court and the

West African Court of Appeal. Hence our account of the origins of Supreme Court must

begin with these earlier institutions. As we shall see below, it is not necessary for our

purpose to go back further than 1914, even though the history of the colonial Supreme

Court goes back an additional forty years. That earlier period predates the modern

Nigerian State.53

the Federal Court's "functioning may help explain why the early Supreme Court judges were so reticent about freely exercising judicial power." See R. Dhavan, The Supreme Court of India: A Socio-Legal Critique of its Juristic Techniques (Bombay: Tripathi, 1977) at 16. 5a For explanation, see chapter 1, note 18 and accompanying text.

177 A. Antecedents of the Modern Court (1): The Colonial Supreme Court The earliest court specifically styled "Supreme Court of Nigeria" was established in 1914 as part of the re-organization of the colonial administration in Nigeria following the

Amalgamation of Northern and Southern Nigeria.6 According to the terms of the

Supreme Court Ordinance,7 the Court shall "constitute the Supreme Court of judicature for the colony and Protectorate of Nigeria."8 It was a superior court of record possessing all the powers and authority, excepting the jurisdiction and powers of the High Court of

Admiralty, which are vested in or capable of being exercised by the High Court of Justice in England. Under the Ordinance, the common law, the doctrines of equity, and the statutes of general application that were in force in England on the 1st January 1900, shall be in force within the jurisdiction of the Court.10 In addition, there shall be observance and enforcement of any native law and custom not "repugnant to natural justice, equity

For an account of the Amalgamation and the situation prior to it, see chapter 1, notes 14-17 and accompanying text. In 1900, following Britain's formal assumption of jurisdiction over Nigeria, the colonial administration of Northern and Southern Nigeria each established a Supreme Court for their respective territory. See the Protectorate Courts Proclamation No. 4 of 1900 (Northern Nigeria) and the Supreme Court Proclamation No. 6 of 1900 (Southern Nigeria). The Supreme Court of Northern Nigeria was remarkable in that its jurisdiction was essentially appellate/ supervisory. For an outline of both courts, see T.O. Elias, supra note 2 at 95-6 and 113-16, F.U. Ume, The Courts and the Administration of Law in Nigeria (Enugu, Nigeria: Fourth Dimension Publishing, 1989) at 58-61. The earlier Supreme Court of the Colony of Lagos (supra note 1) continued to function independently, even after the merger of Lagos with Southern Nigeria in 1906. It was only in 1908 that a unified Supreme Court of Southern Nigeria was finally achieved. 7 No. 6 of 1914, Laws of Nigeria 1923 Cap. 3. 8 S. 3. 9 S. 12 10 S. 14. This provision, extending application of English law to Nigeria, replicated section 14 of No. 4 of 1876. The earliest statutory antecedent was in 1863. See Ordinance No. 3 of 1863, s. 1 ("All laws and statutes which were in force within the realm of England, on 1 January 1863, not being inconsistent with any Ordinance in force in this Colony [Lagos], or with any Rule made in pursuance of any such Ordinance, shall be deemed and taken to be in force in this Colony, and shall be applied in the administration of justice, so far as local circumstances will permit.")

178 and good conscience nor incompatible either directly or by necessary implication with any local enactment existing at the commencement of the Ordinance."11

Despite the name, the 1914 Supreme Court was anything but a pan Nigerian

1 o court, because its jurisdiction was limited to a few townships. Initially, only thirteen towns were covered. Jurisdiction was progressively extended to a total of fifty-eight towns.1 But in 1933, this expansion was reversed by judicial reforms, which, inter alia, practically confined the Supreme Court to Lagos, the main commercial centre and seat of government.15 Instead, a parallel court system, a High Court, was created for the rest of the Protectorate of Nigeria.16 However, in 1943 the High Court of the Protectorate was merged with the Supreme Court to create the Supreme Court of Justice for the Colony and Protectorate of Nigeria, with jurisdiction throughout the country. For the first time, wrote T.O. Elias, the "Supreme Court writ now runs through the length and breadth of

Nigeria in theory as well as fact."

The post-Amalgamation Supreme Court was a bifurcated organization of a trial court, styled "Divisional Court," comprising a single judge, and an appellate chamber, or

11 S. 20 12 See s. 22. 13 See Adewoye, supra note 2 at 138. 14 See B.O. Nwabueze, The Machinery of Justice in Nigeria (London: Butterworths, 1963) at 64 (The mechanism for the extension of jurisdiction was the Township Ordinance, 1917). 15 However, the Court had exclusive jurisdiction throughout the country in: (a) probate, divorce, and matrimonial matters; (b) proceedings arising from certain ordinances, including the Companies Ordinance, the British and Colonial Probate Ordinance, the Intestate Estates Ordinance, the Wrecks and Salvage Ordinance, and the Legal Practitioners Ordinance; and (c) proceedings under the Nigeria Protectorate Admiralty Jurisdiction Ordinance, 1928. See Nwabueze, ibid, at 66. 16 See Supreme Court (Amendment) Ordinance 1933. 17 See Supreme Court Ordinance No. 23 of 1943 (effective in 1945). 18 Elias, supra note 2 at 152.

179 "Full Court."19 According to the terms of Ordinance No. 6 of 1914, the Supreme Court

was to consist of a Chief Justice and such number of judges as the Governor shall appoint

in accordance with such instructions as he may receive from the Crown. In practice, the

Court comprised the Chief Justice and four Puisne Judges. As a result of the limited

local availability of qualified personnel, the Supreme Court Ordinance stipulated that the

Chief Justice and every judge of the Supreme Court of the neighbouring Gold Coast

colony (in today's Ghana) were automatically puisne judges of the Supreme Court of

Nigeria.21 The Chief Justice of Gold Coast was ranked next to the Chief Justice of

Nigeria, who was the president of the Court.22 Ordinance No. 23 of 194323 redesignated and ranked puisne judges of the Supreme Court as follows: Senior Puisne Judge, the

Second Puisne Judge, the Third and Fourth Puisne Judges, and Puisne judges.

As we have pointed out, the Full Court was an appeal court within the Supreme

Court.24 It was properly constituted by two judges, although in practice, three judges, almost always including the Chief Justice, usually heard appeals. Decision was by

Apart from these two organs there were also lay "commissioners," who were empowered to exercise the jurisdiction of the Court within local limits, and may also administer oaths and take solemn affirmations and declarations. The Governor was vested with power to appoint as commissioners fit and proper persons, although every Station Magistrate and District Officer - an administrative officer - was within the local limits of the Court, an ex officio commissioner. Under the reforms of 1933, the office of Station Magistrate was abolished and replaced with the Magistrates' Courts. 20 See Amalgamation Report, supra note 2 at para 33. 21 See Supreme Court Ordinance 1914, s. 4. 22 The same arrangement was earlier applied in the case of the old Supreme Court of the Lagos Colony. 23 See supra note 17 and accompanying text. 24 The Divisional Court had appellate jurisdiction over the Provincial Courts in civil matters and also heard cases transferred from the latter with the consent of the Chief Justice. See the Provincial Courts Ordinance No. 7 of 1914, s. 23 (cases involving over £50, and upon the application of a party or by a Resident (an administrative officer)). This jurisdiction however did not have any significant impact on the work of the Supreme Court. It is reported that in the first three years, leave to appeal against a provincial court decision was granted only in eleven cases. Eighteen applications for transfer to the Supreme Court were made, of which eight were refused. See Amalgamation Report, supra note 2 at para 53.

180 majority. The Ordinance stipulated that if there were only two judges sitting and they

disagreed, the appeal must stand dismissed.25 Apparently because of the limited number

of judges available, initially, it was not uncommon to have a judge who tried a case also

sitting on the Full Court to hear the appeal.26 This unsatisfactory development was removed by an amending ordinance of 1922, which disallowed the Chief Justice (or any other judge) from sitting as a member of the Full Court when hearing an appeal from the

Chief Justice's (or that other judge's) earlier decision in a Divisional Court. 27

Figure 3.1: Annual Workload of the Full Court, 1914-1933

12 PI 10 <(0u (0 n 8 O

6 ' ; ' \ i t 03

Year

* Source: Nigeria Law Report, vols. 2-10. No Full Court cases are reported for 1920. It is not certain how many decisions may have gone unreported, but the number is not likely to be significant. (The figure indicated above for 1931 includes two unreported decisions that were the subject of subsequent appeals to the Privy Council.)

In contrast, in the case of the Full Court of the old Supreme Court of Lagos whenever there were only two judges sitting on appeal, the Chief Justice or his deputy had a casting vote. 26 See, e.g., Tijani v. The Secretary, Southern Provinces (1918) 3 N.L.R. 34 (Speed C.J.). This was clearly also the practice earlier with the Full Court of the former Supreme Court of Southern Nigeria (supra, note 6). See, e.g., Attorney General v. John Holt (1911) 2 N.L.R. 25 (Osborne CJ, Griffith, and Winkfield JJ), a case originally tried by Osborne CJ. See (1910) 2 N.L.R. 1. 27 Elias, supra note 2 at 127 (citing Nigerian Legislative Council Debate of 26 February 1923 at 64).

181 The Full Court was swept away by the judicial reforms of 1933, and a separate court, the West African Court of Appeal was constituted to hear appeals from the

Supreme Court of Nigeria. During its twenty-year existence, the Full Court decided a total of only eighty-six cases, never exceeding 11 in any particular year (see Figure 3.1).

On the surface, the average annual caseload of 4.3 cases appears exceedingly light. But the judges, it must be remembered, were never full-time appeal judges but also tried cases in the Divisional Courts. In any event, the figures indicate a progressive enlargement of the Court's caseload. For instance, in the five-year period 1921-25, the

Court decided more than twice as many cases as it did in the previous ten years. The annual workload not only peaked in the last year but also in the last five years (1929-33), which account for 32 or almost 40 per cent of the total workload of the Court. Overall, the experience of this Court was a great success when compared with the record of the

Full Court of the Supreme Court of the Lagos Colony. In the latter case, as a result of a combination of limited legal business and a dire shortage of judicial personnel, no court of appeal session was held at all in Lagos for five years, between 1881 and 1886.

B. Antecedents of the Modern Court (2): West African Court of Appeal, 1933- 1955 The earliest attempt to create a common court of appeal for British colonies in West

Africa was in 1867, when an Order in Council constituted the judges for the time being of

Her Majesty's Supreme Court of the Settlement of Sierra Leone into a "West African

Court of Appeal," with appellate jurisdiction over the courts of The Gambia, the Gold

28 Adewoye, supra note 2 at 51-52. The Court was initially required to sit not less than four times annually for the purpose of hearing appeals in Lagos and elsewhere (see Supreme Court Ordinance 1876, s.

182 Coast, and Lagos. The plan collapsed shortly thereafter when in 1874 Lagos and the

Gold Coast were united, briefly, under one administration.30 When, two years later, the

Supreme Court of the Colony of Lagos was established, appeals lay directly from that

Court to the Privy Council.

The West African Court of Appeal (W.A.C.A.) was revived in 1928 by Order in

Council, which established a Court to consist of the judges of the Supreme Courts of the

four British colonies in the region (The Gambia, Ghana, Nigeria, and Sierra Leone). The

Court was properly constituted by any uneven number of judges, ordinarily not being less

than three. However, two judges with the consent of the parties could hear cases. In

practice, the Court was normally composed of the Chief Justices of the three countries.

Thus like the Full Court of the Supreme Court of Nigeria, the new court at this point did

not involve exclusively appellate judges. However, in 1948, a permanent President and a

Justice of Appeal were appointed for the Court. Henceforth, the Court would be

composed of these two and the Chief Justice of one of the countries to hear appeals from

that country.

Nigeria acceded to the Court in 1933,32 and it superseded the Full Court of the

Supreme Court, which, as we have just seen, was scrapped that year. Apart from jurisdiction in civil and criminal appeals from the Supreme Court, the Court could also

51). But this requirement was subsequently amended to reduce it to only once a year (Ordinance No. 4 of 1905). 29 See Elias, supra note 2 at 148; Ume, supra note 6 at 69. 30 Although a separate administration was initially established for Lagos in 1862, between 1874 and 1886, it was brought under the authority of the Governor of the Gold Coast, with a Lieutenant Governor or a Deputy Governor in charge locally. See A. Burns, History of Nigeria 8th ed. (London: George Allen & Unwin, 1972) at 138-39. 31 See Elias, supra note 2 at 149. 32 See the West Africa Court of Appeal Ordinance No. 47 of 1933.

183 reserve for the consideration of W.A.C.A. any question of law arising in any case before

it. Since the Protectorate High Courts, created under the 1933 reforms, were a parallel

system to the Supreme Court and in no way subordinate to it, there resulted the unusual

situation that appeals from these other courts also lay directly to the West African Court

of Appeal. This anomaly persisted until the merger of the Supreme Court and the High

Courts of the Protectorate in 1945. Barely more than a decade later, the modern Supreme

Court superseded the West African Court of Appeal, and the jurisdiction of the old

Supreme Court was taken over by the various High Courts of the Federation.

C. Transition to the Modern Supreme Court

The Federal Supreme Court, as the new Court was styled, was created in 1954 and was a

radical departure from the model of the old court in that it was essentially an appellate

court. The old Supreme Court, as we have seen, operated both trial and appellate organs.

Subject to what will be said below, the original jurisdiction of the old Court was

transferred to the High Courts of the various states of the federation. The old Supreme

Court ceased to exercise jurisdiction over a part of Nigeria as soon as a High Court was

established for that state.33 This was a constitutional milestone. The restructuring of the judiciary was an aspect of the implementation of a federal constitution adopted by the

Nigerian Constitutional Conference 1953-54.

As a transition measure, it was agreed that pending the establishment of a High Court for any state, (a) any judgment, decree, order, or sentence of the Supreme Court sitting in that state will be deemed to be a judgment, decree, order or sentence of the High Court of that state; and (b) the power of the Supreme Court for the enforcement of orders will be deemed to be the power of the High Court of the state. See Report by the Resumed Conference on the Nigerian Constitution Cmd. 9059 (1954) at 52 [hereinafter Report of Resumed Conference].

184 The Federal Supreme Court was not formally set up until 1956. In accordance with the agreement at the Conference,34 the West African Court of Appeal continued to exercise jurisdiction with respect to Nigeria between 1954 and that year.

II. ESTABLISHING THE SUPREME COURT A. Creating a Blueprint: 1953-1954 Constitutional Conference

The 1953 Nigerian Constitutional Conference was held in London between the 30th July and 22nd August. This Conference, which had twenty plenary sessions, was concerned primarily with identifying and remedying defects in the quasi-federal Constitution of

1951.35 Although this Constitution did not contain specific provisions on judicial power, it was clear that the extant arrangement of a court with nationwide original jurisdiction, like the old Supreme Court, would be one of the first casualties of any satisfactory devolution of powers.

34 Ibid, at 53. 35 Nigeria (Constitution) Order in Council No. 1172 of 1951. 36 The only documented objections to judicial reorganization were from the Nigerian Bar Association and Sir John Verity, (1946-54), both of whom sent memoranda to the resumed constitutional conference warning that the action was likely to result, among others, in the politicization of the judiciary. Sir John, backed by all the judges, strongly argued for the retention of a centralized judicial system, with the Supreme Court subject to the appellate jurisdiction of the West African Court of Appeal. See "Memorandum by the Chief Justice on the Position of the Judiciary and Administration of Justice under the Proposed Revised Constitution of Nigeria" CO 554/319, no. 11 (9 Sept. 1953) [unpublished]. This position was supported by Sir K. Roberts-Wray. However, the views of the Chief Justice were thought to be insensitive to the fears of leaders of opinion in Northern Nigeria concerning the political consequences of a centralized judiciary. "Looking ahead the Northern leaders see in a very short period of time a Supreme Court Bench staffed in its entirety by Southern Nigerian judges. It may well be that there would be amongst them well-known politicians at present practicing at the Bar. Before this bench will practice Southern Nigerian barristers, and in their hands will be the administration of law and justice throughout the territory, including matters in which Northern and Southern "rights" come into question. However much we ourselves may have confidence in the personal integrity, wisdom and skill in jurisprudence of the future occupants of the Supreme Court Bench, no Northerner would ever share our views. ... The Chief Justice refers in his memorandum to the views of the members of the Bar practicing in the North. There are no Northerners amongst them, and it will be very many years before the three Northerners now in training become qualified. The vast majority of the remainder are Southerners whose record possesses a strongly marked political flavour, and whose intervention in affairs of political significance has been invariably in favour of parties or groups opposed to the lawfully constituted authorities of the Region. It is trifling with reality to cite their opinions on proposals for Courts of Justice in

185 It is therefore not surprising that the Conference's Committee on the

Administration of Justice's blueprint of a new Supreme Court,37 although it did not

extensively articulate a vision, intended the court, as an organ of the Central government,

to be confined to exclusively exercising jurisdiction co-extensive with the constitutional

powers of the latter. In other words, the emerging judicial structure would resemble

something like the American separation of federal and state courts. As the sole federal

court, the new Supreme Court would exercise original jurisdiction not only in

intergovernmental suits, but also in all cases involving validity of a law of the Central

government and any suit brought against an officer of that government.

in The aspect of the report bearing on the Supreme Court is brief: (1) The Court of the highest jurisdiction in Nigeria shall be called the Supreme Court of Nigeria. It shall consist of a Chief Justice, and so many other Judges as the Central Legislature prescribes. (2) The Judges of the Supreme Court - (i) shall be appointed by the Governor-General on the instructions of Her Majesty the Queen. (ii) Shall hold office during the pleasure of the Crown. (iii) Shall hold qualifications similar to those laid down in Section 47(2) of the Federation of Rhodesia and Nyasaland (Constitution) Order in Council, 1953, viz,:- A person shall not be qualified to be a judge of the Supreme Court unless- (a) he is or has been a Judge of a Court having unlimited jurisdiction in civil and criminal matters, in some part of Her Majesty's dominions; or the North." Letter from B.E. Sharwood-Smith, Lt.-Gov., Northern Nigeria to L.H. Goble (27 November 19530 CO 554/319, no. 23, reproduced in M. Lynn, ed, Nigeria: Moving to Independence 1953-1960 (London: The Stationery Office, 2001) 72 at 73 37 See Report by the Conference on the Nigerian Constitution Cmd. 8934 (1953) at 17 (committee was chaired by Rt. Hon. Sir Sidney Abrahams) [hereinafter, "Report of 1953 Constitutional Conference"']. An attempt, as a result of the objection of the Chief Justice, to reopen the fundamental issue of decentralization of the judiciary at the resumed conference of 1954 was abandoned by the Colonial Office because of the danger of exacerbating the anxieties of Northern Nigeria on the issue, see Lynn, ibid, at 78. 38 Ibid., at 18-19 [emphasis added].

186 (b) he is or has been for not less than ten years been, qualified to practice as an advocate in a Court or Courts having such jurisdiction. (iv) Shall receive such remuneration as the Central Legislature may fix; but the remuneration shall not be diminished during their continuance in office. (3) (4) The Supreme Court shall have original jurisdiction - (i) in all inter-Regional [State] disputes; (ii) in all disputes between the Central Government and a Regional [State] Government; (iii) on questions of the validity of a Central law (iv) in all matters arising under any Treaty, affecting Consuls or other representatives of other countries, and in which a writ of Mandamus or prohibition or an injunction is sought against an Officer of the Central Government. (5) The Supreme Court shall have power to hear appeals from the High Courts of the Regions [states] The Committee was unable to agree on - (a) whether the procedure for appeals to the Supreme Court should be regulated by the Central or Regional legislation; (a) whether the conditions of appeal should be determined by Central or Regional legislation; (b) (10) It shall be provided that the Supreme Court and High Courts shall be superior Courts of Record. (11) In view of the changes now recommended, provision shall be made for appeals from the Supreme Court henceforth to lie direct to the Judicial Committee of the Privy Council, and not to the West African Court of Appeal.

At the Resumed Conference in Lagos the following year, final agreement on the jurisdiction of the Court was a slightly watered down version of the original recommendation. The proposed unqualified exclusive jurisdiction of the Court over

questions of the validity of a law of the Central Government was dropped. There was

instead substituted the following:

(l)The Federal Supreme Court will, to the exclusion of any other court, have original jurisdiction to determine any question as

187 to the interpretation of the Constitution which is referred to them under the subsequent provisions of this paragraph or which may be required by any law of the Federal legislature to be referred by a lower court to the Federal Supreme Court for decision. (2) If any question as to the interpretation of the Constitution arises in any proceedings in any of a Region [State] that High Court may, if they see fit and subject to sub-paragraph (4) refer that question to the Federal Supreme Court. (3) If any question as to the interpretation of the Constitution arises in any proceedings in any other court of a Region, the person presiding in that court will be required to apply to the High Court of that Region for an order referring the question to the Federal Supreme Court, and the High Court may, as they see fit and subject to sub-paragraph (4), either make the order or refuse it. (4) If any such question as is mentioned in sub-paragraph (2) or (3) is, in the opinion of the High Court before whom it arises or, as the case may be, to whom application is made, a substantial question of law as to the validity of a Federal law under the provisions of the Constitution, the High Court will be required to refer that question to the Federal Supreme Court^9

In addition, the Federal Legislature would be competent to make laws conferring original jurisdiction on the Supreme Court in admiralty or maritime matters,40 and in any matter

arising under any law made by the Federal Legislature, except that the court would not

have original jurisdiction in any criminal matter. 41

The Conference blueprint of the Federal Supreme Court was constitutionalized by

the Nigeria (Constitution) Order in Council, 1954.42 According to its terms, the Court

comprised a Chief Justice of the Federation, two Federal Judges and such number of

acting Federal Justices as may be appointed. The Court would exercise appellate

39 See Report of Resumed Conference, supra note 33 at 51. 40 This was implemented by Federal Supreme Court Act No. 12 of 1960 [hereinafter, "Supreme Court Act I960"]. 41 See Report of Resumed Conference, supra note 33 at 51.

188 jurisdiction over the High Courts in such causes as the Regional Legislature may determine from time to time. The original jurisdiction was largely what was recommended in the blueprint: (i) all inter-Regional disputes; (ii) all disputes between the

Regions and the Central Government; (iii) all matters arising out of treaties which affect foreign representatives in Nigeria; and (iv) all questions as to the validity of any legislation enacted by the Central Government.

The emergence of the Supreme Court as a truly appellate court begins with an adjusted court plan under the Independence Constitution (1960). According to its terms, the original jurisdiction, subject to future legislative enlargement, was limited essentially to inter-governmental disputes.44 Although it was still the sole judicial organ of the central government, greater emphasis was now placed on the appellate function of the

Court. The Nigeria Constitutional Conference of 1958 recommended a considerable enlargement of the appellate jurisdiction in the original blueprint. The primary motivation, and we shall have more to say on this in Chapter 4, was the desire to afford greater federal legal protection for ethnic and political minorities, who were experiencing oppression by the local governing elites.443 The Conference agreed that there should be a right of appeal from the High Courts to the Supreme Court in the following cases:

(1) Interpretation of the Constitution, including the interpretation of fundamental rights.

42 S.I. No. 114 of 1954, s. 13. 43 Ibid. s. 144. In addition, the Supreme Court Act 1960, supra note 40, s. 17, provided that the Supreme Court shall be a Colonial Court of Admiralty within the meaning of the Colonial Courts of Admiralty Act, 1890 (53 & 54 Vict. c. 27), and shall have and exercise Admiralty jurisdiction in accordance with the provisions of the said Act. 44 See Nigeria (Constitution) Order in Council, 1960, s. 107. 44a See our discussion of protection of ethnic minorities in chapter 2 § 1, supra.

189 (2) Questions regarding denial or enforcement of fundamental rights (as distinct from interpretation of those rights). (3) Questions of citizenship of Nigeria. (4) All capital cases. (5) Criminal cases tried originally in the High Court - a) on questions of law; b) on questions of fact, mixed law and fact or quantum of sentence, but only with the leave of the High Court or the Federal Supreme Court. (6) Criminal cases tried in any court inferior to the High Court in which an appeal has been brought to the High Court, but only a) with the leave of the High Court or of the Federal Supreme Court, or b) if a right of appeal to the Federal Supreme Court is conferred by law enacted by the appropriate legislature or having effect as if it had been so enacted. (7) Civil cases tried originally in the High Court. (8) Civil cases tried by any court inferior to the High Court in which an appeal has been brought to the High Court, but only a) with leave of the High Court or of the Federal Supreme Court, or b) if a right of appeal to the Federal Supreme Court is conferred by law enacted by the appropriate legislature or having effect as if it had been so enacted.45

The Supreme Court continued to be competent to entertain references, from the

High Court, of any question as to the interpretation of the Constitution involving a substantial question of law.46 Finally, there was an expansion of the Court. First, the minimum number of Federal Justices was increased marginally to three. More importantly, the Chief Justice of each territory of the Federation was now an ex officio member of the Court.47 This arrangement lasted for about 5 years. In section II of the next chapter, we shall assess its impact on the work of the Court.

45 See Report by the Resumed Nigeria Constitutional Conference Cmnd. 569 (1958) at para 71 [hereinafter Report of 2nd Resumed Conference]. These recommendations were implemented by the Nigeria (Constitution) Order in Council, 1960, s. 110 ("Independence Constitution"). 46 Ibid., s. 108. 47 Constitution, ibid., s. 104. This was discontinued in 1963.

190 B. Revisiting the Blueprint: The Court Plan of 1976

The Supreme Court became truly supreme only in 1963 when the appellate jurisdiction of the Privy Council was abolished.48 This was truly a momentous

development because it was the first time in almost a century that appeals did not lie to

the Privy Council from Nigerian courts. The result of removal of the British court from

the Nigerian judicial system, however, was that the system was deprived of an

intermediate appellate court for the first time in thirty years. That was formerly the role,

successively, of the defunct West African Court of Appeal and the Supreme Court.49 To

remedy this, the Constitution empowered the states to constitute appellate courts to hear

appeals in the first instance from their respective High Courts.50 Under this system, courts

of appeal, like the High Courts, were to be established separately for each state by its

legislature. This is comparable to the Canadian judicial system.51

It may be argued that this structure, although emerging almost ten years late, was

simply a natural consequence of the 1954 agreement to decentralize the judiciary. This is

more so given the strong position taken by the states at the Constitutional Conference that

See the Republican Const. (1963), s. 120 (no appeal shall lie to any other body or person from any determination of the Supreme Court). Before 1963 appeals lay from decisions of the Federal Supreme Court to Her Majesty in Council according to the terms of section 114 of Nigeria's Independence Constitution (1960). The proposal to abolish appeals to the Privy Council was part of the general constitutional revision that resulted in the Republican Constitution of 1963, but it is not unconnected with the adverse decision of the Council in the leading constitutional case Adegbenro v. Akintola & Aderemi [1963] 3 W.L.R. 63. For this background, see J.P. Mackintosh, Nigerian Government and Politics (London: George Allen & Unwin, 1966) at 41-44. 49 The impact was even more drastic for the original jurisdiction of Supreme Court, since intergovernmental disputes coming under that head would therefore no longer be appealable. The resulting exclusive jurisdiction of the Supreme Court in this matter remains the case today. 50 See Eastern Nigeria Const., 1963, s. 54; Mid-Western Nigeria Const., 1964, s. 52. Northern Nigeria Const., 1963, s. 56; Western Nigeria Const., 1963, ss. 52-53. 51 In 1970 Federal Court of Appeal was added to Canada's system of intermediate appeals courts.

191 appeals to the Supreme Court should be regulated by the legislatures of the states.

Nevertheless, like the original judicial devolution in 1954, there was strong opinion

against the new system within the legal profession. It was felt that a single national court

of appeal would better serve the machinery of justice.53 In the event, only the Western

State Court of Appeal was created.54

This was a highly unsatisfactory situation since most of the country was still

without an intermediate court of appeal. It soon became obvious that this situation could

not carry on much longer. The non-existence of an institution to perform the role of

filtering appeals from the High Courts had critically burdened the Supreme Court with

excessive workload. In 1974, the Public Service Review Commission,55 reporting on the

state of the judiciary, made the following observation,

[t]he Supreme Court is overloaded and seriously in arrears with its work. There are appeals from 1971 still undisposed of and it is at present rarely possible to obtain a hearing date less than twelve months or more ahead.... As a result of constitutional developments, the country has lost the two-tier appellate structure

See supra note 36, and Report of 1953 Constitutional Conference, supra note 37 at 19. The Nigeria (Constitution) Order S.I. No. 114 of 1954 stipulated that the Supreme Court's appellate jurisdiction over High Courts shall be in such causes as the State legislature may determine from time to time. The final settlement at the 1958 Resumed Constitutional Conference was however contrary to the preferred position of the States. 53 A number of objections were raised by the Nigerian Bar Association. In the first place, it believed that challenges of recruiting judges for the each of the courts of appeal would be considerable, particularly because of cost and limited availability of qualified personnel. Secondly, the system would inevitably generate conflict between the different courts of appeal since the decision of one will neither bind the others nor the High Court of the another state. See B.O. Nwabueze, Constitutional Law of the Nigerian Republic (London: Butterworths, 1964) at 286-87. But this fear has been described as "more imaginary than real." See A.B. Kasunmu, "The Supreme Court of Nigeria: An Examination of its Composition and Functions" in A.B. Kasunmu, ed., The Supreme Court of Nigeria, 1956-1970 (Ibadan: Heinemann, 1977) 1 at 34. 54 The Court was constituted by the Court of Appeal Edict, No. 15 of 1967 [Western State of Nigeria] and was dissolved in 1976 by the Constitution (Amendment) (No. 2) Decree 1976, as a result of the establishment of the Federal Court of Appeal (on which, see infra note 64). 55 Appointed by the Federal Government on 13 September 1972. See Official Gazette Extraordinary No. 4 of 16 September 1972 as amended by Legal Notice No. 11 of 1973.

192 that formerly existed in the form of the West African Court of Appeal and the judicial Committee of the Privy Council. In consequence, the Supreme Court now has to serve as both the first and final courts of appeal. It is an unsatisfactory position of having to take unrefined material direct from courts of first instance, which have themselves had to carry out the normal task of disentangling issues of fact and law. As a result the Supreme Court can rarely perform the true role of a final court of appeal, which is to deal with clear issues of law and to lay down principles of general application for the guidance of all lower courts.... In our view a second appellate court is needed.56

The Commission's proposal departed significantly from the existing blueprint of the Supreme Court by grounding the proposed reform on the principle that "there should be stringent limitations on the exercise of the second appeal so that the Court can confine itself to pronouncing on important issues of general concern." Thus, it recommended, firstly, that the Supreme Court should be completely divested of original jurisdiction. Its existing jurisdiction in inter-governmental disputes would be transferred to an intermediate court of appeal. Secondly, in order to keep the caseload of the Supreme

Court within manageable proportions, leave to appeal should be required in all cases.59

The court of appeal envisioned in the Commission's proposals was to be organized as separate divisions based in different centres around the country, each covering a specific circuit. However, "there should from time to time be interchanges in the manning of the divisions, both to gain the benefit of varied points of view and to

Report of the Public Service Review Commission (Lagos: Federal Government Printer, 1974) at para. 282-89 [hereinafter "Udoji Report"]. The Commission, chaired by a foremost Nigerian lawyer- administrator, Jerome Udoji, undertook a two-year review in the early 1970s of, inter alia, the organisation, structure and management of the Public Services, including the judiciary, and the methods of recruitment. Although little space is given to the Supreme Court, the report is the only official review of the structure and performance of the Court since it was established. 57 Ibid, at para 289. 58 Ibid, at para 295.

193 reduce the risk of divisions making conflicting pronouncements." The jurisdiction, powers and procedure of the proposed court should follow those of the existing Supreme

Court.61 The Commission recommended that the present Supreme Court should actually become this intermediate court of appeal, while a new Supreme Court of Nigeria, comprising a Chief Justice and six puisne justices, should be created.

It was barely two decades since the creation of the Federal Supreme Court. The

Commission articulated a very different blueprint from Sir Sidney Abraham's report of the early 1950s. The need for a new Supreme Court was anchored on a fundamental revision of objective - a rejection of the error-correcting final court of appeal model.

Although the recommendation attracted some support in the legal community, at least among academic lawyers,63 the government opted instead to retain the existing Supreme

Court while creating a national intermediate court of appeal along the lines proposed by the Commission. 4 It is perhaps more correct to say that rather than create a new Court, the jurisdiction of the Supreme Court was revised substantially according to the vision of the Commission's court plan. This involved stringent filtering of appeals to the Supreme

59 Ibid, at para 298. 60 Ibid, at para 292. 61 Ibid, at para 298. 62 Ibid, at para 291,297, and 331.1 63 A contemporaneous in-depth study of aspects of the functioning of the Court also concluded that "it might well be that what is needed is the creation of a final appeal court over and above the Supreme Court and that the present Supreme Court might perform the functions of an intermediate appellate court of appeal." See Kasunmu, supra note 53 at 51. It is a measure of the tone of this critique of the Court, especially in an environment hitherto unaccustomed to severe criticism of judges, that the Attorney General, Dr N.B. Graham-Douglas regretted that "the critical evaluation of some of the decisions is so incisive as to lead to the suspicion that the purpose of the exercise is essentially to find fault with the Court or with individual judges rather than an objective appraisal of particular rationes decidendi." See ibid, at viii. 64 See the Constitution (Amendment) (No. 2) Decree No.42 of 1976, and the Federal Court of Appeal Decree No. 43 of 1976. See now Cap Laws of the Federation 1990. In 1984, the Court was restyled simply 'Court of Appeal.'

194 Court. Under this new regime, appeal as of right to the Supreme Court from the Court of

Appeal was restricted to four categories. 5 In all other cases, leave of the Supreme Court was required66 (with two exceptions, where leave of the Court of Appeal would be

sufficient).67

These were without question far reaching measures, even though they still fell

short of the Commission's vision of a final court of appeal whose role is limited to pronouncing on important issues of general concern68 and enjoying unhindered freedom to select its caseload. The 1976 reforms were a milestone in the evolution of the Supreme

Court in particular and the development of appellate adjudication in Nigeria in general.

The creation of an exclusive national intermediate court of appeal completely reversed

See the Constitution of the Federation, 1963, s. 117(2), as amended by Decree No. 42, ibid., s. 1: An appeal shall lie from decisions of the Federal Court of Appeal to the Supreme Court as of right in the following cases - (a) decisions in any civil and criminal proceedings on questions as to the interpretation of this Constitution or the constitution of a State; (b) decisions in any civil and criminal proceedings on questions as to whether any of the provisions of Chapter III of this Constitution [protection of fundamental human rights] has been contravened in relation to any person; (c) decisions in any criminal proceedings in which the Federal Court of Appeal has affirmed a sentence of death imposed by some other court or tribunal; (d) decisions given in the. exercise of the original jurisdiction of the Federal Court of Appeal.. .under this Constitution; and (e) such other cases as may be prescribed by any enactment. 66 See Constitution as amended, ibid., s. 117(4). 67 See ibid., s. 117(3): An appeal shall lie from decisions of the Federal Court of Appeal to the Supreme Court with the leave of the Federal Court of Appeal or the Supreme Court in the following cases - (a) any decision of the Federal Court of Appeal in any civil proceedings before the High Court or the Federal Revenue Court [now Federal High Court] sitting at first instance; and (b) where the ground of appeal involves questions of law alone, any decision of the Federal Court of Appeal on an appeal from a decision in any criminal proceedings before the High Court or the Federal Revenue Court sitting at first instance. 68 It was however stipulated that no appeal shall lie to the Supreme Court from any decision of the Court of Appeal on an appeal to that court from a decision of the High Court [or the Federal High Court] sitting otherwise than at first instance unless the decision was in respect of a criminal proceeding and in respect of that decision the Attorney General of the Federation has given a certificate that the decision of the Court of Appeal involves a point of law of exceptional public importance and that it is desirable in the public interest that a further appeal to the Supreme Court should be brought. See Ibid., s. 117(5).

195 the pre-existing constitutional arrangement. At this point, both the intermediate and final courts of appeal are established by the central government. The reformed Supreme Court, unlike what was envisaged in the old blueprint, was no longer simply an error-correcting institution but was fashioned for the business of handling policy issues of great public importance.69

The philosophy behind the reform was sound, and the restructuring of the appellate system had corrected a primary asymmetry in objectives. It was therefore surprising when only three years later this landmark reform of the jurisdiction of the

Supreme Court was dumped. Under the Constitution of 1979, and the subsequent constitutions, original jurisdiction was restored to the Court and the categories of mandatory appeals were widened. With this, the agenda-shaping impact of the Court of

Appeal on the business of the Supreme Court was blunted. What is yet unclear is what motivated this turnabout. But the almost-predictable consequence, to be considered fully in the next chapter, has been the clogging of the Court's calendar with unnecessary business. We shall look more closely at this in chapter 4 §2C.

Although the new regime had not wholly followed the path recommended by the Udoji Report (supra note 56), the experience of the United States Supreme Court with the U.S. Courts of Appeals was a guiding spirit of the reform. The drafting of the statutes was preceded by an investigation of the U.S. system by Justice A. Fatayi-Williams (as he then was) of the Supreme Court. He recalled this in his memoirs. "In order to determine finally what form this intermediate court between the Supreme Court and the State High Court would take, [Chief Justice] Dr Elias succeeded in getting the Government of the United States of America, with the consent of our own Head of State, to arrange for me to go to the United States and observe at first hand the actual workings of the United States Supreme Court and how the work of the Circuit Courts of Appeals has affected the heavy workload of that court. I reported what I had seen and heard on my return. Based on my report, Dr Graham-Douglas (then the Attorney General of the Federation) in collaboration with Dr Elias, produced the first draft Decree establishing the Federal Court of Appeal." See Fatayi-Williams, Faces, Cases and Places (London: Butterworths, 1983) at 136.

196 III. EXPECTATION OF SENIORITY: RECRUITMENT AND TENURE

A. Collective Profile of Supreme Court Justices

Discussion of recruitment need not be limited to formal eligibility for appointment.

Rather, in the next few pages, we propose to develop a collective profile based on certain

personal attributes of the Justices appointed hitherto to the Supreme Court of Nigeria.

This exercise serves to identify and clarify the objectives of the recruitment regime and

its impact on decision-making. This study does not, however, specifically investigate the

significance, if any, of personal attributes in Supreme Court decision-making.70 But the

For an exploratory analysis of social backgrounds of Justices of the Supreme Court of Nigeria, see M.O.A. Alabi, The Supreme Court in the Nigerian Political System, 1963-1997 (Ibadan, Demyaxs Press, 2002) at 212-28. Cf. personal attributes of U.S. Supreme Court Justices. See L. Epstein et al., The Supreme Court Compendium: Data, Decisions & Developments 3rd ed. (Washington, D.C.: CQ Press, 2003) at 255- 334 (Tables 4.2-4.11). There has been considerable speculation on the significance of social background or personal attributes injudicial behaviour. Schmidhauser's groundbreaking study concluded that it was not at all clear that the social and political background factors in themselves are reliable indicators of judicial behaviour. See J.R. Schmidhauser, "The Justices of the Supreme Court: A Collective Portrait" (1959) 3 Midwest. J. Pol. Sci. 1 at 48. See L. Baum, "Recruitment and the Motivations of Supreme Court Justices" in C.W. Clayton & H. Gillman, Supreme Court Decision-Making: New Institutionalist Approaches (Chicago: University of Chicago Press, 1999) at 201; J.B. Grossman, "Social Background and Judicial Decision" (1966) 79 Harv. L. Rev. 1551. C. Neal Tate, among others, has undertaken interesting personal attribute model analysis of voting behaviour in the United States and Canadian Supreme Courts. See C. N. Tate, "Personal Attribute Models of Voting Behaviour of the U.S. Supreme Court Justices: Liberalism in Civil Liberties and Economic Decisions, 1946-1978" (1981) 75 Am. Pol. Sci. Rev. 355. At the same time, some empirical support has been provided for a claim that disposition to dissent depends on certain social background factors. See S.S. Ulmer, "Dissent Behavior and the Social Background of Supreme Court Justices" (1970) 32 J. Politics 580; J. Schmidhauser, "Stare Decisis, Dissent, and the Background of the Justices of the Supreme Court of the United States" (1962) 14 U.T.L.J. 194. But a daunting challenge is how to develop a personal attribute model that is not time-bound. As S. Sidney Ulmer has pointed out, "other things being equal, if the past experiences of judges explain their decisional behaviour, these explanations should hold in any and all segments of the time examined. The relationship between social backgrounds and the decisions of judges should not depend on the particular composition of courts, nor on any other variables for which time is a surrogate. If that is not the case, what has been offered as theoretical results may be merely descriptive of particular courts at particular points in time." See S. Ulmer, "Are Social Background Models Time Bound" (1986) 80 Am. J. Pol. Sci. 957 at 958. But see C.N. Tate & R. Handberg, "Time Binding and Theory Building in Personal Attribute Models of Supreme Court Voting Behavior, 1916-88" (1991) 35 Am. J. Pol. Sci. 460; C.N. Tate & P. Sittiwong, "Decision Making in the Canadian Supreme Court: Extending the Personal Attributes Model Across Nations" (1989) 51 J. Politics 900. Cf. D.R. Songer & S.W. Johnson, "Attitudinal Decision Making in the Supreme Court of Canada" (paper read at the Midwest Political Science Association conference 2002) [unpublished]. Available online: (date accessed: 30 March 2004).

197 present inquiry will enable us later in this section to evaluate in a cross-national perspective whether the extant recruitment regime necessarily accounts for the Supreme

Court's reticence in human rights decision-making. In chapter 5, we shall situate this factor in the context of the institutional resources for decision-making.

There were seventy-one Justices of the Supreme Court between 1956 and 2000. In addition to this, two High Court chief justices served on the Supreme Court wholly in an ex officio capacity. (Details of service on the Court from 1956-2000 are provided in Table

3.1.) Although social backgrounds vary considerably, there is very significant homogeneity in one particular personal attribute. Almost 90 per cent of the time, recruitment is from among senior serving judges, and pre-appointment/judicial careers in most cases are limited largely to government legal service and private practice. In more recent years, judicial experience, and indeed service in the Court of Appeal, has become a virtual prerequisite for appointment to the Supreme Court. In addition, during the period studied, Supreme Court Justices were always male,70a and, typically, had legal education in England,71 but are unlikely to have undertaken graduate training in law or other disciplines. Unlike in the 1960s, a person must be enrolled as a legal practitioner in

Nigeria to be eligible for appointment to the Supreme Court today.73 The Compulsory

a See below, notes 121-23 and accompanying text. 71 In contrast, George Gadbois's survey of judicial selection in India shows that at least half of the Supreme Court judges up till 1967 were educated entirely in India. See G.H. Gadbois, "Indian Supreme Court Judges: A Portrait" (1969) Law & Soc'y Rev. 317 at 325. 72 Graduate degrees/ diplomas are about as rare as a first degree other than LL.B. (Justice Obaseki had a B.Sc. agriculture). 73 Under the Independence Constitution (1960) a person who "is or has been a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or of a court having jurisdiction in appeals from any such court" may be appointed to the Supreme Court of Nigeria. Similarly, anyone to be appointed directly from the bar needed only to possess the required qualifications for admission to the Nigerian bar. At that time, admission to the English or Irish bar would have been

198 retirement age is seventy. a But since it is increasingly rare to be appointed to the Court

before sixty, the Justices' tenure is, typically, relatively short.

Only eight Justices, or roughly 11 per cent, had no prior judicial experience at the

time of appointment to the Court. All but one were senior law officers with the old Legal

Department or, as it is now known, the Ministry of Justice. There was in particular a

preferment of the Attorney General for appointment to the Court. This may not be

unconnected with the colonial ranking of the Attorney General higher than even a high

court judge.74 Although the great majority of Supreme Court Justices are appointed from

lower superior courts, most of them were also career law officers before their initial judicial appointment. Thus, the typical career path of a Supreme Court Justice begins

with service as a legal officer in the civil service of a State and progresses to a senior

position: Solicitor-General, chief registrar of the High Court, or, sometimes, Attorney

General. From this position, he is appointed as a judge of a High Court. Before the

sufficient (a ten-year post qualification experience was required). See Independence Const., s. 105(3). Eligibility for a seat on the Supreme Court today requires that the candidate must have been admitted to practice as a legal practitioner in Nigeria for at least fifteen years. See Const, s. 231(3). 73a See infra, note 145. 74 It was indeed not unusual in the Colonial Legal Service for the Attorney General to be considered for judgeship, often chief justice. In fact, three of Nigeria's five colonial Chief Justices had previously served as Attorney General: Edwin Speed (Chief Justice, 1914-18); Sir Ralph Combe (1919-29); Sir Donald Kingdom (1929-1946). The exceptions were the last two colonial chief justices, Sirs John Verity (1946-54) and S. Foster-Sutton (1956-58). It should be remembered moreover that the Attorney General, as is the Solicitor-General, was a career position during colonial rule. Change came with the Independence Constitution, which implemented the 1958 Constitutional Conference decision that it should become a non- career position. The Attorney General was, however, exempted from the requirement that every minister of the government of Nigeria must be a Senator or Member of the House of Representatives, apparently in order to allow technocrats to continue to be appointed to the office (s. 81(11) (a)). Even by the 1970s, the status of Attorney General was still such that the office holder was regarded as meriting a senior judicial position. As Kasunmu noted of the period, "the pattern which is now emerging is that the State Attorney Generals (sic) look forward to appointments as State Chief Justices or as appellate court judges, while the Federal Attorney General can only think in terms of accepting appointment to the Supreme Court either as a Supreme Court Justice or as Chief Justice." See Kasunmu, supra note 53 at 7. But as Table 3.1, infra, shows, only once in the history of the Supreme Court has a serving Attorney General been appointed directly Chief Justice (Elias).

199 establishment of the Court of Appeal, senior High Court judges were appointed to the

Supreme Court. Today, they would first aspire to a position on the Court of Appeal before hoping for a Supreme Court career.

Figure 3.2: Distribution of Supreme Court Recruitment before 1979*

extra-judicial court of appeal 18% 3%

High Court 79%

* n = 40. All but two appointments before 1979 are included (See Table 3.1 for details). (The two excluded are Foster-Sutton and Udoma. There is no information on prior judicial service by the former, a colonial judge appointed to head the Court at the inception. Apart from judicial service in a Nigerian High Court, before his appointment to the Supreme Court, Udoma served as chief justice of Uganda, a court of equivalent jurisdiction with a Nigerian High Court.)

To put it in perspective, the Nigerian system substantially mirrors the career pattern of the highest English appellate judges. In England, the usual route to the House of Lords begins with an appointment as a High Court judge after a successful career as a barrister. Thereafter, the candidate is promoted first to the Court of Appeal and finally the

House of Lords. A difference in the pre-judicial career between the two countries, with a preponderance of initial judicial recruitment in Nigeria being from lawyers in

200 government service rather than the bar, probably owes more than anything else to the legacy of colonial judicial administration. But this is perhaps a significant difference, given that, as we have already indicated, law officers were sometimes also recruited directly to the Supreme Court.

Figure 3.3: Distribution of Supreme Court Recruitment since 1979

High Court extra-judicial 3 V>A.

court of appeal* 81%

* "court of appeal" includes Western State Court of Appeal (1967-76) as well as the present national Court of Appeal (details are provided in Table 3.1).

In recent years, it has become very unlikely that an appointment would be made to the Supreme Court from outside the judiciary. There has been no such appointment in over twenty years, as the Table 3.1, below, shows. From the pattern of recruitment, it is evident that this policy was definitely well established after 1979, the year the last appointment was made. At that time only a total of forty-four justices had been appointed to the Supreme Court, of which eight held no judicial position prior to appointment. One candidate (Ibekwe) held a non-legal government position prior to appointment. The other

201 seven were senior law officers. Together, extra-judicial recruitment contributed 18 per cent, or roughly one-fifth, before 1980 (see Figure 3.2). This is significantly higher than the Court's overall average by 2000 of only 11 per cent. The prospects of a future appointment of this sort are slim.

The pattern of intra-judicial recruitment has also changed over time. While it has always been the norm in Supreme Court recruitment, and even more so since 1980, the establishment of the Court of Appeal has had a decisive impact on the regime. Before the

Court of Appeal was created only two Supreme Court justices held appellate judgeship positions prior to their appointment.75 Today, it is almost inconceivable for candidates for the Supreme Court not to serve first as judges of the Court of Appeal.

As Figure 3.3 shows, since 1979, when the first appointment to the Supreme

Court was made from the Court of Appeal, a solid 81 per cent of appointments have been drawn from that court. This trend waxed stronger over the years. During the last ten years of the period covered by this study, all but one of the fifteen appointees to the Supreme

Court, or 93 per cent, have been drawn from the Court of Appeal. This is not unique. The trend corresponds with the practice in Canada and the United States, for example. In

United States, a definite pattern that has crystallized is that judgeship on the U.S. Courts of Appeals is the usual penultimate position of Supreme Court justices.753 In Canada,

75 Both of whom served on the Western State Court of Appeal (Justices Fatayi-Williams and Eso), on which, see supra note 54. The third member of the Supreme Court to serve on that court, Justice Madarikan, broke his service in the Supreme Court from 1972-75 to be the President of the court. However, his reabsorption to the Supreme Court involved absolute loss of seniority. See Justice's Eso memoirs, K. Eso, The Mystery Gunman: History, Politics, Power-Play, Justice (Ibadan: Spectrum, 1996) at 124. 75a For record of prior judicial experience in the U.S. Supreme Court, see Epstein et al., supra note 70 at 324-31 (Table 4.9). For a vigorous critique of the emergent recruitment norm, see Epstein, Knight & Martin, infra note 124.

202 also, all lower court judges promoted to the Supreme Court of Canada since Bora

Laskin's elevation in 1970 have been drawn from the provincial courts of appeal or the

Federal Court (of Appeal).76 The transformation of Supreme Court recruitment in Nigeria would naturally be expected to have some institutional significance. Later in this section we shall explore the impact on decision-making of this emphasis on intra-judicial

76a recruitment.

The age of new Supreme Court justices has varied widely. Twice, in the 1960s, the Court welcomed justices before their forty-first birthday. On the other hand, in 1998, a sixty-six year-old Justice Achike joined the Court. In general, it is clear that candidates for the Court in more recent years have invariably been older than those appointed before

1980. Of the fifteen Justices who are known to have been 50 or under at the time of appointment, all but two were appointed before 1980. This age category constitutes 29.5 per cent of the forty-four appointments made between 1956 and 1979. (The figure would almost certainly be much higher but for the fact that no information on appointment age is available for eighteen or roughly a third of the forty-four.) The critical factor in the rise in the age of freshmen Justices is that Supreme Court recruitment is now practically confined to senior justices of the Court of Appeal, who are nowadays rarely under the age of sixty when promoted to the Supreme Court. We shall have more to say on this shortly.

During this period, except for two appointed from the Federal Court of Appeal (Justices Le Dain and Iacobucci), all the justices of the Supreme Court of Canada recruited from within the judiciary were drawn from the provincial courts of appeal. See further, infra note 134 and accompanying text. 76a See infra, notes 124-35 and accompanying text.

203 Table 3.1: Recruitment of Justices of the Supreme Court, 1956-2000

Age Tenure Pre-Appointment Position Nationality

A. Colonial Appointments Sir S. Foster-Sutton (chief justice) n/a 1956-58 Judge British 0. Jibowu n/a 1956-57 Judge (old Sup. Court) Nigerian N. de Lestang n/a 1956-581 Judge British M. J. Abbott n/a 1956-602 Puisne judge (High Court) n Sir J. Verity3 n/a 1956 Chief Justice of Nigeria (old Sup. If Court) II W. H. Irwin3 n/a 1956 Puisne judge (High Court) It P. C. Hubbard3 n/a 1956-57, 1960 Puisne judge (High Court) M Sir A. Ademola (chief justice) 52 1958-72 Chief justice (High Court) Nigerian L. Brett 47 1958-68 Solicitor-General (Federal) British L. N. Mbanefo4 47 1958-59 Puisne judge (High Court) Nigerian Sir J. H. Coussey3 n/a 1958 Puisne judge (High Court) British R. Y. Hedges3 n/a 1958 Puisne judge (High Court) M G. F. Dove-Edwin3 n/a 1958 Puisne judge (High Court) M W. H. Hurley3 n/a 19585 Puisne Judge (High Court) M S. 0. Quarshie-Idun3 n/a 1958-596 Puisne judge (High Court) Ghanaian Sir T. A. Brown7 n/a 1959-60 Ex Officio (Chief justice of High Court) British Sir A. J. Ainley7 n/a 1959-60 Ex Officio (Chief justice of High Court) M J. W. Bellamy n/a 1959,3 19617 Puisne judge (High Court) M W.A.H. Duffus3 n/a 1960 Puisne judge (High Court) M E. I. G. Unsworth n/a 1960-62 Attorney General (Federal) II J. I. C. Taylor 43 1960-64 Puisne judge (High Court) Nigerian

B. Post-Colonial Appointments Sir V. R. Bairamian 60 1960-68 Puisne judges (old Sup. Court) British

204 Table 3.1 (continued) Age Tenure Pre-Appointment Position Nationality

E. 0. A. Morgan n/a 1963-65 Puisne judge (High Court) Nigerian M. 0. Ajegbo 52 1964-67 Attorney General (State) Nigerian C.Idigbe 408 1964-66; 1975-83 Puisne judge (High Court) G.B.A. Coker 47 1964-75 Puisne judge (High Court) CD. Onyeama 47 1964-67 Puisne judge (High Court) I. M. Lewis 40 1966-72 Attorney General (North. Nigeria) British CO. Madarikan 458 1968-72; 1975-77 Puisne judge (High Court) Nigerian Sir U. Udoma 52 1969-82 Chief Justice of Uganda A. Fatayi-Williams 51 1969-83 Appeal Judge (Western State Court (chief justice, 1979-83) of Appeal) G.S. Sowemimo 51 19729-85 Chief justice (High Court) (chief justice, 1983-85) T. 0. Elias (chief justice) 57 1972-75 Attorney General (Federal) A. G. Irikefe 50 197210-87 Puisne judge (High Court) (chief justice, 1985-87) D. 0. Ibekwe 46 1973-75 Minister (State govt.) M. Bello 45 1975-95 Chief justice (High Court) (chief justice, 1987-95) Sir D. A. R. Alexander 55 1975-79 Chief justice (High Court) St. Lucian (chief justice) A. 0. Obaseki 49 1975"-91 Puisne judge (High Court) Nigerian M. Nasir 46 1975-76 Attorney General (North) K. Eso 52 1978-90 Chief judge (High Court) B. Ardo 48 1978-79 Chief judge (High Court) A. N. Aniagolu 55 1978-87 Chief judge (High Court) A. Nnamani 45 1979-90 Attorney General (Federal)

205 Table 3.1 (continued) Age Tenure Pre-Appointment Position Nationality

M. L. Uwais 43 1979-2006 Justice, Court of Appeal Nigerian (chief justice, 1995-2006) C. A. Oputa 60 1984-89 Chief judge (High Court) S. Kawu 56 1984-93 Chief judge (High Court) A. G. Karibi-Whyte 52 1984-2002 Justice, Court of Appeal B. 0. Kazeem 62 1984-87 Justice, Court of Appeal D. 0. Coker 61 1984-88 Justice, Court of Appeal S. A. Belgore 49 1986-2007 Justice, Court of Appeal (chief justice, June 2006 - Jan. 2007) A. Wali 55 1987-2002 Justice, Court of Appeal E. B. Craig 63 1987-89 Chief judge (High Court) P. Nnaemeka-Agu 59 1987-93 Justice, Court of Appeal A. G. 0. Agbaje 62 1987-90 Justice, Court of Appeal E. I. Akpata 63 1990-92 Justice, Court of Appeal 0. Olatawura 61 1990-94 Justice, Court of Appeal B. 0. Babalakin 64 1991-92 Justice, Court of Appeal P. Nwokedi 64 1991 (7 months) Chief judge (High Court) U. Omo 62 1991-93 Justice, Court of Appeal I. L. Kutigi 52 1992 - [serving] Justice, Court of Appeal (chief justice, 2007 - present) M. E. Ogundare 58 1992-2003 Justice, Court of Appeal E. 0. Ogwuegbu 59 1992-2003 Justice, Court of Appeal S. U. Mohammed 44 1992-93 Justice, Court of Appeal U. Mohammed 58 1993-2005 Justice, Court of Appeal S. U. Onu 55 1993 - [serving] Justice, Court of Appeal Y. 0. Adio 61 1993-97 Justice, Court of Appeal A. I. C. Iguh 59 1993-2004 Chief judge (High Court)

206 Table 3.1 (continued) Age Tenure Pre-Appointment Position Nationality

A. I. Katsina-Alu 57 1998 - [serving] Justice, Court of Appeal Nigerian 0. Achike 66 1998-2002 Justice, Court of Appeal U. A.Kalgo 60 1998 - 2007 Justice, Court of Appeal S. 0. Uwaifo 63 1998- 2005 Justice, Court of Appeal A. 0. Ejiwunmi 62 1998- 2006 Justice, Court of Appeal E. 0. Ayoola 65 1998 - 2003 Justice, Court of Appeal

Sources: G. Fawehinmi, (ed.) Bench and Bar in Nigeria (Lagos: Nigerian Law Publications, 1988); M.O.A. Alabi, The Supreme Court in the Nigerian Political System, 1963-1997 (Ibadan, Demyaxs Press, 2002) at 349-50. [Information updated to 2006]

Notes: n/a = not available

By virtue of his position as Chief Justice of the High 5. Hurley participated in Supreme Court decision-making in Court of Lagos, de Lestang was an ex officio member of 1961 in his capacity as acting Chief justice of the Lagos the Supreme Court from 1959-60. This was the result of a High Court. constitutional arrangement (operative until 1963) whereby 6. Quarshie-Idun was appointed chief justice of the High the chief justices of the High Courts of the states were Court of Western Region in 1959 and was, ex officio, a automatically part of the Supreme Court bench. See supra, part of the Supreme Court bench after 1959. note 46 and accompanying text. 7. Ex officio. He was in acting capacity in 1956. 8. Age on initial appointment. Acting justices. 9. Appointed acting justice in 1970. Substantive position on the Court was in 1958 only. 10. Substantive position from 19 Sept. 1973. Thereafter, he was an ex officio member by virtue of his 11. Substantive position from 1 January 1977. office as Chief Justice (East).

207 Until 1969, the chief judgeship of a High Court was a highly prestigious position, which actually ranked higher than Supreme Court Justices other than the Chief Justice of

Nigeria.77 In the circumstances, it was almost unthinkable that the chief judges would

7R accept a puisne justiceship position on the Supreme Court Rather, the reverse was actually the case. Supreme Court justices regarded a High Court chief judgeship as a promotion.79 However, this apparently awkward situation was corrected, in favour of the

Supreme Court, after 1969.

Under the emergent recruitment regime it is highly exceptional for a chief judge of a

High Court to be considered for direct elevation to the Supreme Court. Although a number of such appointments were made for fourteen years after the creation of the Court of Appeal, the chances have diminished considerably. During the period since 1979 they accounted for 16.6 per cent of appointees to the Supreme Court. But more recently, during the last ten years of the period covered by this study (1991-2000), the figure had become marginal - only two of seventeen appointees. Conversely, as Table 3.2 indicates, their number is stronger in recruitment to the Court of Appeal (five in 1998 alone). This

See Kasunmu, supra note 53 at 7 78 Interestingly, in Canada also, provincial Chief Justices very rarely take up appointment as puisne justice of the Supreme Court. There were only three occasions in the 20th Century: two Chief Justices of Ontario (Armour, 1902; Estey, 1977) and one of Manitoba (Killian, 1903). In India, formerly, it was highly unusual for the Chief Justice of the High Courts of Bombay, Calcutta, and Madras, the oldest and most prestigious High Courts in India, to accept puisne justiceship on the Supreme Court. See .K. Choudhuri, "The Judges of the Supreme Court and the Philosophy of a Judge" in R.A. Sharma, Justice and Social Order in India (New Delhi: Intellectual Publishing House, 1984) 95 at 100. The reason suggested by Gadbois was that perhaps they "find more satisfaction and prestige associated with their High Court leadership positions, and are thus reluctant to be 'promoted' to the position of most junior Supreme Court judge." See Gadbois, supra note 71 at 328. In recent years, however, a different trend appears to have emerged. Of the twenty-one appointments to the Indian Supreme Court between the end of 1998 and April 2002, five were Chief Justices of these three High Courts. 79 Between 1958 and 1978 Justices Jibowu, de Lestang, Mbanefo, Quashie-Idun, Taylor, Idigbe, and Ardo left the Court to take up headship of High Courts.

208 trend confirms our observation that service in the Court of Appeal is now practically a prerequisite for Supreme Court recruitment.

This bears a number of implications. The most obvious is the aging of the

Supreme Court bench. Freshmen Justices of the 1980s and 1990s have on the whole been older than those of the 1960s and 1970s. Indeed, in the last decade covered by this study, the mean age of a new appointee is more than ten years older than that of the 1970s. The last appointments to the Court during the period covered by this study were in 1998. The average age of the six Justices appointed that year is roughly 62.2 years. Two of them,

Achike and Ayoola were 66 and 65 respectively, the oldest persons appointed to the

Court hitherto. It is unlikely that any serious candidate for the Supreme Court today would be under sixty. At any rate, that is unavoidable so long as Supreme Court Justices are selected from the Court of Appeal. As Table 3.2 shows, the mean age of the twenty most senior justices of the Court of Appeal is 61.65 years. Another factor at play is that

Supreme Court and Court of Appeal Justices remain longer in service today. The compulsory retirement age was in the mid-1990s raised to seventy years. Thus, a quarter of the sixteen judges promoted to the Supreme Court from the Court of Appeal between

2000 and 2008 were 67 years or older (Edozie and Pats-Acholonu, 67; Aderemi and

Ogebe, 68), two or three years beyond the previous compulsory retirement age.

Therefore, candidates for the Supreme Court today have much longer judicial experience.

Four of the 1998 appointees, for example, had an average judicial experience of twenty- two years on appointment.80 Appointment to the Supreme Court has, in effect, become a

80 The range is from twenty-four years (Justice Kalgo) and nineteen years (Justice Ejiwunmi).

209 prize for longevity of judicial career. Whether such prolonged immersion injudicial work

is necessarily desirable for Supreme Court human rights decision-making is a different matter.

In contrast, only a third of appointees to the Supreme Court of Canada since 1970

Q 1 had up to ten years judicial experience on appointment. None has had up to twenty years. This partly explains why they get appointed at a younger age, usually in their fifties, and even, in a few cases, forties.82 Also, justices of the Supreme Court of India are typically in the mid or late fifties on appointment.83 They would usually have logged on average ten to fifteen years on the high court bench,84 where candidates for the Supreme

Court are almost invariably selected (there is no intermediate court of appeal).

81 A third had only five or fewer years of prior judicial experience. 82 There are three cases of appointees under the age of fifty in the period under review (Beetz, Lamer, and McLachlin). In the history of the Court, Chief Justice Lyman Duff, at 42, is the youngest person ever appointed to the Court (1906). 83 Rajeev Dhavan has put the average age of appointment to the Court at 57, see Dhavan, supra note 5 at 25. In his survey of the first thirty-six appointments to the Indian Supreme Court, Gadbois observed that at just under fifty-three years, Justice M. Hidayatullah (served 1958-70) was the youngest person ever appointed to the Court. See Gadbois, supra note 71 at 328. Since then, an even younger justice has been appointed. Justice P.N. Bhagwati was appointed to the Court in 1973 at under 52 years. That remains a remarkably young age for the Court. In comparison, 58.6 years was the mean appointment age of the Bharucha Court (based on the membership on 5 May 2002, the day before the retirement of Chief Justice Bharucha, the immediate past Chief Justice of the India). Of the twenty-six members of the Court, the youngest age of appointment was 55 (Chief Justice Bharucha and Justice Balakrishnan) while the oldest was sixty-one. A total of six members of the Court were appointed at the upper age. Thus, although Indian Supreme Court justices are appointed at about the age as their counterparts in Nigeria, they have on the average shorter tenure because of the lower age of compulsory retirement (sixty-five years). 84 In the Bharucha Court, ibid., only six justices had up to fifteen years judicial experience at the time of appointment. The average length of service in the High Court prior to promotion to the Supreme Court was roughly 12.8 years.

210 Table 3.2: Recruitment Pool: Age/ Career Profile of Court of Appeal Justices (ranked by seniority [2000])

Year Appointed Age Pre-Appointment Position

U. Abdullahi (President) 1983 61 Puisne judge (High Court) D. Musdapher3 1983 [2002] 58 Chief judge (High Court) A. M. Mukhtara 1987 [2005] 56 Puisne judge (High Court) G. A. Oguntade3 1987 [2004] 60 Puisne judge (High Court) J. T. Akpabio 1988 68 Puisne judge (High Court) I. A. Salami 1988 57 Puisne judge (High Court) D. 0. Edozie3 1990 [2002] 65 Puisne judge (High Court) N. Tobia 1990 [2002] 60 Puisne judge (High Court) M. A. Okunola 1990 56 Puisne judge (High Court) S. A. Akintan3 1991 [2004] 62 Puisne judge (High Court) J. 0. Ogebe3 1991 [2008] 60 Puisne judge (High Court) E. C. Ubaezonu 1991 68 Puisne judge (High Court) R. D. Muhammad 1991 57 Puisne judge (High Court) M. Mohammed3 1992 [2005] 54 Chief judge (High Court) S. A. Nsofor 1992 65 Puisne judge (High Court) R. O. Rowland 1992 62 Puisne judge (High Court) A. 0.Ige 1993 68 Puisne judge (High Court) M. 0. Onalaja 1993 67 Puisne judge (High Court) I. C. Pats-Acholonua 1993 [2003] 64 Puisne judge (High Court) 0. Opene 1993 65 Puisne judge (High Court) M. S. M. Coomassie3 1993 [2008] 54 Puisne judge (High Court) D. Adamu 1993 49 Puisne judge (High Court) I. T. Muhammad3 1993 [2007] 47 Kadih B. A. Ba-aba 1998 55 Chief judge (High Court) S. A. Ibiyeye 1998 61 Chief judge (High Court) Z. A. Bulkachuwa 1998 50 Chief judge (High Court) S. Galadima 1998 54 Chief judge (High Court) S. 0. Ekpe 1998 66 Chief judge (High Court) S. A. Olagunju 1998 67 Puisne judge (High Court) V. A. 0. Omage 1998 61 Puisne judge (High Court) 0. 0. Obadina 1998 63 Puisne judge (High Court) M. E. Akpiroroh 1998 66 Puisne judge (High Court) J. A. Fabiyi3 1998 [2009] 55 Puisne judge (High Court) F. F. Tabai3 1998 [2006] 58 Puisne judge (High Court) P. 0. Aderemi3 1998 [2007] 61 Puisne judge (High Court) K. B. Akaahs 1998 51 Puisne judge (High Court)

211 Table 3.2 (continued) Year Appointed Age Pre-Appointment Position

0. 0. Adekeyea 1998 [2009] 58 Puisne judge (High Court) A. J. Ikongbeli 1998 54 Puisne judge (High Court) A. G. Oduyemi 1998 65 Puisne judge (High Court) P. I. Amaizu 1998 65 Puisne judge (High Court) J. J. Umoren 1998 65 Puisne judge (High Court) W. S. N. Onnoghena 1998 [2005] 50 Puisne judge (High Court) M. D. Muhammad 1998 47 Puisne judge (High Court) C. M. Chukwuma-Eneha 1998 [2007] 56 Puisne judge (High Court) I. A. Mangaji 1998 47 Puisne judge (High Court) A. Sanusi 1998 50 Puisne judge (High Court) I. C. Nzeako 1998 64 Puisne judge (High Court) a. Promoted to the Supreme Court after 2000 (year of promotion in brackets). b. Islamic law judge. The Constitution (s. 237(2)(b)) specifically stipulates that a number of judges "learned in Islamic personal law" shall be appointed to this Court. This makes sense because appeals from the various Sharia courts of appeal lie to this Court. (However, professional Islamic law judges who are not otherwise qualified to practice as legal practitioners in Nigeria are not eligible for appointment to the Supreme Court.)

B. Recruitment and the Quest for Judicial Autonomy

As a result of a perceived need to de-politicize judicial selection, Nigeria was one of the earliest African countries to entrust the process to an independent Judicial Service

Commission,85 which, essentially, was a committee of the judiciary.86 "[T]here can be no doubt," it was stated in the 1960s,

See Independence Const., s. 120. The device was first used in Ceylon (1947), but only for the purpose of selection of inferior judicial officers. See K. Robert-Wray, Commonwealth and Colonial Law (New York: Praeger, 1966) at 482. In Africa, it was first introduced in Ghana in 1957, but, like the Bill of Rights, it was the Nigerian commission, established in 1960, that became the model for Tangayinka (1961); Sierra Leone (1961); Uganda (1962); Kenya (1963); Malawi (1964); Zambia (1964); Botswana (1966); Lesotho (1966); and Swaziland (1968). For a discussion of Ghana's commission, see A. N. E. Amissah, The Contribution of Courts to Government: A West African View (Oxford: Clarendon Press, 1981) at c. 4. 86 It was headed by the Federal Chief Justice. The only non-judicial member was the Chairman of the Federal Public Service Commission.

212 that a body composed predominantly of judges is better qualified to decide the eligibility of candidates for judgeship. Their years at the Bar and on the Bench provide them with an intimate knowledge of prospective aspirants to the Bench. . . . But the real necessity for an independent appointing body, like the Judicial Service Commission, is to be found in the nature of the Nigerian society which, as we have seen, is conspicuous for its ethnic, tribal and religious diversity, a circumstance which has produced profound distrust and jealousy between the various groups.

In its original conception under the Independence Constitution, Justices of the

Supreme Court other than the Chief Justice were to be appointed only on the advice of the Commission. The Chief Justice was appointed by the Governor General on the advice of the Prime Minister.88 The system was abandoned in 1963 because politicians wanted greater control of judicial recruitment.89 When it was revived under the Constitution of

1979, the original process was adjusted to combine it with an additional requirement of approval of nominees for the Supreme Court by the Senate of the National Assembly. °

The establishment by the 1999 Constitution of a National Judicial Council91 to oversee

Nwabueze, supra note 53 at 290 88 See Independence Const, s. 105(1). This was the usual practice throughout the Commonwealth. It was only in Swaziland that the appointment of the Chief Justice was subject to the machinery of the judicial service commission. 89 Under the Republican Constitution (1963), the appointment of Supreme Court Justices, as was already the case with the position of Chief Justice, was now the prerogative of the Executive. The military dictatorship that followed created an Advisory Judicial Committee. Under that system, the Supreme Military Council appointed the Chief Justice and Justices of the Supreme Court after consultation with the Committee. 90 Const, of 1979, s. 211. 91 See 1999 Const., para 20 of the Third Schedule (Pt. I). The Council has twenty members, including the Chief Justice, who is chairperson. Only seven, including five legal practitioners, are from outside the judiciary. A proposal to establish a National Judicial Council first appeared in the recommendations of the 1995 Constitutional Conference and in the 1995 Draft Constitution. See Federal Republic of Nigeria, Report of the Constitutional Conference Vol. II (1995) at 90, 94-96. But the evolution of aspects of the present regime may go back as early as 1987, when a government-appointed Political Bureau recommended that the role of the Judicial Service Commission in the appointment of Supreme Court justices should be upgraded form merely advising on appointments to actually recommending candidates for appointment. See Federal Republic of Nigeria, Report of the Political Bureau (March, 1987) para. 7.061. However, the proposed change was not reflected in the Constitution of 1989.

213 the judiciary resulted in a further modification of the recruitment process. One of the functions of the Council is to recommend, on the advice of the Judicial Service

Commission, candidates for the Supreme Court, including the Chief Justiceship. The role of the President has become significantly weaker. Although he continues to be vested with the formal appointing power, he is apparently bound by the Council's recommendation, subject of course to confirmation by the Senate of the National

Assembly.92

A noticeable improvement in the new system is the inclusion of two and five representatives of the bar, respectively, in the Judicial Service Commission and, for the business of judicial selection, the Judicial Council.94 This in itself is a significant reform.

The inclusion of the bar in the process of judicial recruitment had hitherto been very strongly opposed by the judiciary.95 Despite these changes, the process remains far from open. Vacancies are neither advertised nor are applications solicited. Candidates being considered are never disclosed, and no records are ever published. Thus, the criteria of selection and the performance of candidates are unknown. All that is clearly apparent in

See Const., s. 231(1) & (2). Although the confirmation requirement was first introduced by the Constitution of 1979, it was used only once, in 1983, when a sitting justice was promoted Chief Justice. It is under the present Constitution that the procedure was first used for a new appointment to the Supreme Court (Justice Tobi). The reason is that the process was suspended during the prolonged military dictatorship from 1984 to 1999. During this period, appointments to the Court were made by the ruling junta's Supreme Military Council/ Armed Forces Ruling Council. 93 See 1999 Const., para 12 of the Third Schedule (Pt. I). 94 The five representatives of the bar sit in Council only for the purposes of considering the names of persons for appointment to the superior courts of record. 95 When, in 1972, the Nigerian Bar Association demanded the inclusion in the Judicial Service Commission of its president and two other members to be nominated by the Association's national executive, Chief Justice Ademola called it "a mere joke." See Kasunmu, supra note 53 at 11. 96 Kasunmu, for example, concluded that "the mystery surrounding the activities and functioning of the Commission" makes it impossible to assess the usefulness of the institution. See ibid, at 10. 97 Reg. 68(5) of the Federal Judicial Service Commission Regulations, Cap 62 Laws of the Federation 1990 stipulates that in assessing potential candidates for judicial appointment, "the Commission

214 the existing practice of intra-judicial recruitment is that seniority is an over-arching factor.

Although there is visible equitable representation of the geo-political regions of

go the country in the Court, as required by the Constitution, the States have no formal

shall have regard, among other things, to the candidate's experience, knowledge of the law, mental capacity and temperament, comportment and behaviour, integrity, sense of responsibility, the type of association kept and the respect which he commands in the community." In South Africa, the Chief Justice presides over the Judicial Service Commission. The President of the Supreme Court of Appeal is a member. The President of South Africa appoints the chief justice and deputy chief justice as well as the other judges of the Constitutional Court after consulting the Judicial Service Commission and, for the chief and deputy chief justice, the leaders of the parties represented in the National Assembly. But in the appointment of judges of the Court other than the chief and deputy chief, he is required to act on a list of nominees drawn up by the Commission. See South African Const., s. 174(3) & (4). Under the Interim Constitution (s. 99(3)), the President was empowered, after consultation with the Cabinet and with the Chief Justice only, to appoint four judges of the Constitutional Court from among the judges of the Supreme Court. 98 See Nigeria Const., s. 14(3): The composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few States or from a few ethnic or other sectional groups in that Government or in any of its agencies. For an analysis of regional representation and merit in Supreme Court recruitment from 1956 to 1970, see Kasunmu, supra note 53 at 2-6. Recruitment to the Supreme Court of Canada is similarly sensitive to a "balanced" representation of the provinces. Only Quebec, however, has a specific statutory entitlement, which requires that at least three judges of the Supreme Court shall be appointed from among the judges of the Court of Appeal or of the Superior Court or from among the advocates of the Province. See Supreme Court Act, R.S.C. 1985, c. S-26, s. 6. In practice, Ontario is also entitled to three judges while the Maritime Provinces and the Prairie provinces/ British Columbia have one and two respectively. The rotation of chief justiceship between Quebec and English Canada is a practice of modern origin beginning with Rinfret's chief justiceship in 1944. See P. McCormick, Supreme at Last: the Evolution of the Supreme Court of Canada (Toronto: James Lorimer & Co., 2000) at 12-13. But see P. Weiler, In the Last Resort: A Critical Study of the Supreme Court of Canada (Toronto: Carswell, 1974) at 17-18: If the key attribute in selection of a judge should be legal skill and experience - as it appears from the face of the Supreme Court Act - then these regional and ethnic constraints would seem undesirable. It is not likely that the best legal talent is distributed in as systematic a geographic way as is implied by these patterns of selection. However, if a dominant feature of the work of the Court is its policy-making role in our system of government, the same conclusion is not so apparent. Just as for cabinet, there is real virtue in giving different regions and groups significant representation on a body which will have an important impact on our lives. From this perspective, the problem is that these extra-legal factors are too narrowly defined, rather than too widely. If we want a group of individuals who have some experience of the needs and aspirations of a wide range of the Canadian populace, we will not find it on the Supreme

215 input in the appointment process. This creates a danger of a "credibility problem" of the

Court been seen merely as an organ of the central government, a situation which may

easily undermine its legitimacy, given Nigeria's occasionally volatile inter-governmental relations. As the experience of Canada shows, the provincial perception of the Supreme

Court as a tool for centralization of policy making is a serious threat to the legitimacy of the Court.100 A convenient and indeed natural solution is to share responsibility for recruitment of the justices between the central government and the states.

Various devices of State representation on the Supreme Court of Nigeria were tried in Nigeria from the late 1950s to the 1960s. Initially, under the Independence

Constitution, the chief justices of the High Courts were ex officio justices of the Supreme

Court.1003 But the system was unsatisfactory. The chief justices could hardly be expected to combine their primary roles with the added responsibility of full-time membership of the Supreme Court. In any event, they participated minimally in the work of the Court.

From the point of view of the Supreme Court, ex officio personnel of this type could not

Court. Instead, this body is a prime example of the "vertical mosaic" of Canadian society. For a discussion of regional representation in the Supreme Court of India, see Gadbois, supra note 71 at 328-331. 99 See P. Russell, "The Supreme Court and Federal-Provincial Relations: The Political Use of Legal Resources" (1985) 11 Can. Pub. Pol'y 161 at 164. 100 See, e.g., F.L. Morton & R. Knopff, The Charter Revolution and the Court Party (Peterborough, ON: Broadview Press, 2000) at 59-63; F.L. Morton, P.H. Russell & T. Riddell, "The Canadian Charter of Rights and Freedoms: A Descriptive Analysis of the First Decade, 1982-1992" (1994) 5 Nat. J. Const. L. 1 at 17-29; F.L. Morton, et al., "Judicial Nullification of Statutes under the Charter of Rights and Freedoms, 1982-1988" (1990) 28 Alta. L. Rev. 396. But the evidence of a trend towards centralization of policy in Supreme Court decision-making, before or after the introduction of the Charter of Rights and Freedoms, is strongly contested. See P.W. Hogg, "Is the Supreme Court of Canada Biased in Constitutional Cases" (1979) LVII Can. Bar Rev. 721; S.I Smithey, "The Effects of the Canadian Supreme Court's Charter Interpretation on Regional and Intergovernmental Tensions in Canada" (1996) 26 Publius 83; J.B. Kelly, "Reconciling Rights and Federalism during Review of the Charter of Rights and Freedoms: The Supreme Court of Canada and the Centralization Thesis, 1982 to 1991" (2001) Can. J. Pol. Sci. 321. 100a See supra note 47.

216 be optimally deployed with the objective of effective management of the caseload. The

Republican Constitution of 1963 introduced a modified system, whereby "four of the

Justices of the Supreme Court shall be appointed by the President acting on the advice, as

respects each of those justices severally of the Premier of a different Region."1 ! Given

its size at that time, this provision effectively ensured that the States controlled a majority

of the Court. Subsequent Nigerian constitutions have not included similar provisions.

Seniority in the Supreme Court has also become established as an entitlement to the Chief Justiceship. The extant practice of the preferment of the senior Justice in

S. 112(3). A constitutional amendment to give the provinces greater control of Supreme Court recruitment in Canada was proposed under the failed Meech Lake (1987) and Charlottetown Accords (1992) respectively. Under the former (s. 6), the following constitutional amendment was proposed: (1) Where a vacancy occurs in the Supreme Court of Canada, the government of each province may, in relation to that vacancy, submit to the Minister of Justice of Canada the names of any of the persons who have been admitted to the bar of that province and are qualified ... for appointment to that court. (2) Where an appointment is made to the Supreme Court of Canada, the Governor General in Council shall, except where the Chief Justice is appointed from among members of the Court, appoint a person whose name has been submitted under subsection (1) and who is acceptable to the Queen's Privy Council for Canada. "I have qualms," wrote Paul Weiler in the 1970s, "about. . . giving the provinces a say. This suggestion is fed primarily by concern about the Court's constitutional function. Since both levels of government are parties in interest, the federal government should not have unilateral selection of the umpire. My response is that the Supreme Court's federalism role is receding in importance and should be allowed peacefully to wither away." We should not try to reconstruct the Court so as to enhance its performance of that particular function. There is a real danger that we would distort the capacity of the Supreme Court of Canada to perform its other critical functions - the craftmanlike revision of less visible parts of our law and the independent protection of our civil liberties. These we need the Court for, but adjustments of the federal systems are better undertaken elsewhere. The danger with institutionalizing a provincial voice is that it will deter certain kinds of appointments. The more people who have a say, the lower the common denominator which can satisfy all. The controversial figure, the person who has had experience with issues and taken stands, will be shunned. The safe candidate will be the one with the right credentials but whom no one really knows much about, because he has not been involved. Staffing our final court of appeal with that kind of appointee is the last thing we want! See Weiler, supra note 98 at 233.

217 appointment of a Chief Justice is a fairly recent development. Until lately, the

appointment of the Chief Justice was more or less a prerogative of the Executive. The

current Constitution (1999) has introduced a new system whereby, as with the other justices of the Supreme Court, the President appoints the Chief Justice on the

recommendation of the National Judicial Council.102 The origin of the current practice of

selecting the Chief Justice by seniority from among the sitting justices of the Court is

1979.103 All Chief Justices hitherto had been recruited from outside the Court.

Technically, even today, there is nothing legally preventing the National Judicial Council

from embarking on external recruitment to fill any vacancy in the Court, including the

chief. But as a practical matter, this is highly unlikely, as appointment to a higher judicial

office is seen as a "promotion,"1 and any way, the Council comprises mainly serving

and retired judges.

See Const., s. 231(1). See supra, note 92 and accompanying text. 103 In 1979, prior to his appointment, Chief Justice A. Fatayi-Williams, then the most senior justice of the Court, had indicated that he would resign in the event that he were bypassed. See his memoirs, Fatayi- Williams, supra note 69 at 149. 104 Indeed, the practice appears to have become institutionalized, as it was faithfully followed on four successive occasions between 1983 and 1995 (see Table 3.1) and twice since. But a recent statement by Justice Karibi-Whyte, who until his retirement in January 2002 was the most senior justice after the Chief Justice, appears to indicate that the seniority norm is not necessarily preemptive. See interview, Thisday [Lagos], (28 January 2002), online: (date accessed: 28 January 2002). A similar preferment of seniority in the appointment of the Chief Justice of India has been breached only twice, consecutively, in 1973 and 1977 respectively. On both occasions, in which the prime minister, Indira Gandhi passed over senior members of the Court, the superseded judges promptly resigned. The 1973 appointment of the fourth ranking member of the Supreme Court of India, Justice A.N. Ray as Chief Justice created an unprecedented judicial crisis. The appointment was announced the day after the epoch-making decision, Kesavananda Bharti v. State of Kerala A.I.R. 1973 S.C. 1461, in which the Court, by majority, decided that the power of Parliament to amend the Constitution cannot be exercised so as to alter the "basic structure and framework of the Constitution." The three senior judges bypassed were part of the majority. A detailed account of the politics of the 1973 supersession crisis is provided by K. Nayar, ed., Supersession of Judges (New Delhi: Indian Book Co., 1973), and G. Austin, Working a Democratic Constitution: the Indian Experience (New Delhi: Oxford University Press, 1999) at 278-92. Upon Ray's retirement, the Prime Minister again bypassed the next most senior justice (H.R. Khanna), who was also part of the majority in Kesavananda and appointed instead M.H. Beg as Chief Justice. Unlike the previous supersession, it is believed that the Prime Minister acted on this occasion

218 Neither Canada nor India has a judicial service commission. However, unlike

Canada where appointment to the Supreme Court remains firmly in the in the hands of

the Prime Minister, although today apparently less so than previously, in India, the

contrary to the advice of the Law Minister. See K. Nayar, The Judgement (New Delhi: Vikas Publishing House, 1977) at 169. Baxi has argued that the fact that the reaction of the Court to the supersessions has been short of mass resignation means that the internal institutional significance of the seniority rule may be weaker than it appears. "As in 1973, so in 1977, the justices of the Supreme Court have by their behaviour, established the hard reality that regardless of the debate at the Bar and in media concerning the relevance of the seniority principle to the independence of the judiciary, most members of the Court have not accepted the position that the seniority principle has any significant bearing on the value of the independence of the judiciary. If the immediately involved brother justices resign, it is a matter of their dignity and choice; it raises in the minds of the less senior justices no profound agitation as to the impact of the action of the Government on the independence of the judiciary." See U. Baxi, The Indian Supreme Court and Politics (Lucknow: Eastern Book Co., 1980) at 38. There has apparently been one occasion of a threatened mass resignation. Never in the history of the Court has the chief justice been recruited from outside the Court. In the 1950s, the judges threatened to resign en masse when it was rumoured that Nehru wished to appoint as chief justice M.C. Chagla, then chief justice of the . See Austin, ibid, at 134. See also, M.C. Chagla, Roses in December (Bombay: Bharatiya Vidya Bhavan, 1974) at 171. Interestingly, Gadbois has argued that "had Nehru appointed Chagla as the Chief Justice at the time, it is very unlikely that such action would have precipitated anything like the supersession crisis of 1973, for what was an established custom by 1973 was only a tradition in-the-making in the early 1950s." See G.H. Gadbois, "Supreme Court Decision Making" (1974) 10 Banaras L.J. 1 at 5n. 105 The closest related institution in Canada is the system of permanent advisory committees, established in 1988, for recruiting the federal government-appointed judges of the provincial superior courts. For an account of its development, see M.L. Friedland, A Place Apart: Judicial Independence and Accountability in Canada (Ottawa: Canadian Judicial Council, 1995) at 234-43. For a critique of the extant Executive-based system of recruiting Supreme Court justices, see J.S. Ziegel, "Merit Selection and Democratization of Appointments to the Supreme Court of Canada" in P. Howe & P. Russell, Judicial Power and Canadian Democracy (Montreal & Kingston: McGill-Queen's University Press, 2001) at 131; R. Devlin, A.W. Wayne & N. Kim, "Reducing the Democratic Deficit: Representation, Diversity and the Canadian Judiciary, or Towards a 'Triple P' Judiciary" (2000) 38 Alta. L. Rev. 734. But the current focus on the creation of a nominating council in the debate on reform of recruitment to the Supreme Court of Canada, it has been argued, will bureaucratize rather than democratize recruitment. See D.M. Beatty, Talking Heads and the Supremes: The Canadian Production of Constitutional Review (Toronto: Carswell, 1990) at 263-71. In India, following the recommendation of the Law Commission (121st Report, 1987), the Constitution (Sixty-seventh Amendment) Bill to establish a judicial service commission was introduced in Parliament on 18th May 1990. Under the proposed system, the recommendation of candidates for appointment to the Supreme Court (excluding the Chief Justice) and the High Courts would become the responsibility of a National Judicial Commission, a body to be constituted by the President. The bill lapsed with the dissolution of Parliament. Very recently, the Indian National Commission to Review the Working of the Constitution has recommended the creation of a National Judicial Commission with a membership "which gives due importance to and provides for the effective participation of both the executive and judicial wings of the State as an integrated scheme for the machinery of appointment of judges." The proposed Commission shall comprise of the Chief Justice of India (Chair); two senior judges of the Supreme Court; the Union Minister for Law and Justice; and one "eminent member" nominated by the President after consulting the Chief Justice of India. See Report of the National Commission to Review the Working of the Constitution at para 7.3.7, online: Ministry of Law and Justice, Government of India (date accessed: 2 May 2002).

219 Supreme Court has effectively wrested control over appointments from the government.

Although the Indian Constitution requires the President (through the Prime Minister) to consult judges of the Supreme Court when making an appointment to that Court

(provided the Chief Justice shall always be consulted "in the case of appointment of a

Judge other than the Chief Justice"), a convention was soon established that, in filling a vacancy on the Court, the Prime Minister acts on the advice of the Chief Justice,1 7 who

10R invariably recommends one of the senior High Court judges. In the 1990s, in order to effectively institutionalize judicial control, the Supreme Court created an extra constitutional institution, a judicial collegium. This institution comprises the Chief Justice and the four senior puisne justices of the Court. The Chief Justice may only lawfully recommend for appointment a candidate supported by the collegium.10

106 See Indian Const., art 124(2). 107 The constitutional obligation to "consult" the Chief Justice (ibid.) is, as the Supreme Court described it, a "participatory consultation process." See Supreme Court Advocates-on-Record Association v. Union of India A.I.R. 1994 S.C. 268 [hereafter Advocates-on-Record]. The President may "for good reasons," that must be disclosed to the Chief Justice, decline to appoint the person recommended. However, if the Chief Justice reiterates the recommendation with the unanimous agreement of the judges of the Supreme Court consulted in the matter, the President would be obliged to make the appointment. See In re Presidential Reference A.I.R. 1999 S.C. 1. The role of the Chief Justice has always been decisive. As Austin has observed, even during the time of the first prime minister, Jawaharlal Nehru, the Chief Justice "had virtually a veto power over appointment decisions, a result of the convention and practices of the time and the Chief Justices' strength of character." See Austin, supra note 104 at 125. 108 It is widely assumed that the senior judge of a particular High Court, presumably the chief justice of the court, is the natural candidate for a seat on the Supreme Court of India. See Gadbois, supra note 93 at 328. Indeed, the Supreme Court has specifically affirmed the "legitimate expectation of the High Court Judges to be considered for appointment to the Supreme Court according to their seniority." See Advocates- on-Record at 437, per Verma J. [emphasis added]. Further evidence of this is the controversy that greeted the elevation to the Supreme Court of Mr. Justice Desai of the Gujarat High Court in September 1977. He was only the fourth in seniority in that Court (and sixty-sixth in all-India puisne judges ranking). But a close scrutiny of Supreme Court recruitment since the establishment of the Court has not disclosed an unequivocal practice of preferment of High Court chief justices for appointment to the Supreme Court. "One thing is certain: being a Chief Justice of a High Court is not an essential criterion for appointment as a judge to the Supreme Court of India." See R. Dhavan & A. Jacob, Selection and Appointment of Supreme Court Judges: a Case Study (Bombay: Tripathi, 1978) at 18. 109 See In re Presidential Reference A.I.R. 1999 S.C. 1 at 16. Previously, the Court had stipulated the Chief Justice must take into account the views of only the two most senior puisne justices of the Supreme

220 C. Critique of Supreme Court Recruitment

The experience of India shows that intra-judicial, seniority-oriented recruitment

has been a critical element in securing the autonomy of the Supreme Court. "A major

tenet of the Indian legal culture," claims Gadbois, "holds that political hands neither

clean nor soiled should touch the process of selecting judges, for otherwise the

independence of the judiciary would be eroded." However, concentrating selection on

candidates from within the judiciary may create a tendency towards homogeneity, as

indeed the Nigerian experience shows, thereby diminishing the dynamics that drive

activist judicial policy making. Prior immersion injudicial work could arguably reinforce

a tendency of judges to see choices in terms of law rather than policy. As Lawrence

Baum has argued in the case of the United States Supreme Court, "if justices with this

orientation predominate on the Court, they could structure the general atmosphere in

which issues are considered and decisions made."111 As we shall see in the next chapter,

if the number of non-unanimous decisions were a measure of policy differences between judges, attitudinal divergence in the Nigerian Supreme Court is virtually imperceptible.

A related dimension of intra-judicial recruitment is the impact of judicial

socialization. The apparent homogeneity of the Nigerian Court is partly a result of judicial socialization. This is an interesting factor given that the peculiar challenge for the

rule of law posed by a large expatriate bench was minimized in Nigeria.112 Unlike East

Court. See Advocates-on-Record, supra note 107. See generally, M.P. Singh, "Securing the Independence of the Judiciary - the Indian Experience" (2000) 10 Ind. Int'l & Comp. L. Rev. 245. 110 See Gadbois, supra note 104 at 1-2. 111 See B aum, supra note 70 at 211. 112 See Seidman, supra note 3 at 841, and B.O. Nwabueze, Judicialism in Commonwealth Africa: The Role of Courts in Government (London: C. Hurst, 1977) at 310-11. On methods of informal judicial

221 Africa, where there was hardly an African lawyer before independence, the Nigerian judiciary was rapidly indigenized towards the end of colonial rule. Indeed, the last expatriate Chief Justice was replaced by a Nigerian in 1958. Upon independence, Nigeria probably had a larger legal profession and more local personnel in the higher judiciary than any other African country. Notwithstanding this, the internal norms of the Supreme

Court began evolving within the general framework of colonial governance. The changing membership of the judicial class therefore did not disturb this institutional ethos. Thus, as Seidman observed, the local judges were socialized into the colonial legal system.113 This was especially inevitable in the case of the Supreme Court of Nigeria because it initially comprised many judges who had served in the old Supreme Court and other colonial courts. We saw in chapter one that colonial judges were more or less part of the Colonial Legal Service bureaucracy. As the values of persons deeply socialized into a particular bureaucracy will tend to accord with that bureaucracy's deepest convictions, Seidman was quite right in observing that

the ideology of judges socialized into the Colonial Service was apt to be consonant with the authoritarian ideals of the Colonial Services. The notion of support for the government of the day was too deeply engrained in that Service for colonial judges to readily

socialization, see S.L. Goldberg, "Judicial Socialization: An Empirical Study" (1985) 11 J. Contemp. L. 423 at 434-41. The experience of Kenya with expatriate contract judges is a clear illustration of this problem. See notes 222-27 of Chapter 1 of the present study and accompanying text. The bench of the Supreme Court of Nigeria changed very rapidly after independence. In October 1960, when Nigeria became independent, only two of the five substantive Justices were Nigerians. As Table 3.1 shows, between that year and 1962 and again from 1966-68 there were three expatriate Justices on the Court. But by 1969 there was only one (Lewis), and his early retirement, in 1972, was because the presence of even one expatriate judge on the Court in the face of a considerable pool of highly qualified Nigerian lawyers and judges had become completely untenable. See Eso, supra note 75 at 108-9. However, in rather peculiar circumstances, a non-Nigerian was again appointed to the Court in 1975 for a fixed term of four years. 113 Ibid., at 838.

222 admit of its opposite.

Apart from institutional ethos, the legal education of judges is another factor

shaping collective attitudes. It is significant that throughout the period covered by our study the Supreme Court justices, without exception, had a common background of legal training, wholly or partly, in England.115 The implication of this is obvious enough.

"African judges," wrote Nwabueze, are "handicapped by the fact that their education in

England and in the techniques of English law has insulated them from the values and needs of their own people."11

Their minds have become imbued with ideas about the unquestionability of parliamentary legislation under English law and about the perfection and symmetry of the common law as to render them almost incapable of performing effectively the more creative role demanded of them by constitutional adjudication

114 Ibid., at 839. Judicial socialization is of course a dynamic and interactive process. Paul Weiler makes this point quite clearly in his discussion of the process in the Supreme Court of Canada. When a newly appointed judge arrives in Ottawa, he will find a firm and durable social arrangement facing him. He may have very definite ideas of what he wants to accomplish on the Court, but he will discover that that body does not yield readily to his views about judging. There are a great many people who co-operate in the work of a court, and they have their own well established ways of doing things. Deeply ingrained standards of behaviour exist to channel and co-ordinate these many individual efforts. Our newcomer will be expected to assimilate the features of his judicial role from the same source. Yet even as the judge adjusts to this structure and his judicial role becomes second nature to him, he remains a human being. He can appreciate the way the existing conventions of the judicial office are founded on a shared, though largely implicit, idea of how a society wants its judges to function. The social expectations defining the judicial institution have developed over centuries and are not frozen in their current shape. As we refine and enlarge our views of what courts are for, the individual parts can be rewritten and the structure redesigned. As long as its individual members are reflective and critical about what they are doing, the judicial process will continue to evolve. See Weiler, supra note 98 at 5 115 Almost every justice of the Supreme Court was enrolled in one of England's four Inns of Court. For a background to this "British legacy" in the legal profession in Nigeria, see L.C.B. Gower, Independent Africa: A Challenge to the Legal Profession (Cambridge, Mass.: Harvard University Press, 1967) at 104- 24; and O. Adewoye, The Legal Profession in Nigeria, 1865-1962 (Ibadan: Longman Nigeria, 1977). It was only in 2002 that a completely Nigerian-trained justice of the Supreme Court (N. Tobi) finally emerged. 1'6 Nwabueze, supra note 112 at 311

223 under a written constitution. They are unfamiliar with the constitutional decisions of courts in the U.S. and with the vast literature of American constitutional law, which have greater relevance to the problems that are presented to them than the English decisions which are their stock-in-trade.

Though intra-judicial recruitment has been beneficial to the institutionalization of the Supreme Court, the issue is how the negative effects of homogeneity may be minimized. One possible solution is diversification by using specialization as a factor in recruitment and by appointing women. Professor Kasunmu has argued that specialization should become one of the bases of selection. "There is no point in having a court composed of judges with similar backgrounds of interest in a court that has to deal with a variety of legal issues."119 Unfortunately, it is not clear how this would be relevant in the specific context of intra-judicial recruitment, especially, as he acknowledges, there is at present very little specialization within the Nigerian Bar anyway.120

Even without being consciously reflected in recruitment policy, a collegial court would naturally comprise different "specialists," as a result of career backgrounds, for example. Special expertise in particular aspects of law may, for example, be an important factor in unanimous and majority opinion assignment, as American studies indicate. See S. Brenner, "Issue Specialization as a Variable in Opinion Assignment" (1984) 46 J. Politics 1217; S. Brenner & H.J. Spaeth, "Issue Specialization in Majority Opinion Assignment on the Burger Court" (1986) 39 Western Pol. Q. 520; B.M. Atkins, "Opinion Specialization on the United States Courts of Appeal: The Question of Issue Specialization" (1974) 27 Western Pol. Q. 409. But expertise is only one of a number of competing considerations in opinion assignment. See F. Maltzman & P.J. Wahlbeck, "May It Please the Chief? Opinion Assignments in the Rehnquist Court" (1996) 40 Am. J. Pol. Sci. 421; E.E. Slotnick, "Who Speaks for the Court? Majority Opinion Assignment from Taft to Burger" (1979) 23 Am. J. Pol. Sci. 60. 119 See Kasunmu, supra note 53 at 52. 120 Moreover, the expertise of judges with experience in specialist law firms may actually be taken for granted. In her biography, Madame Justice recalls how she ended up writing the opinion in Shell Oil Co. v. Commissioner of Patents [1982] 2 SCR 536, which no one wanted to write because it was a highly specialized issue. "I remember the silence when [Chief Justice] Bora Laskin said, 'Well, who would like to take this.' ... Bora said, 'Well, Bertha, you have come out of a great big corporate commercial firm, you must know all about the law of patents.' And he said, 'Why don't you write it?' And of course, I was so new that I couldn't possibly say, 'I know nothing about patents either.' So I said, 'Fine,' and I remember how hard I had to work on that, because it was my first case and it was a subject with which I was quite unfamiliar." See E. Anderson, Judging Bertha Wilson: Law as Large as Life (Toronto: University of Toronto Press, 2001) at 151.

224 There is no similar difficulty with recruitment of women. While it may not

radically transform the Court, gender diversity would without doubt have a profound

impact. Realistically, however, its potential impact is likely to be mitigated by the

socialization process on the Court. Yet, if "women judges through their differing

perspectives on life can bring a new humanity to bear on the decision-making process,"

Canada's Madame Justice Wilson has suggested, "perhaps they will make a

difference."121 Before 2005 there were no women were on the Supreme Court of Nigeria.

121 See B. Wilson, "Will Women Judges Really Make a Difference" (1990) 28 Osgoode Hall LJ. 507 at 522 [emphasis in original]. It is probably idle to expect that women judges bring to a collegial court a unique "feminine voice." Yet gender diversity is without doubt a valuable asset in a final court of appeal. As a former member of the South African Constitutional Court has noted, "diversity in a court of final appeal is in my view a good in itself. This does not mean that a woman judge on the panel, or a judge from a different ethnic background will necessarily decide a case differently from a white male judge. But their presence could enrich the court," See S. Kentridge, "The Highest Court: Selecting the Judges" (2003) 62 Cambridge L.J. 55 at 60. The claim that women judges present a "different voice" has been influenced especially by differences identified by Carol Gilligan in how males and females understand themselves and solve moral problems. See C. Gilligan, In a Different Voice: Psychological Theory and Women's Development (Cambridge, Mass.: Harvard University Press). Applying this theory, for example, Suzanna Sherry attributed to Justice Sandra O'Connor (U.S. Supreme Court), when compared with Chief Justice Rehnquist, a feminine voice (civic republicanism) in constitutional decision-making. See S. Sherry, "Civic Virtue and the Feminine Voice in Constitutional Adjudication" (1986) 72 Va. L. Rev. 543. Interestingly, Justice O'Connor herself thinks this characterization is incorrect. See S.D. O'Connor, The Majesty of the Law: Reflections of a Supreme Court Justice (New York: Random House, 2003) at 191-93. See also, S. Davis, "The Voice of Sandra Day O'Connor" (1993) 77 Judicature 134. Sue Davis' study of the U.S. Court of Appeal also contradicts Sherry's claims. See S. Davis, "Do Women Judges Speak 'In a Different Voice'? Carol Gilligan, Feminist Legal Theory, and the Ninth Circuit" (1993) 8 Wis. Women's LJ 143. A statistical review of Charter of Rights decision-making by the first three women judges in the Supreme Court of Canada (Wilson, L'Heureux-Dube, and McLachlin) concluded that the evidence "suggests that gender alone is not a reliable predictor of a Judge's Charter voting record. Just as there is no evidence of a 'typical male' Judge, so there is no evidence of a 'typical woman' Judge." See Morton, Russell & Riddell, supra note 100 at 50. Peter McCormick and Twyla Job came to the same conclusion in their investigation of the performance of women judges in the Alberta Court of Appeal in criminal appeals. See also P. McCormick & T. Job, "Do Women Judges Make a Difference? An Analysis by Appeal Court Data" (1993) 8 Can. J. Law & Soc'y 135. For the United States, see D.R. Songer & K.A. Crews-Meyer, "Does Judge Gender Matter? Decision Making in State Supreme Courts" (2000) 81 Social Sci. Q. 750, and B.B. Cook, "Will Women Judges Make a Difference in Women's Legal Rights? A Prediction from Attitudes and Simulated Behaviour" in M. Rendel, eds., Women, Power and Political Systems (London: Croom Helm, 1981) 216-39. Indeed, a recent cross-national study concluded that, "if gender per se has an effect on the way individuals judge, there should be consistent differences in the patterns of decisions rendered by male and female judges. But the present analysis that examined the decisions of judges on both the top appellate court and an intermediate appellate court in three countries sharing an English common law background discovered no such consistent patterns." See D.R. Songer, A. Clark & R. Johnson, "The Effects of Judge

225 The delay bears more on gender insensitivity than probably anything else, since there were definitely sufficient female judges in the Court of Appeal in the nineties. By 2000, as Table 3.2 shows, the most senior woman judge had been on that bench for well over a decade. Women judges have risen to the top position in many High Courts throughout

Nigeria. We therefore envisage that during the early years of the present century, even allowing for geo-political equity, women would have a significant presence on the

Supreme Court bench. There are two at the beginning of 2009, with the first appointment coming only in 2005.122a With that development, the Nigerian Court was roughly two decades behind the Supreme Courts of the United States, Canada, and India, respectively, where women judges made their initial appearance in the 1980s.123

Specialist and women judges, like any other person selected from within the judiciary, would be defined by their prior immersion in judicial work. Therein lies a principal attraction of extra-judicial recruitment. It is interesting however that if the near

Gender in Appellate Courts: A Comparative Cross-National Test" (paper read at the 2003 Meeting of the American Political Science Association, Philadelphia, 30 September 2003) [unpublished]. Available online: (date accessed: 30 March 2004). 122 This attitude is probably as much represented in the Supreme Court itself as elsewhere. For example, asked in a recent interview whether a woman should be appointed to the Court "to redress the gender imbalance," the retiring Justice Karibi-Whyte replied, "and so what because there is no female Supreme Court judge? Why must there be? This is not a gender issue now. One is not considering whether there is a man or a woman, it has nothing to do with the administration of justice. When a suitable female arrives, we will appoint." See interview, supra note 104 [emphasis added]. 122a In 2005, the first female candidate for the Court, Justice A.M. Mukhtar, was announced. She is a senior appeal court judge (see Table 3.2). This development was anticipated only a few months earlier by a hint by Chief Justice Uwais (interview with Thisday newspaper, 16 Nov. 2004). Available online: Thisday < http://thisdavonline.com/archive/2004/01/13/200401131aw04.html> (date accessed: 3 December 2004). 123 Indeed, it is interesting that just before the mid-1970s, Paul Weiler noted, in his critical review of the Supreme Court of Canada, that he did not "expect a female appointee in the foreseeable future." See Weiler, supra note 98 at 18 [emphasis added]. Justices Sandra O'Connor (1981), Bertha Wilson (1982), and M.S. Fathima Beevi (1989) respectively were the first women justices on the supreme courts of the United States, Canada and India. There are at present two and three women in the supreme courts of the United States and Canada respectively. In India, Justice Beevi retired in April 1992. A second woman was appointed to the Supreme Court of India in 2000 (Ruma Pal).

226 monopoly of intra-judicial recruitment has weakened the Supreme Court of Nigeria as a policy-making institution, extra-judicial recruitment so far has hardly been helpful.

Almost all appointments to the Court from outside the judiciary have been drawn from senior law officers, persons, as we have seen, of like institutional socialization as judicial officers. Perhaps then, extra-judicial recruitment would have a beneficial impact on the intellectual quality of the Supreme Court if suitable persons who are not constrained by the prevailing judicial socialization were put on the Court.124 The Udoji Report recommended that only persons of "exceptional ability" should be appointed to the

Supreme Court and that selection should be diversified to include members of the higher judiciary as well as practicing lawyers and distinguished university jurists.125 No

A strong case has recently been made for this. See L. Epstein, J. Knight & A.D. Martin, "The Norm of Prior Judicial Experience (and its Consequences for the U.S. Supreme Court)" (2003) 91 Calif. L.R. 903. A previous study had also argued that this was precisely the impact extra-judicial recruitment had on the U.S. Supreme Court in the 1940s during the tenure of Chief Justice Harlan Fiske Stone. The Stone justices not only had lack of experience on the Supreme Court, but an extremely low level of judicial service at any level. Of the ten men who served as associate justices under Stone, Wiley Routledge's three years on the Court of Appeals for the District of Columbia represents the only prior appellate court experience. Consequently, Stone's associates had almost no exposure to the "no dissent" tradition common to appellate tribunals. Furthermore, the backgrounds of these men were not such that they would naturally value the practice of deferring to the views of others on matters of public and legal policy. Like Chief Justice Stone, Frankfurter, Douglas, and Routledge had devoted the bulk of their careers to university teaching, an occupation which encouraged them to articulate their individual theories of law and legal institutions. Black, Byrnes, and Burton had come to the Supreme Court directly from the United States Senate where free debate was valued. Roberts had come from private practice, and Jackson, Murphy, and Reed had been high ranking Justice Department attorneys. Consequently, the Stone Court associates not only possessed relatively low levels of Supreme Court experience, but came from occupational traditions that encouraged individual expression. See T.G. Walker, L. Epstein & W.J. Dixon, "On the Mysterious Demise of Consensus Norms in the United States Supreme Court" (1988) 50 J. Politics 361 at 374. 125 Udoji Report, supra note 56 at para 297

227 appointment has ever been made from either of these other categories.

Thus far we have considered judicial recruitment from the perspective of

candidates for the Supreme Court. From an institutional perspective, however, suitability

of intra- or extra-judicial recruitment is also a function of the design and function of the

particular court. In final courts of appeal with general jurisdiction, such as the Nigerian

Supreme Court, candidates with prior judicial immersion are well suited to judicial

business. What is more, from the experience of the Supreme Courts of Canada and India,

it is clear that any limitation this may have for judicial policy making may be

institutionally compensated for. We shall discuss this more fully shortly. Before doing so,

let us clarify the relationship between the institution and its recruitment process by

comparing the South African Constitutional Court and the Supreme Court of Canada.

The post-Apartheid constitution makers were sufficiently concerned about the

danger of the judiciary as custodian of the Constitution, given the legacy of the judiciary

of the Apartheid State, that not only was judicial experience discounted but also a

constitutional window was initially apparently left open for appointment to the

Constitutional Court of a non-lawyer. A person eligible for appointment was stated

simply as anyone "who by reason or his or her training and experience, has expertise in

1 The appointment of Justice Dan Ibekwe (see Table 3.1) was not strictly directly from the bar. At the time of his appointment he was heading an executive department (Commissioner [Minister] for Works, Housing, and Transport) in Eastern Nigeria. India has a similar experience. There has been only one direct appointment to the Supreme Court from the bar (S.C Ray, in 1971). The three others appointed from outside the judiciary were law officers (solicitors-general and an advocate-general). No "distinguished jurist" has so far been appointed to the Court. In 1958, the Law Commission reported that it was "generally recognized that we have not produced in our country academic lawyers and jurists of note who could, as in the United States, be honoured with seats on the Supreme Court Bench." See Law Commission of India, Reform of Judicial Administration (Fourteenth Report) (New Delhi: Ministry of Law, 1958) at 35 [hereinafter Fourteenth Report]. Four decades later, it's difficult to believe that India has yet to produce a

228 the field of constitutional law relevant to the application" of the Constitution and the law.127 Although so far as "expertise in constitutional law" is concerned, no one other than a qualified lawyer has ever been appointed, the record of the South African Judicial

Service Commission interviews does not indicate any particular advantage for candidates

178 with judicial experience. Only a bare half of the judges (and acting judges) who have served on the Constitutional Court had prior judicial experience. The significance of this is that intra-judicial recruitment barely exceeds the constitutionally stipulated minimum

(at all times, at least four members of the Court must have been serving judges at the time of appointment). "What I found overwhelming," recalls a former judge of the Court of his colleagues, "was the depth and variety of their experiences of law and of life. This diversity illuminated our conferences especially when competing interests, individual, governmental and social, had to be weighed. I have no doubt that this diversity gave the court as a whole a maturity of judgment it would otherwise not have had."128a

This system particularly suits the special character of the South African Court as a constitutional court, which is closer in more ways to European constitutional courts than to the Supreme Court of Nigeria, a general appellate court. (In South Africa, the Supreme

Court of Appeal is the final appellate court in non-constitutional matters.) A proper candidate for a seat on a final court of appeal of general jurisdiction is naturally likely to

"jurist of note." What is more plausible is that judicial immersion has become institutionalized as the foremost qualification for the Supreme Court. 127 See Interim Const., s. 99(2)(ii). However, a literal reading of this provision is not necessarily correct. In fact, the Constitutional Court itself was of the view that appointment "is reserved for lawyers. The incumbents are Judges, not sages; their discipline is the law, not ethics or philosophy and certainly not politics." See State v. Makwanyane [1995] 3 SA 391 at 476 (per Kriegler J). The provision is not retained in the Final Constitution (1996). 128 Online: Constitutional Court (date accessed: 7 June 2002).

229 be someone already familiar with judicial decision-making.129 The value of judicial, and

in particular, appellate, experience as a factor in recruitment for the Nigerian Supreme

128a See Kentridge, supra note 121 at 61. 129 Ibid, at 62 ("The Appellate Committee [of the House of Lords] unlike the U.S. Supreme Court, has to deal with the whole field of private as well as public law. ... A Law Lord with neither prior judicial experience nor long years in practice would be at a considerable and possibly incurable disadvantage."). Compare the U.S. Supreme Court. Justice Frankfurter's famous vigorous rebuttal of the relevance of prior judicial experience for service on the U.S. Supreme Court was partly founded on the limited business of that court. See F. Frankfurter, "The Supreme Court in the Mirror of Justices" (1957) 105 U. Pa. L. Rev. 781 at 785. For a comparative study of recruitment for U.S. Supreme Court, see Epstein, Knight & Martin, supra note 124. Complete record of prior judicial experience of the Justices is provided in Epstein et al., supra note 70 at 324-31 (Table 4.9). For a detailed comparison of recruitment in that court with European constitutional courts, see L. Epstein, J. Knight & O. Shvetsova, "The Judicial Appointment Process: Comparing Judicial Systems" (2001) 10 Wm. & Mary Bill Rts. J. 7. Naturally, career diversity, as well as prominence of academic lawyers/jurists, is more likely to be found on the benches of the European (and European-type) constitutional courts than courts where a norm of intra-judicial recruitment is prevalent. For example, "theoreticians" (academic lawyers) dominate the Constitutional Court of Hungary, one of the most activist European courts today. To stand for election, a judge must hold Hungarian citizenship, have no previous conviction, be at least forty-five years old, and have completed a legal education. Further professional qualifications differ for the "theoreticians" and the "practitioner." A theoretician must either be a university professor or have earned the academic degree "Doctor of Government and Legal Sciences" (not to be confused with the title Dr. jur.), which can be compared with the German Habilitation or the American Ph.D. A practitioner must have at least twenty years of experience in a professional practice in a specialized field for which the recognition of a completed legal education is necessary. For appointments of judges to date, preference has been shown for theoreticians. Half of the fourteen judges sitting between 1990 and 1997 have had exclusively academic careers and the other half have close ties to scholarship in that most have been active academically on the side or in teaching or in research. Of these seven "half- practitioners," at the time of their election, three were civil judges, two were practicing lawyers, one had once worked as public prosecutor but for many years had been active in legal academic research, and the seventh had served the Constitutional Court as general secretary for six years before being elected at the end of 1996. In terms of professional specialization, civil lawyers (eight) and public lawyers (five) dominate the Court, whereas criminal law is represented by only one judge. This unusual makeup of the Court can be explained by the fact that in Hungary legal scholars were the driving force behind the liberal- democratic reforms and within legal scholarship civil law was the field in which one could work relatively undisturbed by political pressure. See G. Brunner, "Structure and Proceedings of the Hungarian Constitutional Judiciary" in L. Solyom & G. Brunner, eds., Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court (Ann Arbor: University of Michigan Press, 2000) 65 at 73.

230 Court cannot therefore be lightly discounted. The same is true also of the Supreme

Court of Canada, of which, Peter Russell has noted, "what we expect, above all, from our

Supreme Court justices is an ability to write clear and wise opinions about disputed issues of law. The ingredients of that ability include both a deep knowledge of law and a sensitivity to how the developing edge of the law will affect society."131

The experience of the Supreme Court of Canada is quite instructive. Snell and

Vaughan have observed, the appointment to the Court, especially since 1970, of judges with strong scholarly background "accounts for the greater willingness of the Court to

1 ^7 assume a more creative role." This is interesting because there is in fact a definite ascendancy in intra judicial recruitment.133 83 per cent of recruitment to the Court since

1970 was from within the provincial or federal judiciary.1 4 In fact, that rate is higher than any other period in the history of the Court. Serving judges account for only 63.5 per cent, or forty-six of a total of seventy-four appointments (by 2001) since the Court's establishment. Many of the new judges have also been involved in public life, such as holding a senior position in government or, in a few cases, even an elected office. This,

Collaterally, prior judicial service would also be helpful as a source of information about the candidate's track record. See Kentridge, supra note 121 at 62 ("judicial qualities are best assessed through performance on the bench in lower courts"). See also L. E. Weinrib, "Appointing Judges to the Supreme Court of Canada in the Charter Era: A Study in Institutional Function and Design" in Ontario Law Reform Commission, Appointing Judges: Philosophy, Politics and Practice (Toronto: Ontario Law Reform Commission, 1991) 109. 131 P.H. Russell, The Judiciary in Canada: The Third Branch of Government (Toronto: McGraw-Hill Ryerson, 1987) at 137. 132 J.G. Snell & F. Vaughan, The Supreme Court of Canada (Toronto: Osgoode Society, 1985) at 231. 133 Some observers have suggested that a rule has crystallized already that at any given time the Court includes seven members elevated from the provincial courts of appeal, one from the Federal Court of Appeal, and one without prior judicial experience. See McCormick, supra note 98 at 108. See also I. Greene, et al., Final Appeal: Decision-Making in Canadian Courts of Appeal (Toronto: Lorimer, 1998) at 101.

231 Russell has noted, shows that "judicial experience and experience in public life are not mutually exclusive."

Seventeen of the twenty-five justices appointed to the Supreme Court of Canada between 1970 and 2001 previously held an academic position in a university, many of them full-time law professors. This is a strong indication that academic reputation is an important consideration in judicial selection. It has indeed been claimed for a fact that

"the modern criteria for service on the Supreme Court include either academic reputation or appellate judicial experience or both."136 This pattern of recruitment may partly explain why academic citations have become an important resource in decision­ making,137 resulting in much longer opinions.13 But these developments are also the result of increased participation of law clerks in the business of the Court139 and of

It is perhaps also significant that the first two of the four appointees recruited from outside the judiciary, Yves Pratte and Louis-Philippe de Grandpre, quit the Court within one year and three years respectively. 135 See Russell, supra note 131 136 See McCormick, supra note 98. 137 See P. McCormick, "Do Judges Read Books, Too? Academic Citations by the Lamer Court 1991- 96" (1998) 9 Supreme Court L.R. (2d) 463; G. Bale, "W.R. Lederman and the Citation of Periodicals by the Supreme Court of Canada" (1994) 19 Queen's L.J. 36; V. Black & N. Richter, "Did She Mention My Name? Citation of Academic Authority by the Supreme Court of Canada 1985-1990" (1993) Dal. L.J. 377. An earlier study of a similar trend in the U.S. Supreme Court reported that although the seven justices who most frequently cited legal periodicals were the Roosevelt's 'men-of-affairs' appointees (Frankfurter, Douglas, Black, Jackson, Rutledge, Reed, and Murphy), "there was little evidence of a unique relationship between the fact that some justices were ex-law professors and the extent they cited law reviews." See C. A. Newland, "Legal Periodicals and the United States Supreme Court" (1959) 3 Midwest J. Pol. Sci. 58 at 63. See further, L.J. Sirico & J.B. Margulies, "The Citing of Law Reviews by the Supreme Court: An Empirical Study" (1986) 34 UCLA L. Rev. 131; and O. Maru, "Measuring the Impact of Legal Periodicals" [1976] Am. B. F. Res. J. 227. 138 McCormick reported that the average Supreme Court of Canada decision using academic citations (fifty pages) is more than twice the length of the average decision that did not use citations (twenty pages). See McCormick, supra note 137 at 473. 139 See L. Sossin, "The Sounds of Silence: Law Clerks, Policy-Making and the Supreme Court of Canada" (1996) 30 U.B.C. L. Rev. 279; Greene, et al., supra note 134 at 109-14. Apart from supporting the justices with research, processing of leave applications and analysis of factums, clerks are sometimes entrusted with drafting opinions. See Sossin, ibid, at 296-98. There is very little openness about the actual influence of law clerks on the content of decisions and the policy output of the Supreme Court of Canada.

232 vigorous interest group litigation. The law clerks, it may be said, because they are fresh

from the universities and mostly subsequently take up an academic career, bring the law

school to the Court, thereby "serving as the conveyor belt from the law schools to the

inner sanctum of the Supreme Court."140 Their importance is underscored by the fact that

during the eighties the number of law clerks assigned to each justice tripled.

Unlike Canada, Supreme Court justices in Nigeria rarely have graduate school

education or any experience in university teaching or the higher echelon of the civil

service outside the Legal Department/ Ministry of Justice. Only eight justices, or roughly

11 per cent, have had a graduate degree (including five PhDs). Only three of these were

Sossin, a former law clerk himself, would go on record only as far as suggesting that they influence the decision-making process "in a variety of subtle and indirect ways." Ibid, at 3003-304. Non-lawyers are however less reticent when it comes to acknowledging the actual role of law clerks. Frederick Morton and Rainer Knopff, for instance, attribute to Joel Bakan, one of Chief Justice 's clerks, authorship of the proportionality test for application of Section 1 of the Charter of Rights and Freedoms announced in R. v. Oakes [1986] 1 SCR 103. See Morton & Knopff, supra note 100 at 111. This was subsequently corroborated in Sharpe and Roach's definitive biography of the chief justice. See R.J. Sharpe & K. Roach, Brian Dickson: A Judge's Journey (Toronto: University of Toronto Press, 2003) at 334. In the United States, where there is more openness on the subject, Richard Posner has indicated that the involvement of law clerks in drafting opinions has reached a point where "today, a judge-written opinion, at every level of the American judiciary, is rare." He adds, "with the vast majority of opinions now being written by law clerks, almost all of whom are recent law school graduates, increasingly the law professor's exegesis of the latest Supreme Court decision belongs to the same genre as his comments on his student's papers." See R.A. Posner, Overcoming Law (Cambridge, Mass.: Harvard University Press, 1995) at 57, 88. See also, B. Schwartz, Decision: How the Supreme Court Decides Cases (New York: Oxford University Press, 1996) at 48-55 and 256-61; E. Lazarus, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court (New York: Penguin Books, 1999) at 271-75. "I do not think people are shocked any longer," observes Chief Justice Rehnquist, "to learn that an appellate judge receives a draft of a proposed opinion from a law clerk. I think they would be shocked, and properly shocked, to learn that an appellate judge simply 'signed off on such a draft without fully understanding its import and in all probability making some changes in it." Unpublished address, 17 July 1982, quoted in D.M. O'Brien, Storm Center 6th ed. (New York: W.W. Norton, 2003) at 141. Cf. W.H. Rehnquist, The Supreme Court rev. ed. (New York: Alfred Knopf, 2001) at 261-63. Solid empirical evidence of the extent of clerk authorship of U.S. Supreme Court opinions is beginning to emerge. See, e.g., P.J. Wahlbeck, J.F. Springs & L. Sigelman, "Ghostwriters on the Court?: A Stylistic Analysis of U.S. Supreme Court Opinion Drafts" (2002) 30 Am. Pol. Res. 166 (analysis of identifiable stylistic "fingerprints" in the first drafts of the opinions of Justices Lewis F. Powell Jr and Thurgood Marshall during the 1985 term). 140 Morton & Knopff, supra note 100 at 112. See also Sharpe & Roach, ibid, at 212 ("Of the twenty- seven clerks [Justice Dickson] employed, no fewer than sixteen went on to full-time professorial positions").

233 law school professors prior to their judicial careers. It is unlikely that this pattern would improve in the foreseeable future, because of the current practice of appointing senior justices of the Court of Appeal to fill vacancies on the Supreme Court. As we have seen, in practice, only senior Justices of the Court of Appeal can be considered serious candidates for the Supreme Court. As seniority comes with long judicial service, frequently running over twenty years, 2 it must now be considered exceptional for a potential candidate for the Supreme Court to have had some distinguished career outside the judiciary.

It is also unusual for Supreme Court justices to have been previously active in politics. Except for a few, such as Justices Udo Udoma and Ogundare, who were

Members of Parliament and Justice Ajegbo, who held political party offices, members of the Court usually have no visible political background.1 a It is certainly unlikely in the foreseeable future that "men of affairs," in the mould of Black and Frankfurter, in the

United States Supreme Court, or Albie Sachs, in the South African Constitutional Court, would sit on the Nigerian Supreme Court. Again, here the experience of the Supreme

Court of Canada is instructive. Such appointments are equally rare in Canada and, even more so, India.143 Everywhere nowadays, there is increased emphasis on legal credentials in judicial selection. "Today," observes, Russell, "our legal system is so complex and

141 Justices Elias and Tobi were law school deans. The former, a leading authority in international law, later became a member and sometime President of the International Court of Justice. Karibi-Whyte and Achike were also professors prior to their judicial career. 142 See supra note 80 and accompanying text. 142a See Alabi, supra note 70 at 224. Cf. U.S. Supreme Court, see Epstein et al., supra note 70 at 312- 23 (Table 4.8). 143 It has always been absolutely rare for Supreme Court judges in India to have previously been active in politics. "The typical judge is an apolitical man who has eschewed political activities throughout his career." See Gadbois, supra note 71 at 330. See also, Dhavan, supra note 5 at 25.

234 professional legal standards are so much higher that it is increasingly difficult to develop

and retain legal skills required for a Supreme Court justiceship while pursuing a career in

politics."144

Finally, another implication of the extant recruitment regime is increasingly short

tenure. The result is high turnover in the Supreme Court, even with compulsory

retirement age of seventy years. This volatility has deleterious consequences for

institutional ethos. Table 3.2 shows that the mean age of senior Court of Appeal justices

is 61.65 years. Therefore, at least theoretically, a new appointee to the Supreme Court

from their number would be expected to serve for no more than ten years. What is

already clearly evident is a progressively aging Court146 with a high membership

turnover,147 a development that may result in discontinuities in its jurisprudence.148

Russell, supra note 131. 145 See Nigerian Const., s. 291 (1). The age was raised from sixty-five to seventy in 1995. Justice Karibi-Whyte was the first person to serve on the Court until seventy (retired in January 2002). There has been only one occasion in the history of the Court of ad hominem extension of tenure beyond the statutory compulsory retirement age. Chief Justice Ademola's service was extended apparently because of inability of the government to agree on a suitable replacement. See Chief Justice of Nigeria (Extension of Period of Service) Decree No. 2 of 1971. In the majority of cases departure from the Court was always because of attainment of the age of compulsory retirement. Because average life expectancy in Nigeria is lower than Europe or North America, whether the raising of the retirement age to seventy may result in increased voluntary or early retirement remains to be seen. For an analysis of motivations for (voluntary) retirement of the U.S. Supreme Court justices, see C.J.W. Zorn & S.R. van Winkle, 'A Competing Risks Model of Supreme Court Vacancies, 1789-1992" (2000) 22 Pol. Behavior 145. 146 The geriatric factor is not necessarily highly problematic. For an analysis, see R.A. Posner, Aging and Old Age (Chicago: University of Chicago Press, 1995) 180-201 (discussing whether the quality of judging in U.S. federal courts is highly sensitive to age). 147 In comparison, the experience of the Supreme Court of India, with compulsory retirement at sixty- five, is that there is a complete turnover of the court roughly every decade. This may be illustrated with the fate of the 1980 bench. That year, the Court comprised Chief Justice Chandrachud and seventeen puisne justices. Bhagwati J was the most senior of these and he naturally succeeded as Chief when Chandrachud retired in 1985. But Bhagwati was succeeded barely a year later by Pathak J, who ranked a humble 11th in 1980 - the nine more senior justices of that year having retired in only a space of six years. Indeed, by the time Vankataramiah, No. 15 in 1980, replaced the retiring Pathak as Chief at the end of 1989, there was no other survivor of the 1980 bench. As a fitting close, as it were, Vankataramiah CJ himself was due to retire before that year ran out. Thus, the 18-person bench of 1980 had been completely replaced within ten years. There is more or less a pattern of replacement cycles often years or less. Such was also the fate of the 1950

235 However, a close look at Table 3.1 shows that this is largely a latter-day

phenomenon. On the whole, Supreme Court justices appointed in the 1960s and 70s

(down to 1979) tended to have a longer tenure than those appointed in the 1980s and 90s,

even though the compulsory retirement age was lower in the 1960s than in the later period. Where no account is taken of resignation (five) or dismissal of a Justice (two),

and the one exceptional case of an appointment for a definite term (Chief Justice

Alexander), it is unusual to find substantive justices of the earlier era with a short tenure

comparable to what was commonplace in the 1980s and 90s.

The rapid turnover of the Supreme Court bench necessitated eight appointments to the Court between 1992 and 1993 alone, for example. The result is that half of the

Supreme Court bench comprised freshmen justices. This was indeed again the case in

1998, when six seats were filled in one day. As Table 4.3.4 (chapter 4) will show, turnover was especially high in the 1990s. For example, by the time Justice Iguh joined the Court in September 1993, eight of the thirteen justices on the Court barely two years earlier, in 1991, had retired compulsorily. Let us illustrate the turnover factor in the

bench by 1959; the 1960 bench by 1970; the 1971 bench by 1977; 1978 bench by 1986; and finally, the 1987 bench by 1997. Although there are far fewer judges on the Supreme Court of Canada, a similar trend is noticeable in the recent history of the Court. Thus, when Chief Justice retired in 1990, he was the last member of the Court he joined only in 1980. Within a decade, 1990-2000, seven appointments were made to the nine-member Court. In contrast, there has been relative stability of membership in the South African Constitutional Court. Seven of the original appointees are still on the Court. 148 It has long been recognized that membership turnover in the U.S. Supreme Court, for example, is the primary cause of policy shifts. See L. Baum, "Membership Change and Collective Voting Change in the United States Supreme Court" (1992) 54 J. Politics 3. James Kelly has argued that the relative stability of the membership of the Supreme Court of Canada between 1993 and 1997 was a critical factor in the increased consensus in decision-making under the Charter of Rights. See J. Kelly, "The Charter of Rights and Freedoms and the Rebalancing of Liberal Constitutionalism in Canada, 1982-1997" (1999) 37 Osgoode Hall L.J. 625 at 638-9 and 666. But David Beatty argues that membership turnover by itself isn't such a bad thing. "Regular and systematic turnover protects against discredited and/ or outworn principles and analytical approaches being applied indefinitely and, in so doing, further strengthens the democratic

236 Supreme Court in the context of a particular short time frame. Table 3.3 (below) covers roughly five years (1987-91) during which nine appointments were made to the Court, and barely two years later, had all but one (Justice Wali) retired. The average tenure of the eight was less than 2.5 years.

Table 3.3: Impact of Recruitment Age on Tenure in the Supreme Court (1987-1991)* Tenure Duration

1. A. G. 0. Agbaje 23Sept.1987-23Nov.1990 3 yrs. 2 mths. 2. P. Nnaemeka-Agu 23 Sept. 1987-28 Feb. 1993 5 yrs. 5mths 3. A. Wali 23 Sept. 1987-21 July 2002' 14 yrs. lOmth 4. E. B. Craig 23 Sept. 1987-5 July 1989 1 yr. 9 mths. 5. 0. Olatawura 10 April 1990-3 May 1994 4 yrs. 6. E. I. Akpata 10 April 1990-21 April 1992 2 yrs. 7. U. Omo 16 April 1991-28 August 1993 2 yrs. 4 mths. 8. B. 0. Babalakin 16 April 1991-21 April 1992 1 yr. 9. P. Nwokedi 16 April 1991-4 Nov. 1991 7 mths Total [excl. Wali]: 20 yrs 3 mth. Average [excl. Wali] : 254 yrs

* Extracted from Table 3.1 1. The raising of compulsory retirement age to seventy in 1995 was retroactive. Otherwise, Justice Wali would have retired in 1997. Others in the table retired at sixty-five.

It is unclear why a judge with less than five years before the compulsory retirement age would be elevated to the Supreme Court. 150 As even a former member of

legitimacy of the Court." See Beatty, supra note 105 at 272. For a similar view, see Weiler, supra note 98 at 232. 149 Even without the highly unusual case of Justice Nwokedi, who was on appointed only six months before he attained the compulsory retirement age, the average length of service of the remainder would still be less than three years. However, it must be conceded that under the present system of compulsory retirement at seventy (see supra, note 145), the average tenure would have been significantly longer. 150 Apart from status, one attraction of membership of the Supreme Court may be the retirement benefits, which are extremely generous. This includes a pension for life at a rate of the last annual salary plus all allowances in addition to any other retirement benefits that the person may be entitled. If a retiring

237 the Supreme Court of Nigeria has acknowledged, "the traditions and culture of the

Supreme Court cannot be meaningfully cultivated when justices peep in and pack out of the court."151 Yet, in each of these cases age did not appear to carry any weight in selection. These appointments show a weakness of the present recruitment regime, as the promotion of judges to the Supreme Court has tended to be treated rigidly as a legitimate expectation of seniority. Whether adjustment of freshman justices within the institutional setting of a collegial appellate court is problematic (so-called "freshman effect") is much debated in the literature.152 What seems obvious is that volatile membership may engender conditions that undermine institutional ethos. A system sacrifices its institutional integrity, Huntington pointed out, where "new men, new viewpoints, new social groups... replace each other at the core of the system with bewildering rapidity."153

This is as true of courts as it is of other groups:

[A] gradual rate of membership change allows the institution to socialize new justices into the acceptance of its internal norms. However, a rapid and large influx of new members can disrupt the Court and stunt normal socialization processes.... High levels of inexperience may also provide conditions conducive to a breakdown in decision-making norms. Veteran group members with loyalties to existing behavioral customs must exist in sufficient numbers to inculcate less experienced members into justice has had less than fifteen years judicial service at the time of retirement, which is highly unlikely as we have seen, the pension shall be calculated on a pro rata basis. See Nigerian Const., s. 291(3). 151 Justice CO. Oputa, quoted in Alabi, supra note 70 at 310. 152 For an account of the supposed "freshman effect" in the U.S. Supreme Court, see W. Howard, "Justice Murphy: the Freshman Years" (1965) 18 Vand. L. Rev. 473 at 476-77. Cf. S. Brenner, "Another Look at Freshman Indecisiveness on the United States Supreme Court" (1983) 16 Polity 320. In Canada, Peter McCormick has identified a practice of peer-based apprenticeship of junior justices in the pattern of assignment of opinion writing in the Supreme Court of Canada. See P. McCormick, "Judicial Career Patterns and the Delivery of Reasons for Judgment in the Supreme Court of Canada, 1949-1993" (1993) 59 Supreme Court L.R. (2d) 498. Cf. E.E. Slotnick, "Judicial Career Patterns and Majority Opinion Assignment on the Supreme Court" (1979) 41 J. Politics 640 (U.S. Supreme Ct.). 153 See S.P. Huntington, Political Order in Changing Societies (New Haven: Yale University Press, 1968) at 22.

238 acceptable patterns of behavior. A disproportionately inexperienced Court may have difficulty maintaining allegiance to ways of the past.154

Heavy turnover of judges is just as acute in the Supreme Court of India. Very early in the history of the Court, the Indian Law Commission persuasively pointed out the dangers for its institutional integrity of a situation where judges recruited are unable to serve on the Court for at least ten years, a criticism that remains very instructive.

The selection, mainly of persons who have retired or are about to retire from the High Court Bench as Judges of the Supreme Court, has resulted in those chosen having a very short tenure on the Bench. In our view, it is undesirable that a person who would have a short tenure of office should be chosen as a judge of the Court. It is imperative in the interests of the stability of the judicial administration of the country that a judge of the Supreme Court should have a tenure of at least ten years. Too frequent change of personnel has its disadvantages in a Court whose decisions lay down the law of the land and are binding on all courts in India. Certainty in the law and a continuity in the approach to some basic questions are fundamental requisites and these tend to be impaired if judicial personnel is subject to frequent changes. These objectives can best be achieved, in our opinion, by selecting the Supreme Court Judge at an age when he would have a term of at least ten years on the Bench.155

In conclusion, it is impossible to disagree with Seidman that judicial socialization is a critical input in decision-making. However, as we have seen, the extant practice of

Walker, Epstein & Dixon, supra note 124 at 372-73. "Continuity of membership is conducive to the maintenance of organizational memory, the codification of behavioural norms and their transference from generation to generation, and the maintenance of organizational roles. Thus...the continuity of membership in a structural sense assists in determining the extent of organizational autonomy...." See R. Sisson, "Comparative Legislative Institutionalization: A Theoretical Exploration" in A. Kornberg, ed., Legislatures in Comparative Perspective (New York: David McKay Co., 1973) 17 at 26. 155 See Fourteenth Report, supra note 126 at 37. Reflecting on "institutional instability" suffered by the Supreme Court of India as a result rapid turnover in membership, Vijay Gupta has remarked, "judges with short tenures apparently found themselves close to their impending retirements even before they could adapt to the new institutional environment. This kind of situation, therefore, hardly leaves much scope for many judges to grasp the institutional needs of the Court and respond accordingly." See V.K. Gupta, Decision Making in the Supreme Court of India (A Jurimetric Study) (Delhi: Kaveri Books, 1995) at 86.

239 promoting serving judges to the Supreme Court of Nigeria is not uniquely objectionable.

In fact, as we argue, it is well suited to the jurisdiction of the Supreme Court and ordinarily, it may have the immensely beneficial effect of promoting institutionalization of the Court. In a highly institutionalized system, observed Huntington, "the most important positions of leadership can normally only be achieved by those who have served an apprenticeship in less important positions." Hopefully, the predominance of intra-judicial recruitment tends to mitigate the potentially disruptive effect caused by excessive turnover of membership, as new members are likely to be experienced appellate judges.

The Supreme Court of Nigeria has not distinguished itself as an intellectual institution. The resources of the Court are meagre. Partly because of the training and career of the Justices and partly because of limited research support, the Court has not been able to position itself to draw optimally on transjudicialism. The Court's institutional ethos of reticence in public policy making severely constrains human rights decision-making. It is open to doubt, however, whether its decision-making can be significantly improved without jurisdiction and access reform. A burden of heavy and indiscriminate caseload orientates it towards error correcting rather than toward a policy­ making role. The pressure of its caseload has in turn created institutional responses that further diminish the Court's policy-making capacity and reinforce a judicial practice that disfavours public interest litigation. These issues shall be closely examined presently.

See Huntington, supra, note 153 at 21-22.

240 Chapter Four

HUMAN RIGHTS AND THE DEMAND FOR SUPREME COURT DECISION-MAKING

The preceding three chapters have examined various aspects of the institutional and normative framework of Supreme Court of Nigeria's human rights decision-making. It remains to consider the immediate institutional environment of decision-making - the quantum and nature of the work of the Court. Although its political environment is very important, it is the immediate institutional environment that is perhaps "the primary stimulus to which judges respond in their decisions."1 One striking characteristic of this environment is the Supreme Court's relatively modest experience in human rights decision-making. Even though its caseload is substantial, rights cases form a small share of the Court's business. As a result of this limited opportunity, the Court has been unable to evolve adequate institutional capacity for human rights decision-making. We shall examine the Court's decision-making resources more fully in the next chapter. The present chapter completes our description of the institutional framework of human rights decision-making by the Supreme Court of Nigeria. In the next chapter we consider the

Court's human rights caselaw from the perspective developed in this and the earlier chapters.

The present chapter considers the influence of consumers of Supreme Court decision-making on the rights agenda of the Court and, more generally, their impact on the court's organizational capacity. We identify three principal causes of low demand for Supreme Court human rights decision-making. Perhaps the primary factor is the reputation of the Court for reticent decision-making. A strong or significant demand for a court's intervention in major issues of public policy indicates general satisfaction with its policy outputs. A weak demand is likely, on the contrary, the result of a general belief that the Court is unlikely to reverse major policy decisions of the political branches of government. The Supreme Court has an extensive, largely mandatory jurisdiction. Yet its human rights caseload is small and relatively inelastic. Even in areas where caseload is strong, such as criminal law, human rights issues are rarely raised or vigorously canvassed. Even in the earliest years of human rights decision-making the Supreme Court was reputed for its reticence. As we point out in section I, this was a significant disincentive to litigating human rights and public law issues. In the 1980s, human rights advocacy and public interest lawyering became increasingly prominent in the Nigeria.

There was an explosion of public interest and rights litigation. The Supreme Court stifled the litigation boom by its narrow standing doctrine and by generally discouraging litigating rights in higher courts. The Court continues to prefer its traditional constituents.

Another factor is the Court's weak structural capacity for human rights policy making, arising from the evolution of a rigid multi-panel decision-making structure.

Decision-making through relatively small panels has resulted in a significant structural transformation of the Court. This caseload-driven transformation has oriented the Court further to an error-correcting role. Workload has been a constant factor in reform of the

Supreme Court. For the most part, the simple objective has been improving its capacity to

1 See V.K. Gupta, Decision Making in the Supreme Court of India (A Jurimetric Study) (Delhi:

242 process its caseload. Capacity expansion has been effected by the repeated enlargement of the Court. Between 1970 and 1985 the prescribed number of Justices grew by as much as 50 per cent. Workload and enlargement of the Court are discussed in the second section of this chapter. We are sceptical about the viability of the present size of the

Court. It is a potential threat to the Court's institutional coherence. Nor are we convinced that the capacity of the Court has improved significantly. The Court briefly experimented with enhanced discretionary jurisdiction. As the experience of the Canadian Supreme

Court shows, this solution concentrates the resources of a court on cases raising issues of public importance and frees its time for mature deliberation, thereby sharpening its policy-making capacity. This solution cannot be taken for granted where a court takes the error-correcting role too seriously. For instance, this explains why the solution has been ineffective in the Supreme Court of India.

Finally, the capacity of rights litigators and advocacy groups to mobilize the

Court is weak. In spite of vigorous activism since the 1980s, human rights constituencies do not have a significant influence on the agenda of the Supreme Court. In section 3 we suggest that, at present, available financial, organizational, and legal resources for sustained rights litigation are still meagre. There does not exist what Charles Epp describes as organized support for legal mobilization.2 Rights-advocacy organizations have limited capacity for sustained use of legal strategies. To illustrate, this section provides a case study of the leading organization, The Human Rights Law Service

(HURILAWS). Its donor-supported strategic litigation project brought the death penalty

Kaveri Books, 1995) at 93 [hereinafter, Gupta, Supreme Court of India].

243 issue to the Supreme Court. But with limited resources it can only do so much.

Availability of legal resources is equally limited. Although the Constitution provides an

adequate platform for rights-based court challenges, access to judicial remedies is very

limited. The slenderness of the Court's human rights agenda manifests the limited legal

mobilization potential of the existing regime of strict victim-activated recourse. At the

same time, limited access to the Court and to recourse generally ensures that rights

activists are shut out.

I. BUSINESS OF THE SUPREME COURT

A. Jurisdiction and Caseload

The jurisdiction of the Supreme Court of Nigeria is extensive. As a former Justice put it,

the Court "hears and determines cases on an infinite variety of subjects."3 In this, it is not

unlike other final courts of appeal in the Commonwealth (the purely public law South

African Constitutional Court is the principal exception). It has indeed "been something of

a fetish in Commonwealth nations," Edward McWhinney observed long ago, "that final

appellate tribunals should be courts of comprehensive jurisdiction, embracing both

private and public law with the bulk of their business being private law."4

See C.R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago: University of Chicago Press, 1998) [hereinafter, Epp, Rights Revolution]. 3 P. Nnaemeka-Agu, "The Contribution of His Excellency Judge Taslim Elias to African Customary Law" in E.G. Bello & B. A. Ajibola, eds., Essays in Honour of Judge Taslim Olawale Elias vol. II (Dordrecht: Martinus Nijhoff, 1992) 515 at 531 4 E. McWhinney, "Judicial Restraint and the West German Constitutional Court" (1961) 75 Harv. L. Rev. 5 at 6. Although still formally vested with a general jurisdiction, during the last two decades, private law has a small share of the business of the Supreme Court of Canada. Reform of its discretionary jurisdiction, in 1975, has enabled it to develop a conscious preferment of public law cases. It continues to hear private law cases, but to a much smaller degree than before the reform. Whether a similar reform elsewhere in the Commonwealth would necessarily result in a functional transformation akin to Canada's

244 In the previous chapter we discussed the evolution of the jurisdiction of the

Supreme Court.5 It has extensive appellate jurisdiction and a limited original jurisdiction.

But unlike the Canadian and Indian supreme courts, the Nigerian court has no advisory jurisdiction whatsoever.6 The purely appellate jurisdiction is the source of at least 99 per

cent of caseload annually. Every decision of the Court of Appeal is potentially appealable to the Supreme Court, at least with leave of either court. However, leave may not even be necessary in most cases, as the regime of mandatory appeals (appeal as of right) is large.

Thus, the Court must hear any appeal from decisions of the Court of Appeal in any civil

cannot be taken for granted. What is clear is at that substantial discretionary jurisdiction enables a court, especially a final appellate court, to build agenda to its taste. As Peter Russell has pointed out with the Canadian Supreme Court, "selecting the cases it will hear is an important policy making function of the Court." See P.H. Russell, The Judiciary in Canada: The Third Branch of Government (Toronto: McGraw- Hill Ryerson, 1987) at 346 [hereinafter Russell, Judiciary in Canada]. For a brief account of why South Africa opted for a designated constitutional court, see J. Sarkin, "The Effect of Constitutional Borrowings on the Drafting of South Africa's Bill of Rights and Interpretation of Human Rights Provisions" (1998) 1 U. Pa. J. Const. L. 176 at 189-92. For a background, see L. Berat, "Courting Justice: A Call for Judicial Activism in Transformed South Africa" (1993) 37 St. Louis U. L.J. 849; —, "A New South Africa?: Prospects for an Africanist Bill of Rights and a Transformed Judiciary" (1991) 13 Loy. L.A. Int'l & Comp. L.J. 467. This German-type designated court must not be confused with a functional designation of a regular court as a "constitutional court" when hearing constitutional matters. Thus, the jurisdiction and powers of the Supreme Court of Seychelles in respect of matters relating to the application, contravention, enforcement or interpretation of the Constitution are exercised by not less than two judges of that court sitting as "Constitutional Court". See Seychelles Const., art. 129(1) & (3). Also, jurisdiction to determine any question as to the interpretation of the Constitution of Uganda is vested in the Court of Appeal sitting as a "Constitutional Court." See Uganda Const, art. 137(1). 5 See chapter 3 §2. 6 However, under s. 109 of Independence Constitution of 1960: Parliament may confer jurisdiction upon the Federal Supreme Court — (a) to consider and advise upon any question upon which the Governor-General desires the assistance of the court for the purpose of deciding whether or not any of the powers vested in him by section 94 of this Constitution (which relates to the prerogative of mercy) should be exercised; or (b)to consider and advise upon any question upon which the Governor of a Region desires the assistance of the court for the purpose of deciding whether or not any of the powers vested in him by the constitution of that Region with respect to the exercise of the prerogative of mercy should be exercised. But this provision was never implemented.

245 or criminal proceedings on any question of law or any question as to the interpretation or application of the Constitution.8 In addition, it must hear an appeal on any question as to whether any of the fundamental human rights provisions has been, is been or is likely to be, contravened in relation to any person 9 or for review of death penalty imposed by a lower court.1

The original jurisdiction of the Court is primarily its exclusive jurisdiction in intergovernmental disputes (between the central government and one or more states or between any number of states), involving any question of law or fact on which the existence or extent of a legal right depends ("federalism jurisdiction").11 There is in addition a quasi-original jurisdiction to entertain reference of substantial questions of law from lower courts ("certified questions"). This enables the Court of Appeal (or formerly,

7 See Nigeria Const. 1999, s. 233(2)(a). 8 Ibid., s.233(2)(b). 9 Ibid., s.233 (2)(c). 10 Ibid., s.233 (2)(d). In addition, there is a right of mandatory appeal with respect to any question whether (a) any person has been validly elected to the office of President or Vice-President; (b) whether the term of office of President or Vice-President has ceased; or (c) whether the office of President or Vice- President has become vacant. See ibid., s.233 (2)(e). The National Assembly may expand the appellate jurisdiction of the Court. See s. 233(2)(f). The Court has however resisted attempts at back-door enlargement of its jurisdiction other than through national legislation. A.B. Kasunmu, "The Supreme Court of Nigeria: An Examination of its Composition and Functions" in Kasunmu, ed., The Supreme Court of Nigeria 1956-1970 (Ibadan: Heinemann, 1977) 1 at 15-19 [hereinafter Kasunmu, "Supreme Court of Nigeria"]. 1' See Nigeria Const. 1999, s. 232( 1): The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves and question (whether of law or fact) on which the existence or extent of a legal right depends. A dispute between functionaries of the governments of two or more states, rather than between the states as constituent units of the federation, does not fall within this jurisdiction. See Attorney General of the Federation v. Attorney General of Into State & Ors [1982] NSCC 507. The National Assembly may enlarge the original jurisdiction of the Court. But criminal matters cannot be included in this jurisdiction. See s. 232(2). There have been only two instances of enlargement of this jurisdiction (both of which have long expired): see Emergency Powers (Jurisdiction) Act 1962 and the Constitutional Referendum Act, No. 4 of 1962.

246 a High Court) to refer to the Supreme Court for determination any substantial question of law relating to the interpretation or application of the Constitution arising in a case before it.12 This was the means through which the Court was fed many of its earliest bill of rights cases (see Table 1 [chapter 1]). As the lower court is bound to certify the question

1 7 for the Supreme Court if requested by a party, it has the advantage of speedily, and relatively inexpensively, bringing an issue for determination by the latter. But therein lies the principal potential disadvantage. Authoritative determination of important issues by the Supreme Court could be made even before they are carefully articulated. The

American commentator J.C.N. Paul feared that the certification of abstract issues meant that the reviewing court "may lack records sufficient to provide a factual context for analysis."14 In practice, however, the Supreme Court has laid down strict guidelines for certification of questions of law. The Court may decline to review questions that in its opinion do not genuinely arise in the proceedings before the lower court15 or are not

12 See Nigeria Const., s. 295(3): Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Court of Appeal and the court is of the opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the Supreme Court which shall give its decision upon the question and give such directions to the Court of Appeal as it deems appropriate. 13 However, the Supreme Court has decided that the requirement that the lower court shall refer the question to it if any party to the proceedings so requests arises only where "the question genuinely arises in the proceedings... and where the court is of [the] opinion that the question involves a substantial question of law. References should not be made lightly." See Otugbor Gamioba v. Esezill [1961] 2 SCNLR 237 at 241 [emphasis added]. 14 J.C.N. Paul, "Some Observations on Constitutionalism, Judicial Review and Rule of Law in Africa" (1974) 35 Ohio St. L.J. 851 at 859. 15 Gamioba v. Esezill, supra note 13.

247 formulated with sufficient precision.1 As a result, today's Court is reluctant to accept certified questions.

There exists an ambiguous relationship between jurisdiction and caseload.

Jurisdiction is not necessarily "the most important factor determining the volume of

1 n litigation in the Supreme Court." Yet, modifying jurisdiction may effectively regulate caseload volume. The true significance of jurisdictional rules is that they provide the

"most direct and effective expression" of the projected role of any court.18 But there is no necessary correlation between jurisdiction and actual business. Although certainly facilitative, jurisdictional rules by themselves do not determine a court's business. "They are", noted Peter Russell, "unlikely to be even the main determinant." What they do represent is the effort of formal law-making bodies to pre-determine which disputes a court will adjudicate or who will decide which cases are heard. Once established they act as a screen through which disputes must pass before gaining access to the court, making it easier for some kinds of disputes and more difficult for others to find a place on the court's docket.1

Thus, despite the liberal jurisdiction of the Supreme.Court over human rights and constitutional questions, these matters are barely represented in the business of the Court.

In a survey of Supreme Court decisions from 1963-1997, Alabi found that civil cases constitute between 70 and 80 per cent of total business annually (criminal cases were

"We shall not attempt a complete definition of what amounts to a substantial question of law, but it must be one on which arguments in favour of more than one interpretation might reasonably be adduced. It must also be one which is capable of being formulated with precision, and before a question is referred to this Court it should be so formulated as to enable this Court to deal with all points which may fairly arise, and at the same time to confine itself to those points." See Gamioba v. Esezi II, ibid, at 241-42. 17 See Kasunmu, "Supreme Court of Nigeria," supra note 10 at 16 (suggesting the contrary).

248 between 20 and 30 per cent). This finding corresponds largely with Kasunmu's earlier

survey of docketed caseload from 1956-1970, although it reported that as many as 40 per

cent of appeals were criminal cases.21 However, this higher figure may be because what

was analyzed were total appeals filed annually with the Court's registry rather than the

number the Court actually considered, as some appeals are abandoned and therefore do

not constitute a portion of the business of the Court. It is not unusual, for instance, for a

person convicted of a serious crime to promptly file a notice of appeal rather than risk

running out of time or in the case of a capital offence, in order to temporarily stay

execution. However, there is certainly no doubt that at least by the late 1970s, there was a

significant drop in criminal appeals.

The bulk of the Court's civil business is land claims (mainly title to land, but

excluding mortgages and releases). Alabi estimates that this alone constitutes as much as

44 per cent of all civil cases decided by the Court.22 This underscores the importance of

land in a non-industrial economy, where land use/ ownership is still central to social and

economic life. One result of this is that land title litigation is generally prestigious and

usually protracted. This is far from surprising. Indeed, supposedly excessive land claim

litigation was a constant challenge for the British colonial administration, which blamed

lawyers for exploiting the situation. In contrast, commercial cases (including mortgages

18 See P.H. Russell, "The Jurisdiction of the Supreme Court of Canada: Present Policies and a Programme for Reform" (1968) 6 Osgoode Hall L.J. 1 at 2. 19 Ibid. 20 See M.O.A. Alabi, The Supreme Court in the Nigerian Political System, 1963-1997 (Ibadan: Demyaxs Press, 2002) at 172-79 [hereinafter Alabi, Supreme Court and Political System]. 21 Rasunmu, "Supreme Court of Nigeria," supra note 10 at 23. 22 Alabi, Supreme Court and Political System, supra note 20 at 177. 23 See O. Adewoye, The Judicial System in Southern Nigeria 1854-1954: Law and Justice in a Dependency (London: Longman, 1977).

249 and releases) are roughly only half (23 per cent) the volume of land cases. Torts account for only 8 per cent. Family law and chieftaincy cases are about the same number (9 per cent). Nearly 12 per cent of civil appeals are on practice and procedure. In summary, the work of the Court is mainly criminal and land appeals. The caseload profile of the

Supreme Court, wrote Kasunmu, makes it "essentially a court of criminal and land appeals."24

Figure 4.1 Growth of 'Federalism Jurisdiction' Business (Cases Decided)

Only 5 per cent of civil cases may be classified as constitutional/ administrative law. The Court's jurisdiction to interpret and apply the Constitution is invoked only a

See Kasunmu, "Supreme Court of Nigeria," supra note 10 at 23.

250 few times annually. Indeed, until very recently it was rare for the Supreme Court to find any work under its federalism jurisdiction. There were only two cases during the first two decades after the Independence Constitution.25 As Figure 4.1 shows, except for two years

- 1982 and 1983 - the docket never included even as many as two cases in any particular year before 2000.

Since 2000, however, the Court has become more visible as judicial umpire of

Nigeria's federal system. Between that year and 2004 alone the Court decided as many federalism jurisdiction cases as throughout the previous forty years. Much of this development falls outside the scope of the present study.253 As we discuss below, in previous years the Supreme Court was seen to favour the central government and hence was avoided by the states. The present surge in demand therefore indicates growing trust in the Court. In the post 2000 period, states have secured several successful challenges against actions or policies of the central government. Although in federal systems generally, supreme (or constitutional) courts are usually more likely to support policies of the central government, the increased reception of the Nigerian Court to constitutional

See Attorney General, Eastern Nigeria v. Attorney General of the Federation [1964] N.S.C.C. 160; Head, Federal Military Government v. Military Governor, Mid-Western State & anor. [1973] NSCC 668. For the impact of the Court on the Nigerian federal system during the sixties and seventies, see A. Ojo, "The Role of the Supreme Court in the Resolution of Power Conflict between the Federal and Regional Governments under the Constitution of the First Republic" (1974) 8 Nigerian L.J. 67. 25a See R.T. Suberu, "The Supreme Court and Federalism in Nigeria" (2008) 46 J. Mod. Afr. Studies 451. 26 In Canada, whether the Supreme Court favours the national government in constitutional cases has been much debated. But Professor Hogg argues that the record of the Court cannot justify the claim. See P.W. Hogg, "Is the Supreme Court of Canada Biased in Constitutional Cases?" (1959) 57 Can. Bar Rev. 721. See also S.S. Smithey, "The Effects of the Canadian Supreme Court's Charter Interpretation on Regional and Intergovernmental Tensions in Canada" (1996) 26 Publius 83; J.B. Kelley, "Reconciling Rights and Federalism during Review of the Charter of Rights and Freedom: The Supreme Court of Canada and the Centralization Thesis, 1982 to 1999" (2001) 34 Can. J. Pol. Sci. 321.

251 challenges is a strategic means of maximizing judicial power. As Tom Ginsburg has explained,

Precisely because the power of national institutions to discipline the court is typically greater, it may be in the court's strategic interest to forge a relative balance between national and constituent unit power. By balancing the two levels, the court might gain space to work in. Diffusion itself is a strategy as well as a supporting condition for judicial power.27

Although the Court's first opportunity to consider the ambit of the federalism jurisdiction came rather early, the result was not very promising.28 In fact, there was little doubt from that encounter that this was one area of jurisdiction the Supreme Court was not particularly comfortable with. In 1964, the government of Eastern Nigeria, aggrieved by the figures announced for the controversial national census of 1963, sought a declaration that the central government was not entitled to accept or act on the figures. In particular, it complained that the acceptance of the census figures would affect both the demarcation of electoral constituencies and the making of monetary grants in such a manner as to prejudice the legal rights of Eastern Nigeria. The Court dismissed the application peremptorily. In its view, the claim did not fall within the original jurisdiction of the Court since the government of Eastern Nigeria did not have a legal right to have any particular number of constituencies within its territories.29

T. Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge: Cambridge University Press, 2003) at 87 [hereinafter Ginsburg, Constitutional Courts]. 28 Eastern Nigeria case, supra note 25. 29 According to the Court, the Constitution cannot be construed as conferring on a territory a legal right to have any particular number of constituencies established within its boundaries. ...Thus, even if it is true that acceptance of incorrect census figures by the responsible authority and by both Houses of Parliament would mean that fewer members would be elected to the

252 Perhaps because it was widely believed that the Supreme Court was unwilling to

rule against the central government, ten years elapsed before the next constitutional

challenge under this jurisdiction. Moreover, the intervening prolonged period of

military dictatorship marginalized the role of the Court as umpire. Since the state

governments were appointed by and responsible to the central government under the

dictatorship, recourse to court was naturally an unlikely means of resolving

intergovernmental disputes. As Figure 4.1 shows, during the nearly fifteen years (1966-

79) of dictatorship, the original jurisdiction of the Court was invoked only once. In

contrast, in the brief democratic governance of 1979-1983, States controlled by

opposition political parties resorted to the Supreme Court more than twice as many times

as the previous two decades.31

It is significant that all but one of the cases of the 1980s were challenges by one

or more states against the central government. That intergovernmental disputes are in

House of Representatives by constituencies in any of the territories than would be if correct figures were adopted, we cannot hold that any legal right vested in the territory as such would be affected. Unless some individual elector can show that his personal legal rights have been affected, it may be that no remedy is available by process of law where the establishment of constituencies is based on inaccurate figures, but we cannot allow that consideration to affect our decision and what constitutes a legal right. It should be remembered, moreover, that a certain margin of error is unavoidable in a census involving many millions of people and that while the Court may be competent to decide, as the Court is asked to decide in this case, that irregularities have been such that no reasonable person could accept the figures produced, it is essentially a political matter, where irregularities fall short of that, to decide what margin of error is acceptable. See ibid, at 165-66. 30 See Attorney General ofBendel State v. Attorney General of the Federation [1982] 3 NCLR 1 31 Bendel State, ibid.; Attorney General, Ogun State v. Attorney General of the Federation [1982] N.S.C.C. 1; Imo State, ibid.; Attorney General, Imo State v. Attorney General, Rivers State [1983] N.S.C.C 370; and Attorney General, Ondo State v. Attorney General of the Federation and ors [1983] 2 SCNLR 269.

253 recent years more readily brought to court was largely because the central government is

generally patronizing in dealing with the states. The latter are therefore desperate to rally the Court to their side in a struggle where they have limited political recourse. Early

success, in the Bendel State case (1981), appears to have justified the emerging perception of the Court as an appropriate forum for resolving inter-governmental disputes. This marked the end of a legacy of distrust created by the Eastern Nigeria case.

However, experience shows that quite often the determination of legal issues by the Supreme Court is not dispositive.32 If demand for the Court's federalism decision­ making continues to grow at the present rate, it would largely be because of the strategic value of authoritative determination by the Court in post-litigation intergovernmental political bargaining,33 and also because the transaction costs may remain sufficiently high to justify resort to litigation.34 (The fact that federalism jurisdiction cases enjoy priority

But see P. Monahan, Politics and the Constitution: The Charter, Federalism and the Supreme Court of Canada (Toronto: Carswell, 1987) at 221-44 [hereinafter Monahan, Politics and the Constitution]. 33 Ibid, at 226. See also P.H. Russell, "The Supreme Court and Federal-Provincial Relations: The Political Use of Legal Resources" (1985) 11 Can. Pub. Pol'y 161. Among the "Principles of co-operative government and intergovernmental relations" stated in the Constitution of South Africa are: "All spheres of government and all organs of state within each sphere must co-operate with one another in mutual trust and good faith by.. .avoiding legal action against one another" ."An organ of state involved in an intergovernmental dispute must make every reasonable effort to settle the dispute by means of mechanisms and procedures provided for that purpose, and must exhaust all other remedies before it approaches a court to resolve the dispute." See S. Afr. Const. 1996, ss. 41(l)(h)(vi) & 41(3) respectively [emphasis added]. As the Constitutional Court recently stated, "apart from the general duty to avoid legal proceedings against one another, section 41(3) of the Constitution places a two-fold obligation on organs of state involved in an intergovernmental dispute: First, they must make every reasonable effort to settle the dispute by means of mechanisms and procedures provided for. Second, they must exhaust all other remedies before they approach a court to resolve the dispute." See Uthukela District Municipality & ors v. President of Republic of South Africa CCT 7/02 (decided 12 June 2002) para. 19. However, political actors frequently resort to courts. For an account of the 'political business' of South African Constitutional Court during its early years, see J. Sarkin, "The Political Role of the South African Constitutional Court" (1997) 114 SAL.J 134. 34 Coase 'Theorem' states that regardless of initial allocation of rights, as long as there are no obstacles to negotiation (zero transaction cost), affected parties will work out the most efficient reallocation of resources. (Zero transaction cost is an idealized reference point.) Transaction costs may of course prevent the parties from making the most optimal allocation. See R.H. Coase, "The Problem of Social Cost" (1960) 3 J. L. & Econ. 1. See further, D.W. Allen, "What are Transaction Costs?" (1991) 14 Res. L.

254 on the Court's calendar makes litigation attractive where the odds of getting a favourable decision are good.) The fate of a recent Supreme Court decision amply illustrates these problems.

In 2001, the government of Nigeria requested the Supreme Court to determine the seaward boundary of Nigeria's eight littoral states. The precise dispute with these states was whether this boundary extended beyond the low water mark at the shore (i.e. the seaward limit of the internal waters of these states). What was actually contested was whether extensive petroleum resources lying offshore (within Nigeria's territorial sea and continental shelf) fell within the territory of the littoral states. There is petroleum production in all but one of these states. In two states, production is entirely in adjacent waters offshore. Similar disputes over offshore mineral resources have arisen in the

United States, Australia, and Canada. However, unlike these other countries, in

Nigeria, there was no question at all that full ownership of offshore as well as onshore minerals vests in the central government.37 Nonetheless, the question whether offshore petroleum production is within or outside the territory of the littoral states is directly

& Econ. 1. In the context of federalism, Christopher McKee argues that transaction costs are primarily "litigious" and "political." The former are transaction costs that induce resort to litigation. The latter "are those transaction costs which come into existence once a judicial decision has been rendered. When these transaction costs are sufficiently high, they would induce a government to refrain from exploiting the full implications of a favourable judicial decision and to propose to negotiate an intergovernmental agreement that is not unfavourable to the interests of the litigiously unsuccessful government." See C.T-R. McKee, The Supreme Court of Canada and Intergovernmental Relations: The Impact of Litigious and Political Transaction Costs on Federal-Provincial Conflicts Over Offshore Petroleum Resources in Canada, 1958- 1985 (Ph.D. Thesis, Queen's Univ., Kingston, 1994) [unpublished]. 35 See Attorney General of the Federation v. Attorney General ofAbia State & ors [2001 ] 11 NWLR 689 (jurisdiction phase), [2002] 6 NWLR (pt. 764) 542 (merit). 36 In Canada, for example: Reference re Ownership of Off-shore Mineral Rights (1967) 65 D.L.R. (2d) 353. 37 See Nig. Const. 1999, s. 44(3): "...the entire property in and control of all minerals, mineral oils and natural gas in, under or upon any land in Nigeria or in, under or upon the territorial waters and the

255 relevant to determining their share of revenue from petroleum receipts in the common distributable pool account of the federation ("federation account").38 Petroleum receipts account for over 90 per cent of Nigeria's income. There had been considerable agitation by the Niger Delta communities (where most of Nigeria's petroleum production takes place) for a greater share of income from oil. The central government took the position that offshore production was outside the territory of the littoral states and therefore they could not enjoy any special entitlement to receipts therefrom.40 The central government sought the intervention of the Supreme Court. The government was confident that its position was legally well founded and clearly anticipated a favourable ruling. The states, on the other hand, vigorously objected to the jurisdiction of the Court over the dispute.

The Court rejected their contention.41

No one expected a decision of the Supreme Court to effectively dissipate the heat of agitation. Rather, the strategic objective of the central government of Nigeria appeared to be to use the Court to strengthen its arm in the almost inevitable post-adjudication political bargain. Indeed, the President declared soon after the case was filed that once the

Exclusive Economic Zone of Nigeria shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly." 38 The Constitution requires that all receipts by the central government other than personal income tax of personnel of the armed forces or the police, etc shall be included in the Federation Account. This revenue is distributed between the Federal and State Governments and the local government councils on such terms and in such a manner as shall be prescribed by the National Assembly. See Nig Const. 1999, s. 162. For a discussion of this fiscal regime, see B.O. Nwabueze, Federalism in Nigeria under the Presidential Constitution (London: Sweet & Maxwell, 1983) at 186-92. 39 See A.A. Adesopo & A.S. Asaju, "Natural Resource Distribution, Agitation for Resource Control Right and the Practice of Federalism in Nigeria" (2004) 15 J. Hum. Ecol. 277. 40 For critical review of the decision, see K.S.A. Ebeku, "Nigerian Supreme Court and the Ownership of Offshore Oil" (2003) 27 Nat. Res. For. 291 and E. Egede, "Who Owns the Nigerian Offshore Seabed: Federal or States? An Examination of the Attorney General of the Federation v. Attorney General ofAbia State & 35 Ors Case" (2005) 49 J. Afr. L. 73 (hereinafter Egede, "The Nigerian Offshore Seabed"). 41 See Attorney General of the Federation v. Attorney General ofAbia State & Ors. [2001] 11 N.W.L.R. (pt. 725) 689 (Karibi-Whyte JSC dissenting).

256 court ruled, he would seek a political settlement with the affected states. In the event, the final ruling in April 2002 precipitated an even greater political crisis. The Court's determination that the territory of the littoral states did not extend beyond the seashore not only denied these states of any special share of receipts from offshore petroleum but also meant that the two states without onshore production would lose substantial revenue from the federation account. Indeed, since the ruling was retroactive, the two states were required to refund past payments totalling 44 billion naira (roughly $US326m). In short, the ruling created a serious political crisis, a situation that compelled the federal government to frantically seek negotiations with all the affected states. Negotiations commenced only a month after the ruling was made by the Court. The final settlement provided large special payments to the two states without onshore petroleum production in lieu of payment that the ruling made illegal, a situation that effectively sidetracked the ruling. In addition, the federal government agreed to seek a constitutional amendment to formally override the ruling by abolishing any distinction between onshore and offshore petroleum production for the purpose of determining payments due to the littoral states.41a

41a In the event, the President proposed legislation, enacted by the National Assembly, expressly declaring that the offshore area up to "200-metre water depth isobath contiguous to a State of the Federation shall be deemed to be part of that State for the purposes of computing the revenue accruing to the Federation Account from that State." See the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act 2004, s. 1. A brief but useful account of the post-decision political bargaining is provided in Egede, "The Nigerian Offshore Seabed" supra note 40 at 91 -93.

257 B. Asymmetrical Growth of Human Rights Caseload and Overall Business

The federalism jurisdiction would rarely have a direct bearing on the bill of rights. Its true significance lies in reinforcing the political role of the Supreme Court. Prominence of the

Court in national politics directly enhances its institutional legitimacy. However, unlike the federalism jurisdiction, demand for Supreme Court human rights decision-making has been practically inelastic.

Figure 4.2 (below) compares the human rights cases with the annual output of the

Court from 1961, when the Court announced its first bill of rights decisions, to 2000. The figures stated indicate the output of the Supreme Court rather than the volume of human rights caseload filed during any particular year, because the Court, especially since the

1970s, is in considerable arrears in its work. No reliable information on the number of cases added to the docket annually is available. However, it is assumed for the present purpose that the ratio of human rights cases in the total annual output of the Court is more or less proportionate to their ratio in the annual caseload of the Court. Indeed, if anything, the former is probably likely to be higher than the latter. Because the hearing and determination of criminal appeals is significantly faster than civil appeals, if bill of rights issues were prominent in criminal appeals, human rights decision-making by the Court would be more frequent than the rate of new rights cases being filed. In any case, any drastic surge in demand for human rights decision-making relative to total caseload would hardly fail to show in the annual output of the Court.

258 Figure 4.2: Volume of Human Rights Cases compared with Total Annual Decisional Output

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Annual No. of Decisions —•— Human Rights cases

259 As Figure 4.2 shows, the Court decided no bill of rights case at all in 12 of the 40 years covered by the present study, and for another 16 years, only one or two such cases were decided annually. Thus, in twenty-eight years, i.e. 70 percent of the entire period, only between 0-2 rights cases were decided annually. When this performance is stated as a ratio of the total cases decided annually, only during three years has human rights decision-making exceeded 5 percent of the work of the Court. Even this humble achievement is a later-day development, occurring entirely within the last dozen or so years (1987: 5.3%, 1988: 5.2%, and 1993: 5.2%). Nonetheless, overall, no significant growth was recorded even during this period. The mean for 1985-2000 was only 3.6%.

Given the limited human rights caseload, it is perhaps understandable that important human rights policy issues are rarely part of the agenda of the Supreme Court.

By 1960, the first full year of the Bill of Rights, no one expected that courts were unlikely to be inundated with rights cases. Nationwide, only ten applications for judicial remedies for violation of human rights were filed during the first ten months after the promulgation of the Bill of Rights. As Mr. M.G. de Winton, Solicitor General of Western

Region of Nigeria observed, this compared poorly with 470 civil petitions filed in the

Supreme Court of India in 1950 alone, the first year of India's bill of rights.42 In Canada also, between 1982, when the Canadian Charter of Rights and Freedoms43 was adopted, and 1985, Charter cases constituted 18 per cent of the total decisions of the Supreme

See M.G. de Winton, "Fundamental Rights in Nigeria" in L. Brett, ed., Constitutional Problems of Federalism in Nigeria (London: Sweet & Maxwell, 1961) at 61. See also G. Ezeijofor, "A Judicial Interpretation of Constitution: the Nigerian Experience during the First Republic," in in Kasunmu, ed., The Supreme Court of Nigeria 1956-1970 (Ibadan: Heinemann, 1977) 67 at 86-90 [hereinafter Ezeijofor, "Judicial Interpretation of Constitution].

260 Court of Canada. This is the more remarkable given that the first Charter cases were not even decided by that Court until 1984.4 The impact of Charter cases on the caseload becomes even more pronounced if our perspective is extended by roughly one decade. Of the 1,689 decisions of the Court between 1982 and 1997 Charter cases constituted 21 per cent. Indeed, during the last three years of this period specifically, the ratio was as high as

27 per cent, and in 1993 31 per cent. Impressive as these figures appear, it must be remembered that, unlike the Nigerian situation, Charter cases decided by the Court are actually a fraction of actual demand for Supreme Court Charter decision-making in

Canada, as the majority of Charter litigation is screened out by the Court.46

Why has the Supreme Court of Nigeria's bill of rights jurisdiction attracted very low demand? Is this a result exclusively of factors external to the Court, or is the Court in any wise to blame? The answer is not immediately obvious. There are several anomalies.

It is certainly curious, for example, that demand peaked in the very first year (1961), and just as curious that it plummeted to nil within barely two years. Nearly thirty years passed before the next closest number (6) was attained. Furthermore, the distribution in Figure

4.2 defies what would otherwise have been a natural explanation. Presumably, human rights cases are likely to be fewer during years of military dictatorship than during democratic rule because the Court would be less likely in the former to support

4 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. 44 Law Society of Upper Canada v. Skapinker [1984] 1 S.C.R. 357; AG. Quebec v. Quebec Association of Protestant School Boards [1984] 2 S.C.R. 66; and Hunter v. Southam Inc. [1984] 2 S.C.R. 145. 45 See J.B. Kelly, "The Charter of Rights and Freedoms and the Rebalancing of Liberal Constitutionalism in Canada, 1982-1997" (1999) 37 Osgoode Hall LJ. 625 at 639.

261 constitutional challenges. Nigeria was under military rule between 1966-1979 and 1983-

1999. Figure 4.2 shows wide variations for this period. Although there are also strong variations in overall caseload of the Supreme Court during this period - for example, following establishment of intermediate courts of appeal47- the rights caseload does not necessarily conform to the same pattern.

The cost of legal services is obviously a strong disincentive to sustained bill of rights litigation. In contrast, land and chieftaincy cases dominate the agenda of the

Supreme Court of Nigeria because the value of victory in the Court is clearly worth the cost of litigation ( quite often, chieftaincy and land disputes are actually litigated by or on behalf of 'families' or communities). Land has considerable economic value and chieftaincies are highly prestigious in pre-industrial societies such as Nigeria. The situation is different with human rights litigation. As Charles Epp observes, the fruits of constitutional rights victories are essentially 'public goods,' with the benefits for the immediate plaintiff often outweighed by litigation costs.48 In Nigeria, the individual victim of the violation of a constitutional right would therefore rarely be able to litigate up to the Supreme Court, unless he is lucky to find the pro bono services of a lawyer.483

External sources of funding are practically non-existent. The two-tier appellate process simply meant the Supreme Court was now financially beyond the reach of many potential

46 The Court granted leave in only between 11-17% annually during 1991-2001. In 2001 13% of leave applications were Charter cases. See Supreme Court of Canada, "Statistics 1991-2001" online: http://www.scc-csc.gov.ca/information/statistics/index e.html (date accessed 22 June 2002). 47 This is discussed later in this chapter (§2c). 48 See Epp, Rights Revolution, supra note 2 at 19. 48a The significance of access to legal services in litigating rights is underscored by a recent study showing that the growth of litigation against oil production companies by communities in the Niger Delta is partly because of increased willingness of lawyers to waive fees in return for a share whatever damages

262 patrons. Evidence shows that the volume of appeals to the Supreme Court from Western

Nigeria fell dramatically after the establishment of an intermediate court of appeal, the

Western State Court of Appeal, even without changes to the jurisdiction of the Supreme

Court.

This problem may of course be corrected with the provision of adequate legal aid or other government-supported funding of litigation. Nigeria introduced a legal aid programme in 1976,4 initially for capital cases and other serious criminal offences, which was subsequently expanded to cover cases involving infringement of fundamental human rights protected by the Constitution.50 A Legal Aid Committee administers the programme. Legal services are delivered through its forty-six staff lawyers and about nine hundred lawyers in private practice. For a population in excess of a hundred and twenty million this is grossly inadequate. Yet the programme is badly underfunded and very restricted in scope. According to the terms of its mandate, the Committee may only provide legal representation to persons whose annual income does not exceed 5000 naira

(today, roughly equivalent to US$36). The impact of the programme has been very limited.51 Between 1976 and 2000, only 42,515 applications for legal aid were granted

(less than an annual average of 2000). In comparison, with only a tenth of Nigeria's

may be recovered. See J.G. Frynas, "Problems of Access to Courts in Nigeria: Results of a Survey of Legal Practitioners" (2001) 10 Soc. & Leg. Stud. 397 at 406-408. 49 Legal Aid Act 1976, now cap. 205 Laws of the Federation 1990. 50 See Legal Aid (Amendment) Decree No. 22 of 1994. 51 See O.A. Bowen, "An Operational Assessment of the Nigerian Legal Aid Scheme" in Omotola & Adeogun, eds., Law and Development in Nigeria (Lagos: Lagos University Press, 1987) 259; O.A. Bowen, "The Scope and Finance of the Nigerian Legal Aid Scheme" in Law, Development and Administration in Nigeria (Lagos: Federal Ministry of Justice, 1990) 655.

263 population, the Ontario legal aid programme issued 106,622 legal aid certificates in

2002/2003 alone. These cost over 144 million dollars.53 The existing Nigerian legal aid

programme clearly does not have the capacity to provide substantial support for

litigation. No alternative government funded programme exists.5

Although it is not known how many applicants for legal aid in Nigeria require it

purely in order to litigate human rights claims, the number is likely to be very small

indeed. What is curious, however, is that although the volume of criminal appeals in the

business of the Supreme Court remains very large, the constitutional rights of prisoners

and criminal defendants rarely come before the Court. This may be partly indicative of

low quality of legal services in criminal appeals generally, and considerable unfamiliarity

in the legal profession in Nigeria with the potential impact of the bill of rights on criminal

law and procedure, as indicated by developments in leading jurisdictions abroad. Still, it

is difficult to understand the disinclination to raise constitutional issues, especially as

except for a possible constitutional challenge, criminal appeals before the Supreme Court

See Legal Aid Services Act, 1998, S.O. 1998, c. 26. For a brief account of the evolution of the Ontario legal aid programme, see Report of the Ontario Legal Aid Review: A Blueprint for Publicly Funded Legal Services (Toronto: Ontario Legal Aid Review, 1997) Vol. 1 at 9-22. 53 See Legal Aid Ontario 2003 Annual Report. Available online (date accessed: 7 December 2004). The certificate allows the holder to have access to legal services/ representation by lawyers in private practice. In addition, the programme provides "duty counsel," court services lawyers, who provide "emergency" legal assistance in the courtroom in criminal, family or youth matters where a person eligible for legal aid is without a lawyer. 54 In Canada, apart from funding under various programmes under the Secretary of State, government funds are available to private Charter rights litigators, for example, under the Court Challenges Program and the Test Case Funding Program of the Department of Indian Affairs and Northern Development. See F.L. Morton & R. Knopff, The Charter Revolution and the Court Party (Peterborough: Broadview Press, 2000) at 92-100 [hereinafter Morton & Knopff, Charter Revolution and Court Party]. Ian Brodie found that during the first ten years of Charter cases in the Supreme Court of Canada, the Court Challenges Program funded 15 test cases (including almost all the language rights cases), 15 per cent of non-governmental intervention, and at least one party or intervenor in 9 of 24 equality cases. See I. Brodie,

264 typically lack merit. Although it must hear mandatory appeals, the role of the Supreme

Court of Nigeria in development of rights of criminal defendants has not been impressive.

In comparison, it has been observed, the Supreme Court of Canada's expansive

interpretation of the Charter of Rights' criminal procedure rights in the eighties "provided

a strong incentive" for defendants to mount appeals to the Court.55 Perhaps, therefore, the

Nigerian Court's general indifference to constitutional rights of prisoners and persons accused of criminal offences is a strong disincentive to rights litigation.

Low demand for Supreme Court human rights decision-making is presumably equally a result of grave cynicism bred by the Court's propensity to uphold impugned legislation or policy. This generated a general disinclination to take political complaints to court.56 Sooner than later, as Nwabueze put it, "to go to court on such matters was felt to be a vain effort, since by past experience a decision in favour of the government was considered a foregone conclusion."57 In 1961, the first year the Supreme Court decided bill of rights cases, it seemed that the Court would be flooded with such cases. The fact

"Interest Group Litigation and the Embedded State: Canada's Court Challenges Program" (2001) 34 Can. J. Pol. Sci. 357. 55 See Epp, Rights Revolution, supra note 2 at 177. In Canada, most of the early Charter cases arose in the criminal law context. Patrick Monahan has noted that the courts were indeed far more activist in criminal than non-criminal cases. See Monahan, Politics and the Constitution, supra note 32 at 37. This is probably instructive because, like Nigeria, in the pre-Charter of Rights era, criminal defendants rarely canvassed the Canadian Bill of Rights 1960 before the Canada Supreme Court. This was perhaps because of the evident reluctance of the Court to strike down legislation or official policy. See R. Knopff & F.L. Morton, Charter Politics (Scarborough, ON: Nelson Canada, 1992) at 19-20. 56 B.O. Nwabueze, Judicialism in Commonwealth Africa: the Role of the Courts in Government (London: C. Hurst & Co., 1977) at 243 [hereinafter Nwabueze, Judicialism], and his Constitutionalism in the Emergent States (London: C. Hurst & Co., 1973) at 147 [hereinafter Nwabueze, Constitutionalism]. Canada's experience with its Bill of Rights of 1960 may be recalled here. According to Peter Russell, between 1960 and 1982 only thirty-four cases, or an average of only 1.5 cases annually, involving claims based on the Bill of Rights reached the Supreme Court, and in only five of these did the Court uphold claims based on the bill. "The Supreme Court's halting and unenthusiastic approach to the bill discouraged lawyers from using it." See Russell, Judiciary in Canada, supra note 4 at 343 (citing Peter W. Hogg, Constitutional Law of Canada, 2nd ed. (Toronto: Carswell, 1985) 781-91).

265 that a number of these early cases were certified questions (references of point of law)

from lower courts in pending trials indicated the enthusiasm of litigants, including

criminal defendants, to raise bill of rights issues. Yet by the following year, the number

of such cases decided by the Court had dropped by more than half, and disappeared

altogether over the next two years. Why was the initial enthusiasm so short-lived?

Primarily, it appeared, in the public perception at least, that the odds were

insurmountably stacked against every constitutional challenge of a government policy or

decision. In six years, only two challenges had been successful at the Supreme Court.

While it is true that almost everywhere, government, on average, tends to outperform

other parties in litigation,58 the Nigerian experience was, at least on its face, almost

extraordinary. As we noticed in Chapter 1, almost every human rights case decided by the

Court in 1961-1966 were in favour of the government (see Table 1). This perhaps created

disenchantment with the judicial process. "To what purpose, people were prompted to

ask, were civil liberties guaranteed in the constitution if every violation of them, however

seemingly flagrant, received the sanction of the courts?"59

During the last few years of the period captured in Figure 4.2, however, a stronger

demand for Supreme Court human rights decision-making appears to be emerging.

During 1985-2000, the Court decided almost two and half times more human rights cases

than in the preceding years. Unlike the earlier era, at least one such case featured in the

output of the Court annually. Although still far from becoming a major component of the

_ _

58 See H. Kritzer, "Government Gorilla: Why does Government Come Out Ahead in Appellate Courts?" in H.M. Kritzer & S.S Silbey, ed., In Litigation: Do the 'Haves' Still Come Out Ahead? (Stanford: Stanford University Press, 2003) 342

266 caseload, the number was on the whole pretty steady. The Court appeared once again to get the attention of claimants under the bill of rights. It has been suggested that the Court during this period was in a markedly activist mood.60 While its policy output is significant, it does not necessarily translate into significant human rights policy making by the Court. This activism was concentrated in review of administrative decision­ making, and hardly any issue of important national policy.

This increased demand for Supreme Court decision-making coincided with a major surge in rights advocacy activity in Nigeria and the proliferation of rights advocacy

NGOs.61 Increased rights consciousness,62 as well as extensive cause litigation by many of these NGOs and public interest lawyers, may have had more to do with the growth of the human rights caseload than Supreme Court activism. However, the specific impact of cause lawyering strategies as a factor in this development is also prone to exaggeration.

Although cause lawyering in Nigeria is growing impressively, in reality this factor has so far had only a marginal impact on agenda building in the Supreme Court. It is as yet a long way from the experience of Canada63 or the United States,64 for example. Indeed,

Nwabueze, Judicialism, supra note 56 at 242. 60 See I.E. Sagay, A Legacy for Posterity: The Work of the Supreme Court (1980-1988) (Lagos: Nigerian Law Publications, 1988). 61 See generally B. Ibhawoh, Human Rights Organizations in Nigeria: an Appraisal Report on the Human Rights NGO Community in Nigeria (Copenhagen: Danish Centre for Human Rights, 2001) [hereinafter Ibhawoh, Human Rights Organizations]. 62 This is perhaps largely attributable to educational and advocacy activities of human rights NGOs. For a suggested linkage between growth of rights consciousness and litigiousness, see, e.g., D.F. Henderson, "Law and Political Modernization in Japan" in R.E. Ward, ed., Political Development in Modern Japan (Princeton: Princeton University Press, 1968) 387 at 449-456. However, measured by land titles and chieftaincy suits, and as the business of the Supreme Court shows, Nigerians are impressively litigious. Even the colonial government recognized this. See Report by Sir F.D. Lugard on the Amalgamation of Northern and Southern Nigeria, and Administration, 1912-1919 Cmd. 468 (1920) at § 51(c). 63 See I. Brodie, Friends of the Court: The Privileging of Interest Group Litigants in Canada (Albany: SUNY Press, 2002) [hereinafter Brodie, Friends of the Court]; G. Hein, "Interest Group

267 although Nigerian NGOs with interest in the delivery of legal services are growing, they

are rarely actively involved in initiating or supporting appellate litigation.65 Only two

rights-advocacy groups have demonstrated a capacity to take cases to the Supreme Court.

The present situation is a result of weak capability more than anything else, although it

may also reflect the preferred strategies of these organizations. We shall have more to say

about this in this chapter (§3b). Nonetheless, it is hardly possible for these organizations

to optimize capacity unless courts are more receptive to their participation in litigation.

As we shall explain below, rights-advocacy organizations and interests groups are denied

an appropriate legal environment to develop well-articulated strategic litigation projects, particularly as they do not enjoy standing to litigate human rights claims or to intervene

in such actions.

Another indication of the Supreme Court's unfriendliness to rights litigation is the

"direct or intrinsic relevance" doctrine announced in Ogugu v. State.66 In an extraordinary homage to formalist reasoning, the Court decided that a bill of rights issue,

(other than fair hearing) which was not specifically litigated at trial, could not be raised

Litigation and Canadian Democracy" (2000) 6 Choices 3 [hereinafter Hein, "Interest Group Litigation"]; Morton & Knopff, Charter Revolution and Court Party, supra note 54 at ch. 3. For a critique of the latter, see M. Smith, "Ghosts of the Judicial Committee of the Privy Council: Group Politics and Charter Litigation in Canadian Political Science" (2002) 35 Can. J. Pol. Sci. 3 [hereinafter Smith, "Group Politics and Charter Litigation"]. For a party capability perspective, see R.B. Flemming & G.S. Krutz, "Repeat Litigators and Agenda Setting on the Supreme Court of Canada" (2002) 35 Can. J. Pol. Sci. 811 [hereinafter Flemming & Krutz, "Agenda Setting on the Supreme Court of Canada"]. 64 See generally, G.A. Caldeira & J.R. Wright, "Organized Interests and Agenda Setting in the U.S. Supreme Court" (1988) 82 Am. Pol. Sci. Rev. 1109 [hereinafter Caldeira & Wright, "Organized Interests and Agenda Setting"] and Epp, Rights Revolution, supra note 2 at 48-54 and 65-69. See Ibhawoh, Human Rights Organizations supra note 61 at 23-25. Although the death penalty was put on the agenda of the Supreme Court twice in the 1990s by rights-advocacy groups, they have, surprisingly, in general not been very active in bringing issues of human rights of criminal defendants to the Court.) Many of these organizations run legal clinics and other lawyering programmes. 66 [1994] 9 N.W.L.R. (pt. 366) 1

268 on appeal. According to this doctrine, since the Constitution formally vests original jurisdiction in enforcement of the fundamental human rights guarantees in the High

Court,67 the Supreme Court, or any appellate court, must decline consideration of any issue of fundamental rights raised for the first time on appeal.68

The legal implication of making provisions in Chapter IV of the 1979 Constitution for Fundamental Rights guaranteed by the Constitution and providing in Section 42 thereof that any person who alleges that any of the provisions aforesaid is being or likely to be contravened in any state in relation to him may apply to a High Court or a Federal High Court in that state for redress, is that only a High Court of a State or a Federal High Court has original jurisdiction to entertain and determine such matters especially where they are really not relevant for the determination of the merit of the case or the merit of the appeal thereon. In short, the appellate courts, the Supreme Court inclusive, have no original jurisdiction to determine questions relating to an alleged breach of fundamental

67 See Ch. IV, s. 42 Nigerian Const, of 1979: (1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress. (2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any rights to which the person who makes the application may be entitled under this Chapter. Identical provisions are found in Ch. IV, s. 46 Nigerian Const, of 1999. For a discussion of the evolution of this clause, see chapter 2 §2b. 68 Under the Caribbean's neo-Nigerian constitutional bills of rights, the Privy Council has allowed the issue of constitutionality of the death penalty to be raised for the first time on appeal. See Regina v. Hughes [2002] 2 AC 259 (appeal from the Eastern Caribbean Court of Appeal, which dismissed the defendant's appeal against a death sentence for murder imposed by the High Court of Saint Lucia. Under the Saint Lucia bill of rights, original jurisdiction is vested in the High Court. See Saint Lucia Constitution Order 1978, s. 16); Reyes v. Queen [2002] 2 AC 235 (appeal by special leave against sentence in order to challenge constitutionality of mandatory death penalty under the Criminal Code. Under s. 20 of the Constitution of Belize (No. 14 of 1981) the Supreme Court has original jurisdiction in enforcement of the bill of rights); Fox v. Queen [2002] 2 AC 284 (appeal from the Eastern Caribbean Court of Appeal (Saint Christopher and Nevis) on the constitutionality of mandatory death penalty. Under s. 18 of the Constitution of Saint Christopher and Nevis 1983 the High Court has original jurisdiction in enforcement of the bill of rights).

269 rights where the issue involved is not relevant or intrinsic to the determination of the merit or otherwise of an appeal properly before it. The constitutional question raised in this case does not pertain to the determination of or intrinsic to the merit or otherwise of an issue raised in connection with the determination of the appellants' appeal before the Court of Appeal on which there was an appeal to the Supreme Court. The position then is that the Constitutional question is not properly before the Supreme Court.

It makes good sense for an appellate court to avoid taking on issues that are not properly defined by the concrete facts established at trial.693 But the doctrine announced by the Court is problematic for many reasons. Firstly, it directly contradicts the established position of the Court itself. There was previously no doubt that rights issues could be raised for the first time on appeal. Speaking for a full Supreme Court fourteen years earlier, Fatayi-Williams, CJN stated, "fundamental rights are entrenched in the

Constitution. Even when not pleaded or raised at the court of first instance...it should be possible for any person who complains about an alleged infringement of any of his fundamental rights to canvass the issue of such infringement at any stage of any court proceedings, whether in the trial court or on appeal."70 Chief Justice Bello, who presided and wrote the main opinion in Ogugu was a member of the panel that decided this other case. Strangely, this earlier case was not even cited in Ogugu.

Ogugu, supra note 66 at 48 (per Adio JSC) 69a The South African Constitutional Court, for example, refuses most applications under its direct access jurisdiction because "as a general rule it should not act as a court of first and final instance in relation to constitutional matters that may be heard by other courts." See Mkontwana v. Mandela Metropolitan Municipality [2005] 2 B. Const. LR 150, [2005] 1 SA 530 (C.C.) at para. 11. According to the Court, "as a general rule, the more important and complex the issues in a case, the more compelling the need for this Court to be assisted by the views of another court" (ibid., per Yacoob J). 70 Sofekun v. Akinyemi [1980] N.S.C.C. 175

270 Secondly, the new doctrine exacerbates the cost of rights litigation. In Ogugu, the

police took the five defendants into custody in 1982 for the capital offences of armed

robbery and conspiracy to commit armed robbery. They were convicted and sentenced to

death nearly four years later. They unsuccessfully appealed to the Court of Appeal, a

process that consumed another four years. At the Supreme Court, they raised for the first

time the issue of the death row phenomenon: that carrying out the sentence would amount

71 to inhuman and degrading treatment contrary to the Constitution and the African

Charter on Human and Peoples' Rights.72 The delay in the Court of Appeal was the main justification.73 This argument was completely novel to the Supreme Court.74 Because of

this, the federal Attorney General and all thirty-six state attorneys general were invited to

file amicus briefs. As it turned out, however, the issue was completely avoided. The

Court concluded that it did not have jurisdiction for the reason previously stated.75

S. 31(l)(a) Constitution of Nigeria, 1979: "Every person is entitled to respect for the dignity of his person, and accordingly: no person shall be subjected to torture or to inhuman or degrading treatment." For a discussion of this provision, see chapter 2 §2A. 72 See the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria 1990. Article 5 of the Charter provides: Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, cruel, inhuman or degrading punishment and treatment shall be prohibited. 73 Argument of counsel is summarized by the Court thus, "the inhuman and degrading treatment in the instant case arose from and was constituted by the inordinate delay in the conduct of the proceedings in the Court of Appeal." See [1994] 9 N.W.L.R. (pt. 366) 1 at 25. 74 Although the 'death row' phenomenon was only recently recognized in comparative rights jurisprudence, all the precedents that had accumulated, including those from neo-Nigerian bills of rights jurisdictions in Africa and elsewhere, were cited to the Supreme Court. 75 Appellants' counsel unsuccessfully attempted to persuade the Court to exercise jurisdiction on the basis of the African Charter, since it had a status independent of the constitutional bill of rights. "1 am unable to agree," wrote Bello CJN, "that because neither the African Charter nor its Ratification and Enforcement Act has made a special provision like Section 42 of the Constitution for the enforcement of its human and peoples' rights within a domestic jurisdiction, there is a lacuna in our laws for the enforcement of these rights. Since the Charter has become part of our domestic laws, the enforcement of its provisions like all our other laws fall within the judicial powers of the courts as provided by the Constitution and all

271 It is not clear how the appellants could be expected to raise at their trial the issue of constitutional implication of prolonged confinement on the death row, a post­ conviction development. At the same time, it is hardly expedient to require him to choose between further appeal to the Supreme Court (for which time runs) or abandoning an appeal and returning to the High Court to litigate that constitutional issue. Presumably, the lower court is likely to be reluctant to declare unconstitutional and set aside a sentence that has already been confirmed by a higher court. This also entails additional cost of rights enforcement. Most criminal defendants are likely to find the cost of the two-track process of criminal appeal and rights enforcement prohibitive, particularly as the latter may result in another set of appeals.

The Ogugu doctrine is likely to further reduce the occasions when bill of rights issues are raised in criminal appeals, and therefore to minimize opportunities for the Supreme

Court to intervene in criminal policy. Organizations supporting human rights litigation

other laws relating thereto.... It is apparent.. .that the human and peoples' rights of the African Charter are enforceable by the several High Courts depending on the circumstances of each case and in accordance with the rules, practice and procedure of each court." See [1994] 9 N.W.L.R. (pt. 366) 1 at 26-27. That was indeed the experience of this case. On 17 January 1995, barely three months after the decision, an application seeking a declaration that prolonged prison confinement under a sentence of death was unconstitutional was filed before a High Court by the third appellant before the Supreme Court, on whose behalf the "death row phenomenon" challenge was argued in the Supreme Court. (It is not known what became of the other appellants.) The application was peremptorily dismissed on the ground that it amounted to reopening a case already concluded by a competent court. The Court of Appeal overruled and ordered the case to be tried before another judge. See Human Rights Law Service, "Death Penalty Project," online: The Human Rights Law Service (date accessed: 14 December 2003) (hereinafter HURILAWS, "Death Penalty Project"). As the Court of Appeal subsequently pointed out, the lower court "was under a fundamental misconception that because the Supreme Court had affirmed the death sentence passed on the appellant, no other court in the land could hear and determine his avowed cause of action." See Peter Nemi v. Attorney General of Lagos State & Comptroller of Prisons [1996] 6 NWLR (pt. 542) 42 at 56.

272 would similarly have fewer opportunities to get the Court to consider important human rights issues relating to criminal procedure.

II. ORGANIZATIONAL CHALLENGES OF DEMAND: STRUCTURAL TRANSFORMATION OF THE SUPREME COURT, 1970s-80s

The capacity to cope with its caseload directly affects demand for Supreme Court decision-making. In theory, all things equal, the longer it takes to process an appeal, the lower the value of the Supreme Court decision-making for litigants and consequently lower demand.77 While this may not necessarily result in negative growth of the caseload, it may be safely assumed that several more appeals would have been taken to the Court annually if litigants believed that the time it takes to decide was worth the cost. The volume of human rights cases docketed annually, for example, may be affected by this factor. Demand, it seems, is therefore directly related to the appellate capacity of the

Supreme Court.

A quest for adequate appellate capacity has been the primary objective of operational and structural changes at the Supreme Court. Except for the 1976 reform, the basic, largely unchallenged assumption is that the Court requires more judges in order to cope with its growing caseload. It was hoped that this would reduce the workload of individual Justices. As its work fell deeper in arrears, the bench grew larger. For instance, in 1977, the Court comprised a chief justice and eight justices. Less than ten years later, the number grew by more than 50 per cent. Enlargement of the Court led to the

77 See G. Casper & R.A. Posner, The Workload of the Supreme Court (Chicago: American Bar Foundation, 1976) at 31 [hereinafter Casper & Posner, Workload].

273 institutionalization of decision-making in panels. This fractionalization was intended as a temporary solution to cope with caseload.

It is generally assumed that because of its large caseload the workload of Supreme

Court is excessive.78 The caseload is without doubt heavy for a final court of appeal, and a natural projection suggests it will continue to grow.79 However, the claim of excessive workload has never been definitely established. Caseload growth is not a self-sufficient measure of increased workload. Growing caseload arrears is not conclusive evidence of excess work, but shows simply that the work left undone annually is increasing. This has for long been evident in the Supreme Court of Nigeria. What is obvious is that the

Court's output declined by the mid 1970s. As we shall see below, the Court today is

See, e.g., Report of the Public Service Review Commission (Lagos: Federal Government Printer, 1974) at para. 282 [hereinafter P.S.R.C Report]. ("The Supreme Court is overloaded and seriously in arrears with its work. There are appeals from 1971 still undisposed of and it is at present rarely possible to obtain a hearing date less than twelve months or more ahead.") 79 However, in their study of the caseload of the U.S. Supreme Court, Casper and Posner argues that caseload increases are eventually self-limiting. According to them, if the caseload of a court increases faster than its ability to process cases, the court will respond either by increasing the waiting period for litigants (i.e. delay) or, where it has discretionary jurisdiction, by reducing the fraction of cases that it accepts for review. "Whether delay or refusal to review is used to ration access to court, the value of the court's services to the applicant for review is reduced. Other things being equal, this should reduce the number of applications filed. Conversely, if a court shortens the queue or accepts an increasing number of cases, the value of review will rise and this should induce an increase in the number of cases filed." See Casper & Posner, Workload, supra note 77 at 31-32. See further pp. 57-62. This economic analysis of caseload growth was essentially speculative. "While at some point applicants may become discouraged from seeking Supreme Court review by the long odds against getting it," conceded the authors, there is no persuasive evidence that that point has yet been reached; and we do not know when it will be." Ibid, at 60. Experience shows that movement was actually in the opposite direction. The rate of growth of the caseload of the U.S. Supreme Court after 1973, the last year considered in the study, is among the highest in the history of the Court. See L. Epstein, et al., The Supreme Court Compendium: Data, Decisions & Developments 3rd ed. (Washington, D.C.: CO Press, 2003) at 58-63 (table 2-2) [hereinafter Epstein, et al., Supreme Court Compendium]. It is particularly instructive that although the probability of review had dropped sharply from .10 in the early 1970's to under .05 in the late 1980's to 2001, there has been no decline in absolute number of applications for review. Instead, there has been a marked increase in unpaid applications, whose probability of review had fallen from .01 in the early 1970's to only between .001 and .003 during the later period. See Epstein, ibid, at 70-71 (table 2-6). For a critique of caseload theories, see S. Krislov, "Theoretical Perspectives on Caseload Studies: Critique and a Beginning" in K.O. Boyum &L. Mather, eds., Empirical Theories about Courts (New York: Longman, 1983) at 161. Adaptation of courts to

274 deciding on average only 40 per cent of the number of cases decided annually in the

1960s, even though appeals are processed through more panels today than in the earlier period. On the face, it actually appears that the average workload of individual Justices has fallen, rather than the other way around. For example, roughly half a dozen Justices decided 200 and 212 cases in 1965 and 1966 respectively, whereas two and half times more Justices decided less than a hundred cases in 2000. Therefore, from an average of

33-35 cases per capita in the 1960s, the unit output of the Court has declined to just 6 at the end of the 1990s. This is so even with abandonment of the earlier Court's burdensome practice of occasionally sitting in places outside the seat of the Court to hear appeals from these areas.80 But a per capita metric is only a rough and somewhat inaccurate measurement of workload, since panels, not individual justices, hear cases. In 1979, the minimum number for a panel was raised from 3 to 5 justices (and from 5 to 7 for constitutional cases). To operate three panels, fifteen justices were now required to perform the task previously done by nine. Thus, even with the same total annual output, unit output (i.e. per justice) would have fallen by over 30 per cent, after 1979 compared with a year earlier without any change in the number of cases processed per panel.

The declining annual output of the Court has a number of important implications.

It is not difficult, in the light of experience, to assume that the institutional modification of the Supreme Court in response to caseload growth has either been inadequate or

caseload is more complex that the simple model used in economic analysis. For an interesting case study, see L.K. Robel, "Caseload and Judging: Judicial Adaptations to Caseload" [1990] BYU L. Rev. 3. 80 The practice of two-week circuit sitting declined by the end of the seventies and completely died out by 1986. It has been suggested that the practice promoted a "local outlook" of the Court. See B.O. Nwabueze, The Machinery of Justice in Nigeria (London: Butterworths, 1963) [hereinafter, Nwabueze, Machinery of Justice]. This view is rejected by Kasunmu, "Supreme Court of Nigeria," supra note 10 at 5

275 simply misplaced. In any case, on the long term, enlargement is not a viable solution. It is unlikely that the Court will be enlarged any further, even though there is constitutional room for it.81 With a 16 -person bench, the Nigerian Court is already among the largest final appellate courts anywhere. Further enlargement of the Court may not make sense, and may gravely endanger its collegiality.

A clear alternative to enlarging the Court is a drastic cut in the number of cases it has to decide, by vesting it with greater power to select its caseload. The common objective of most measures taken so far has not been the reduction of the caseload of

Court but enabling it to cope with increasing caseload. This clearly assumed that the

Court was, and ought to remain, an error-correcting institution. A fundamental reform of the Court introduced in 1976, albeit short-lived, was the first occasion that a different objective informed official policy on managing the caseload: the Court was vested with significant discretionary jurisdiction.

A. Workload of the Supreme Court

The clearest evidence that the capacity of the Supreme Court of Nigeria was falling significantly behind the growth of its caseload is increasing delay in disposing of appeals. By the close of the 1960s, for example, it took only 2-3 years on the average to dispose of civil appeals. Criminal appeals were usually concluded within a year. By

1977, however, civil appeals took as long as four years. As a result, a considerable

81 See Nig. Const. 1999, s. 230(2): The Supreme Court shall consist of (a) the Chief Justice of Nigeria, and (b) such number of Justices of the Supreme Court, not exceeding twenty-one, as may be prescribed by an Act of the National Assembly. 82 Kasunmu, "Supreme Court of Nigeria," supra note 10 at 5

276 backlog was fast accumulating. At the end of 1993, for example, 826 cases were pending. Within five years the arrears of the Court's work were twice as great (1650).

Civil appeals now require an average of seven years while some are known to have taken as long as nine years. In comparison, the South African Constitutional Court, for example, disposes of majority of cases in the same term they are filed. It recorded a mean lapse between hearing and disposal of cases of only 58 and 89 days in 1999 and 1998 respectively. A delay of two years between the date notice of appeal is filed and when the case is given hearing was considered by a study group on the Supreme Court of

Canada as evidence of excessive caseload.85

It is interesting that from the early 1970s, the total number of cases decided annually by the Nigerian Supreme Court fell. Thus, while it was taking longer to decide appeals, its output was also declining. Table 4. 1 (below) shows the annual output of the

Court up until 2000. Based on fluctuation of output, the entire period may be separated into three phases. Very high numbers, reaching 229 cases in 1972, characterize the first phase, roughly between 1956-1972. The average annual output was 162. The Court decided well over a hundred cases in any particular year. The comparatively lower numbers for 1968-70 are partly because appeals from Eastern Nigeria ceased during the period as a result of the Nigerian Civil War (1967-70). Appeals from Western Nigeria, on the other hand, were handled in the first instance by the Western State Court of Appeal

83 See P.S.R.C Report, supra note 78. 84 The South African Journal of Human Rights publishes the Constitutional Court statistics annually. 85 See Canadian Bar Association, "Report of the Special Committee of the Canadian Bar Association on the Caseload of the Supreme Court of Canada" (Ottawa: Canadian Bar Association, 1973) at 2 [hereinafter CBA, "Caseload of the Supreme Court of Canada."].

277 (established in 1967). This naturally diminished the flow of cases to the Supreme

Court.87

In 1972, a new Chief Justice, Dr. Elias, was appointed (see Table 3.1). He brought a number of administrative changes to the Court. Almost as soon as he assumed office, the Court issued a monthly reporter that ran for twenty-four years. It is not known why, but at the same time the number of cases decided annually sharply declined. This marked the beginning of the second phase: 1973-87. In 1973, the very first full year with Elias as chief justice, the cases decided by the Court were only half of the preceding year's, and the number continued to fall.

Whatever it was, it was certainly not simply the result of one Chief Justice's preferences. Indeed, during this second period, there were a total of six Chief Justices, more than during the other years combined (see Table 3.1). The establishment of an intermediate Court of Appeal in 1976 was almost certainly a factor accounting for the fall in the cases. But that explanation can hardly stand on its own. The new court was created to relieve the Supreme Court of the pressure of caseload flow. The Supreme Court was already in arrears at this time. Even if the new court could effectively stem the flow of cases to the Supreme Court, there would still be more than enough pending cases to decide at least for the next few years. In any event, in 1975, even before the Court of

Appeal was created, the Supreme Court was only able to decide seventy-five cases.

Again, the numbers for 1979 and 1980, for example, clearly suggest the influence of other factor(s).

86 See supra, Chapter 3, note 54 and accompanying text.

278 These factors are increased panel size from 3 to 5 justices and depletion of the

Supreme Court bench. Although Figures 4.2.1 and 4.2.2 (below) show that the Court had

its full complement of Justices in 1975 and most of it in 1979-80, the reality on the

ground was that there were either vacancies on the Court at some point during the year or

a majority of the Court was not available as a result of extra-judicial assignment, illness,

etc. In 1975, for example, as many as four appointments were made to fill vacancies on a

bench of nine! Indeed, at one point during the year, there were only two Justices

available.88 As the minimum number required for constitutional decision-making is five,

the Court was practically shut down as far as this business is concerned.

The third phase is the period after 1987. There is a noticeable increase in output.

The number appears to stabilize about 100. Although the average annual output of

roughly 93 is still over 40 per cent less than that recorded during the first phase, it is a

decisive improvement on the second phase. The number for 1992 is somewhat out of

pattern, and is probably explained by the less than full complement of the bench that

year. As shown in Table 4.2.4, at the beginning of that year there were only eleven

Justices (instead of sixteen) on the Court. Two of the Justices retired in the course of the

year. Thus, even with four new appointments, vacant seats remained on the Court.

Because it operates as three separate panels, almost any vacancy may make it impossible

See Kasunmu, "Supreme Court of Nigeria," supra note 10 at 42. 88 Chief Justice Fatayi-Williams recollects a period during the year "when there were only two justices (Sowemimo and myself) left in the Court. Incidentally, Sir Udo Udoma was ill in hospital in England at the time, Justice Irikefe was at the head of the States Creation Commission, while the late Dan Ibekwe had been appointed the Attorney General of the Federation." See A. Fatayi-Williams, Faces, Cases and Places (London: Butterworths, 1983) at 143.

279 for the Court to have a minimum number to constitute all panels. The result is that at least one panel is put out of operation.

Table 4.1: Workload of the Supreme Court: Output Analysis, 1956 - 2000

1956 120 1979 18 1957 135 1980 23 1958 142 1981 50 1959 220 1982 71 1960 161 1983 57 1961 189 1984 51 1962 152 1985 76 1963 180 1986 78 1964 146 1987 75 1965 200 1988 114 1966 212 1989 70 1967 127 1990 79 1968 107 1991 101 1969 123 1992 66 1970 130 1993 96 1971 177 1994 89 1972 229 1995 100 1973 115 1996 104 1974 105 1997 101 1975 79 1998 87 1976 127 1999 100 1977 72 2000 96 1978 78

Source: G. Fawehinmi, ed., Digest of Supreme Court Cases, 1956-1984 (Lagos: Nigerian Law Publications, 1985) and the Nigerian Weekly Law Report. (These figures actually represent the annual output rather than the actual workload, since some cases may not be decided during the year of hearing. However, there is a substantial correlation.)

However, being able to operate three panels does not always guarantee a large output. For example, during the first half of 1998, the membership of the Court was only

280 ten (including the Chief Justice). This was barely sufficient for two panels. However, the filling of the six vacancies later that year literally added a full panel to the Court. That presumably should have boosted appellate capacity by roughly a third. However, this did not translate into output. As Table 4.1 shows, in 1999, the first full year with its complete complement of Justices, the Court decided a hundred cases. Although this was 15 per cent more than the previous year, the number is roughly equivalent to the cases decided annually in 1995-1997, when the Court was severely depleted. Granted that cases do not necessarily count equally, it is nonetheless curious that the 1998 appointments did not have a more pronounced impact on the output of the Court. It certainly calls into question any direct relationship between the number of judges on the Court and its appellate capacity.

Nothing we have said so far explains why three times more Justices are required today to achieve barely 60 per cent of the output of the Court in 1960. Before considering possible explanations of this fall in output it is important to be clear that simply because fewer cases are decided in a particular year relative to a previous year does not necessarily indicate that the Court is less productive. There is no caseload metric for measuring workload, as it is not possible to assign equal weight to cases. In the real world, as William O. Douglas pointed out, "cases are not fungible. Fewer cases in one term may indeed make for more work than a larger number in another."

W.O. Douglas, "The Supreme Court and its Case Load" (1960) 45 Cornell L.Q. 401 at 411.

281 unless every case tendered to the Court is identical with respect to the difficulty of deciding... - as of course it is not - one is one treacherous ground in using caseload statistics to estimate the actual workload that the cases represent. Standardizing for difficulty is out of the question90

There are a number of possible conclusions about the productivity of the Supreme

Court of Nigeria one may draw from the fall in output. A potentially compelling explanation is that the business of the Court from the 1970s became more sophisticated.

The caseload of the modern Court may be more demanding. The characteristic short, precis-type single opinions apparently suggest that the cases of the 1960s were typically simple appeals that were not technically or intellectually demanding. ' Opinions published in the 1960 and 1961 volumes of the Supreme Court of Nigeria Law Report, for example, rarely exceed five or six pages. What has changed is not the nature of the business of the Supreme Court: it has always been dominated by criminal and land/ chieftaincy cases. It is more likely that it is the sophistication in the legal questions put to the Court, if this explanation is credible, that has put increased pressure on Justices' time.

The establishment of intermediate courts of appeal may have been a prominent factor in reorienting the quality of issues for consideration of the Supreme Court.

The weakness of this explanation is that as the work of the Court comprises predominantly mandatory appeals, review is typically sought to correct errors of lower courts rather than to address policy making. Indeed, issues previously decided by the

Court frequently recur in its output. In many of these cases no serious attempt is even

90 Casper & Posner, Workload, supra note 77 at 64.

282 made to convince the Court to reconsider its position. Thus, it can hardly be said that every case nowadays is difficult. On the contrary, even a cursory check shows that the

Court does not have much difficulty in deciding a majority of its cases. It functions mainly as an error-correcting institution. Furthermore, human rights and constitutional cases which may potentially take the Court unto tough terrain of public policy rarely feature in the docket, as we observed in the previous section of this chapter. Finally, without any room for non-party intervention, the Court is often not invited to undertake the potentially difficult task of considering the consequences of its decision beyond the interests of the actual parties in a case.

Indeed, a relatively small caseload of constitutional cases may put enormous pressure on a court's time. The South African Constitutional Court, for example, has a leisurely caseload. It decided only one hundred and twenty-nine cases between 1995 and

2000, i.e. an average of roughly twenty-one cases annually. A majority of these, however, are bill of rights cases, where the Court is often confronted with stark choices of public policy. Because interest groups intervene in many of these cases, the issues before the

Court are varied and complicated.

Perhaps a more credible defence of the claim that the Supreme Court's work may be more demanding today is the rise of individual opinions. We shall discuss this more fully in the next chapter (chapter 5 §2 A). In the 1960s most cases were disposed of by a single opinion authored by a member of the Court, with others typically concurring without comment. Separate opinions of any form were highly exceptional and usually

91 Kasunmu, "Supreme Court of Nigeria," supra note 10.

283 limited to a couple of paragraphs. A noticeable shift occurred sometime in the 1970s.

Certainly by the 1980's it had become routine for every member of a panel deciding a case to issue a full-length opinion covering practically the same issues as the other

Justices. The present practice puts far greater strain on the Justices than anything their counterparts of the 1960s experienced. Assuming equal assignments, in the 1960s, a member of a five-person panel that decides twenty cases could expect to write opinions for only four. But today, he would be writing practically five times as many opinions.

With such burden of opinion writing, combined with the present trend of longer opinions, it is hardly a surprise that time lapse between hearing and disposal of appeals has progressively lengthened.

B. Enlarging the Court

The modern Supreme Court has more judges than most final courts of appeal in the

Commonwealth. From only six permanent Justices in the 1960s, the number has grown to sixteen. At the same time, ironically, the relative size of the Court as a decision-making organization has shrunk. Formerly, practically the full complement of Justices heard appeals. Today, the work of the Court is shared between three largely independent panels of five Justices. Occasionally, in constitutional cases and for reconsideration of precedents, an enlarged panel of seven is struck. The business of the Court is therefore at all times is discharged by less than half of its members.

284 The specific number of Justices on the Court is set by legislation - the Supreme

Court Act. However, the Constitution stipulates a minimum or maximum number, as the case may be. The original Court comprised three permanent members: a Chief Justice and two "Federal Judges." The Constitution authorized federal legislation to increase the number and to create acting Federal judgeships whenever required. It was, however, only during the first year (1956) that the Court had this prescribed minimum of three permanent members. The number increased by one the following year, and increased again by one in 1958. It is interesting that in 1956, 1957, and 1958, there were also 4, 1, and 5 acting Federal Judges respectively. These ad hoc appointments boosted the Court's membership to eight and nine Justices respectively in 1956 and 1958. The prominence of ad hoc judges in the early Court is curious, and certainly indicates that even at the outset, its primary error-correcting function was considered to require a sizeable bench.

1959 saw the introduction of an additional source of non-permanent judges. Chief

Justices of the federal territory (Lagos) and of the States of the Federation were made ex officio Justices of the Court.93a This increased the number of judges designated to the

Court by four. There were therefore ten and eleven judges on the Court in 1959 and 1960 respectively, 50-60 per cent of who were non-permanent. Although that number is considerable, the ex officio judges probably did not significantly add to the capacity of the Court. They sat infrequently since they had their own full-time judicial/ administrative responsibilities, and some resided considerable distances from the seat of

92 Federal Supreme Court Act, no. 12 of 1960. Re-enacted as Supreme Court Act, cap. 424, Laws of the Federation 1990. 93 Nigeria Const. 1954, s. 138. 93a This arrangement remained under the Independence Constitution (1960), s. 104 2(c).

285 the Court. This was therefore not a very convenient arrangement in the first place, and in 1963, it was abolished. In spite of this observation, it cannot be ignored that the output of the Court was very high between 1959 and 1963 (see Table 4.1).

The Independence Constitution, 1960 slightly altered the membership of the

Court by increasing the minimum number of (permanent) Justices to three,95 although the actual number of sitting Justices was statutorily set at five. 5a That year, three new permanent Federal Judges, the largest number since inception, were appointed to the

Court (see Table 3.1), bringing the total to six (including two Nigerians) plus the chief justice and one ad hoc Justice. The Republican Constitution (1963) discontinued the practice of ex officio justices and provided instead for a Chief Justice and a minimum of five Justices.96 Rather surprisingly, the number was increased the following year to eight. 7 In 1977 and 1979, the number was increased to ten and twelve respectively.98

The present 16-person bench structure (the Chief Justice and fifteen Justices) was introduced in 1984.99

For much of this period, at least until 1975, ad hoc appointments (non-permanent judges) continued to be made to the Court as well (hired by the Chief Justice to relieve workload).100 The objective of this particular complementary recruitment is unclear since

See Nwabueze, Machinery of Justice, supra note 80 95 Nigeria Const. 1960, s. 104. 95a See Federal Justices (Increase) Order L.N. 112 of 1960, s. 2 (made pursuant to Federal Supreme Court (General Provisions) Ordinance, No. 27 of 1955). 96 Nigerian Const. 1963, s. 111. 97 See the Justices of the Supreme Court Act, No. 4 of 1964 and Act No. 28 of 1964. 98 See Supreme Court (Amendment) Decree, No. 72 of 1977; The Supreme Court (Amendment) Decree, No. 41 of 1979. 99 The Supreme Court (Amendment) Decree, No. 10 of 1984. 100 The ad hoc judges retained their substantive positions in lower courts, until, in many cases, offered a permanent seat on the Supreme Court after some years.

286 permanent positions were often left vacant for long periods, as Tables 4.2.1- 4.2.4 shows.

We have broken the last three decades (1970-2000) into four periods based on the statutorily prescribed size of the Court. As we have just seen, the composition of the

Court was officially enlarged three times during the three decades. We have marked the beginning of the enlarged court in each case from following year. Secondly, all sitting

Justices by October of any year are included in number on the Court at the end of that particular year. Of the four periods, only in 1978-1979 was no seat on the Court left vacant. In contrast, during 1970-1977 and 1980-1984 respectively only in one year did the Court have its full bench. Indeed, in 1970 and 1971, as many as a third of the seats on the Court were unfilled.

The problem was clearly exacerbated during 1985-2000. This was a period when, it would be recalled, ad hoc appointments were no longer made to the Court. Only in the last three years of this period did the Court finally have sixteen Justices. For eleven years, the Court had at least three vacant seats annually. It was severely depleted from 1994 to

1997 when it was a short of its statutory number by between a quarter and a third. Yet it is remarkable that the average annual output during these four years is among the highest attained by the Court during the last quarter century.

287 Table 4.2.1: Filling Seats on the Supreme Court, 1970-1977 (9-member Bench)

1970 1971 1972 1973 1974 1975 1976 1977

1. Ademola(1958) X X X 2. Idigbe(1975) X X X 3. Coker(G.B.A.)(1964) X X X X X X 4. Lewis (1966) X X X 5. Madarikan (1968) X X X X X 6. Udoma(1969) X X X X X X X X 7. Fatayi-Williams(1969) X X X X X X X X 8. Sowemimo (1972) X X X X X X 9. Elias (1972) X X X X 10. Irikefe (1972) X X X X X X ll.Ibekwe(1973) X X X 12.Bello(1975) X X X 13. Alexander(1975) X X X 14. Obaseki(1975) X X X 15.Nasir(1975) X X Number (net at year's end): 6 6 6 7 7 9 8 8

* Year of appointment indicated in parenthesis. The end-of-year figures do not take into account any vacancy occurring in the last quarter of the year.

288 Table 4.2.2: Filling Seats on the Supreme Court, 78-1979 (11-member Bench)

1978 1979 1. Idigbe (1975) X X 2. Udoma(1969) X X 3.Fatayi-Williams(1969) X X 4. Sowemimo (1972) X X 5. Irikefe(1972) X X 6.Bello(1975) X X 7. Alexander (1975) X X 8.0baseki(1975) X X 9.Eso(1978) X X 10.Ardo(1978) X X ll.Aniagolu(1978) X X 12. Nnamani (1979) X 13.Uwais(1979) X Number (net at year's end): 11 11

Year of appointment indicated in parenthesis.

289 Table 4.2.3: Filling Seats on the Supreme Court, 1980-1984 (13-member Bench)

1980 1981 1982 1983 198-

1. Idigbe (1975) X X X X 2.Udoma(1969) X X X 3. Fatayi-Williams (1969) X X X X 4. Sowemimo(1972) X X X X X 5. Irikefe (1972) X X X X X 6.Bello(1975_) X X X X X 7. Obaseki(1975) X X X X X 8.Eso(1978) X X X X X 9.Aniagolu(1978) X X X X X 10.Nnamani(1979) X X X X X ll.Uwais(1979) X X X X X 12. Oputa(1984) X 13.Kawu(1984) X 14. Karibi-Whyte (1984) X 15.Kazeem(1984) X 16. Coker(D.O.)(1984) X Number (net at year's end): 11 11 10 9 13

* Year of appointment indicated in parenthesis. The end-of-year figures do not take into account any vacancy occurring in the last quarter of the year.

290 Table 4.2.4: Filling Seats on the Supreme Court, 1985-2000 (16-member Bench)

1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000

1. Sowemimo (1972) X 2. Irikefe(1972) X X X 3.Bello(1975) X X X X X X X X X X X 4. Obaseki(1975) X X X X X X X 5.Eso(1978) X X X X X X 6. Aniagolu (1978) X X X 7.Nnamani(1979) X X X X X X 8.Uwais(1979) X X X X X X X X X X X X X X X X 9. Oputa (1984) X X X X X 10.Kawu(1984) X X X X X X X X X ll.Karibi-Whyte(1984) X X X X X X X X X X X X X X X X 12.Kazeem(1984) X X X 13.Coker(D.O.)(1984) X X X X 14.Belgore(1986) X X X X X X X X X X X X X X X 15. Wali (1987) X X X X X X X X X X X X X X 16. Craig (1987) X X X 17. Nnaemeka-Agu (1987) X X X X X X X 18.Agbaje(1987) X X X X 19.Akpata(1990) X X X 20. Olatawura(1990) X X X X X 21.Babalakin(1991) X X 22.Nwokedi(1991) X 23.0mo(1991) X X X 24.Kutigi(1992) X X X X X X X X X 25. Ogundare (1992) X X X X X X X X X

291 Table 4.2.4 (continued)

1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000

26. Ogwuegbu(1992) X X X X X X X X 27. Mohammed (S.U.) (1992) X 28. Mohammed (U.) (1993) X X X X X X X X 29.0nu(1993) X X X X X X X X 30.Adio(1993) X X X X X 31.1guh(1993) X X X X X X X X 32. Kastina-Alu(1998) X X X 33.Achike(1998) X X X 34.Kalgo(1998) X X X 35.Uwaifo(1998) X X X 36. Ejiwunmi (1998) X X X 37.Ayoola(1998) X X X Number (net at year's end): 13 13 15 14 11 11 12 13 13 12 12 11 10 16 16 16

* Year of appointment indicated in parenthesis. The end-of-year figures do not take into account any vacancy occurring in the last quarter of the year.

292 Figure 4.3: Actual compared with Statutory Number of Justices, 1970-2000

10 11 16 No. of justices

] Statutory No. of Justices • Actual No. of Justices

293 If the policy of frequent expansion of the Supreme Court was informed by a need for more judges to enable the Court handle its caseload more effectively, the same objective could have been achieved by optimizing the existing bench. Figure 4.3 compares sitting Justices with the number prescribed by law from 1970-2000. This does not take account of temporary absence from the Court due to illness, non-judicial assignments and so on. Even without these other occurrences, the work of the Court was often carried out by less than the full court. There were, for instance, only ten sitting

Justices in 1997, less than the number in 1978. However, the policy of increasing the number of justices has had very little payoff. There has been no proportionate impact on the Court's output. The experience of the Indian Supreme Court also reveals that caseload-driven enlargement of the bench has had limited value. Like the Nigerian

Supreme Court, the Indian Court is burdened by substantial caseload arrears. As with

Nigeria, "the primary policy so far," remarks an eminent scholar of the Court, "has been to increase judges."101 When the Court was established in 1950, the Constitution provided for a Chief Justice and a maximum of seven other judges.102 In fact, until 1952, there were only six judges on the Court. As a direct successor of the colonial Federal Court, the

Supreme Court was inaugurated in January 1950 with the six judges of the old court.

When in 1952 the Court had eight members for the first time, it was indeed able to

See R. Dhavan, Litigation Explosion in India (Bombay: Tripathi, 1986) at 53. 102 See Art. 124(1) ("There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.")

294 dispose of more cases than were instituted in that year. The cases carried over to the following year were 30 per cent less than the arrears of the previous years.103

But caseload increased rapidly. In 1956, 2337 cases were added to 1190 carried over from the previous year. By the following year the Court was expanded to 11 judges.1 Yet the arrears from that year were larger than the previous year's. The Indian

Law Commission, reporting in 1958, noted, "the effect of the recent increase in the strength of the [the] Supreme Court does not seem to have yet made itself felt on the pending file."105 In 1960, the Court was unable to hear as many as 2319 cases. The Court was further enlarged to fourteen judges.10 In 1977, the statute increasing the number to

18 specifically recited: "the Chief Justice has proposed that as the arrears of cases have mounted and are growing daily, the sanctioned strength of the Judges of the Supreme

Court may be increased."1 7 Yet the arrears at the end of the year were 18,215! In 1986 the Court was enlarged to its present size of 26. As the Court expanded, the size of panels dwindled. Today, a majority of cases are heard by two or three-member panels

("benches") selected by the chief justice. Constitutional cases are required to be decided by a minimum of five judges.

"Miscellaneous Petitions" (which are interlocutory applications of various kinds, e.g. application for bail) are not taken into account in this discussion. Information on the institution, disposal and arrears of cases is drawn from R. Dhavan, Justice on Trial: The Supreme Court Today (Allahabad: Wheeler Publishing, 1980) at 249 [hereinafter Dhavan, Justice on Trial]. 104 The Supreme Court (Number of Judges) Act, No. 45 of 1956, s. 2. 105 See Law Commission of India of India, Reform of Judicial Administration (Fourteenth Report) (New Delhi: Ministry of Law, 1958) at para 48 [hereinafter India Law Comm., Fourteenth Report]. 106 The Supreme Court (Number of Judges) Amendment Act, No. 17 of 1960, s. 2 107 The Supreme Court (Number of Judges) Amendment Act, No.48 of 1977, s. 2.

295 Although retiring justices, usually several every year, are not always promptly replaced, vacancies on the Court are mostly marginal. The main exception was 1964-

1968 and 1970, when the Court was depleted by as much as a fifth. Yet it could hardly be claimed that vacancies on the Court were necessarily the significant factor in the rapid growth of arrears. Between 1963 and 1971 there were two or three seats left unfilled annually. Yet the end of 1971 there were 8592 cases outstanding. Indeed, the following year, with the full complement of judges, the arrears grew to 10,846, and grew further still in 1973 to nearly 13,000.

The demand for Supreme Court decision-making in India is very considerable.

The Court is definitely unable to cope, even with the present number of judges and its small panel decision-making. The result has been inordinate delay. Cutting the flow of cases could compensate for this. Although access to the Court is very open, partly as a result of its original jurisdiction in fundamental rights cases (concurrent with the High

Courts) and very extensive appellate jurisdiction, it has never been able to muster the capacity to control its docket. As we shall see shortly, this has been in spite of a number of constitutional reforms providing formal capacity to do so.

It is also a problem of conflicting visions of the role of the Court.109 In 1974, the

Law Commission of India reported that the solution to the problem of caseload arrears does not necessarily lie in appointing more judges but in reducing the caseload.

108 The rapid turnover, as we observed in the preceding chapter, is a result of a recruitment policy that gives preferment to senior High Court judges, who typically have only a few years of service left before compulsory retirement age of sixty-five. See chapter 3, note 146 and accompanying text 109 Rajeev Dhavan has argued that the source of the difficulty is the Constituent Assembly. "There is a marked confusion about the kind of Court the makers of the Constitution wanted the Indian Supreme Court to be. .. .Nobody paused to think whether a small Court of the kind envisaged by the Assembly could

296 ... if the load of the calendar of the Supreme Court is rationally reduced and is confined to really important issues, the problem of growing arrears, which is disturbing the mind of the Supreme Court, may also be solved; and in the long run the number of the Supreme Court Judges may have to be conveniently and proportionately reduced.'10

Unfortunately, as a result of what it described as conflicting views on the role of

the highest court, the Commission was unable to recommend a means of decisively

cutting the flow of cases. It cited support as well as disapproval within the legal

community of radical restriction on cases that may be heard by the Supreme Court.111

The opposing view continued to insist that the solution "is to appoint large number of

Judges in the Supreme Court." That was 1974 when there were fourteen judges already

on the Court. Even with nearly double that number today the problem of arrears has not

gone away.

C. Intermediate Court of Appeal: Bottleneck or Filter?

Nigeria's present Court of Appeal was established in 1976.113 It sits in panels of three judges, except in constitutional cases where five judges are required. With the elimination

of appeals to the Privy Council in 1963, a single tier appeal system, comprising the

Supreme Court, replaced the former two-tier system (Federal Supreme Court-Privy

really perform all the intergrationistic, quasi-political and general adjudicatory functions that the Court was expected to perform. No consideration was given to the kind of work load problems the Court was going to have." See R. Dhavan, Justice on Trial, supra note at 103 at 25. For a critical review of the Constituent Assembly deliberation on the Court, see ibid, at 8-26. See also, R. Dhavan, The Supreme Court under Strain: The Challenge of Arrears (Bombay: Tripathi, 1978) at 1-25 [hereinafter Dhavan, The Supreme Court under Strain]; and Litigation Explosion, supra note 101 at 49-57. 110 See Law Commission of India, Structure and Jurisdiction of the Higher Judiciary (Fifty-Eight Report) (New Delhi, 1974) at 35 [hereinafter India Law Comm., Fifty-Eight Report] [emphasis added]. 111 Ibid, at 35-36. 112 Ibid, at 136. 113 Federal Court of Appeal Act, No. 43 of 1976.

297 Council).,,4As we indicated in Chapter 3, the Public Service Review Commission found this solution unsatisfactory.115 The system, it reported, whereby the Supreme Court took

"unrefined material direct from courts of first instance" had resulted in a situation where the Court "can rarely perform the true role of a final court of appeal, which is to deal with clear issues of law and to lay down principles of general application for the guidance of all lower courts."116 The Commission was very worried that the "Supreme Court is overloaded and seriously in arrears with its work."117 In recommending the establishment of an intermediate court of appeal, the Commission was also motivated by need to strictly control the caseload of the Supreme Court. "[W]e think there should be stringent limitations on the exercise of the second appeal so that the [final] court can confine itself to pronouncing on important issues of general importance."118

What was implemented, however, was less far-reaching. Nonetheless, since interposition of an intermediate court of appeal adds additional cost to demand for

Supreme Court decision-making, everything else being equal, it would negatively impact the number of cases appealed to the Supreme Court. It has indeed been suggested that a

Western Nigeria restored the two-tier system for that part of the country when it set up its own court of appeal in 1967 (discussed in chapter 3 §2). The impact of abolition of appeals to the Privy Council was in reality not very severe. Only an almost negligible ratio of Supreme Court decisions any way was appealed to the Privy Council. Of the nearly 1300 decisions of the Court between 1956 and 1963, only 36 appeals (.03 per cent) were taken to the Privy Council. But it must be admitted, this number, although over merely an eight-year period, constitute nearly 40 per cent of entire business from Nigeria before the Council between 1890 and 1963 (total of 95 appeals) (source: O. Chukura, ed., Privy CouncilJudgments: Opinions of the Judicial Committee of the Privy Council in Appeals from West Africa, 1841 to 1973 (Ibadan: Gillford & Co., 1981)). It is not clear how much the limited use of the Council was because its jurisdiction was mostly discretionary. Even that, however, does not explain why more constitutional cases did not go to the Council, as appeal as of right lay to London "in final decisions in any civil or criminal proceedings on questions as to the interpretation of [the federal] Constitution or the constitution of a Region": see the Independence Const. (1960), s. 114(l)(c). 115 See chapter 3 §2B. 116 See P.S.R.CReport, supra note 78 at para. 287. On the Commission, see supra, chapter 3, note 56. 117 Ibid, at para. 282.

298 former intermediate court of appeal, the Western State Court of Appeal has had precisely this effect on appeals from Western Nigeria to the Supreme Court.119 However, it is difficult to say whether the impact of the present Court of Appeal on the flow of cases to the Supreme Court has been equally significant. Several external factors may have intervened. Litigation activity in Nigeria, for example, is far greater today than, say, in the seventies. The volume of litigation is reflected in the size of the Court of Appeal.

Established with 22 judges, there are today over 60 judges distributed across ten circuit divisions. Caseload is fed by thirty-eight High Courts comprising about eight hundred judges. The High Court of Lagos State, Nigeria's commercial centre, has over 40 judges, with over 100,000 new cases are docketed annually.

The Court of Appeal naturally functions to regulate the flow of cases to the

Supreme Court. The impact of the Court of Appeal so far may be measured by again reviewing the figures provided in Table 4.1. While there was a marked decline in

Supreme Court decision-making in the ten years (1977-1987) immediately following establishment of the Court of Appeal, this is attributable, as we have already observed above, more to depletion of the Supreme Court bench at this time than to anything else.

As a result of the arrears accumulated during and after the period as well as the high number of freshly docketed cases, the hope of the Udoji Commission that "new appeals can be disposed of within a reasonable time of the records being received"120 remains illusory. However, the original framework proposed by the Commission remains very sound: the impact of the Court of Appeal on the caseload of the Supreme Court would be

118 Ibid, at 289.

299 effective only where the latter has a meaningful discretionary jurisdiction. To that issue

we must now turn.

D. Taking Gate-keeping Seriously: Agenda Transformation through Discretionary Jurisdiction

The conventional wisdom is that excessive workload impairs the capacity of a final court

of appeal to meaningfully discharge the vital responsibility of providing leadership in

development of legal policy. As the Canadian Bar Association reported on the Supreme

Court of Canada,

proper performance of this function of judicial leadership requires that the judges of the Supreme Court have adequate time for the full hearing of argument, for research, study, reading, consultation among themselves and the writing of full reasons for their decisions.121

By the mid 1970s, the strain of excessive caseload on the Supreme Court of

Nigeria was increasingly obvious. Even at the beginning of that decade Chief Justice

Kasunmu, "Supreme Court of Nigeria," supra note 10. 120 Ibid, at para. 282. 121 See CBA, "Caseload of the Supreme Court of Canada" supra note 85 at 1. See also the Freund Committee report on the U.S. Supreme Court: Any assessment of the Court's workload will be affected by the conception that is held of the Court's function in our judicial system and in our national life. We accept and underscore the traditional view that the Supreme Court is not simply another court of errors and appeals. Its role is a distinctive and essential one in our legal and constitutional order: to define and vindicate the rights guaranteed by the Constitution, to assure the uniformity of federal law, and to maintain the constitutional distribution of powers in our federal union. . .. The statistics of the Court's current workload, both in absolute terms and in the mounting trend, are impressive evidence that the conditions essential for the performance of the Court's mission do not exist. For an ordinary appellate court the burgeoning volume of cases would be staggering; for the Supreme Court the pressures of the docket are incompatible with the appropriate fulfillment of its historic and essential functions. See Federal Judicial Center Report of the Study Group on the Caseload of the Supreme Court (Washington, D.C.: Federal Judicial Center, 1972) at 1, 5.

300 Ademola described the situation as "impossible." This heavy workload, suggested

Kasunmu, forces the Court "to confine itself narrowly to the issues before it instead of utilizing the opportunity as a final court for clarifying the law, particularly in areas of uncertainty."123 As we have already seen, appeals as of right are the major source of the business of the Court and therefore constitute a big drain on its resources. As the

Canadian Supreme Court scholar, Paul Weiler rightly observed, "when appeals lie as a matter of right rather than with judicial permission, we give private litigants the power to allocate the scarce time of our Supreme Court."124

In 1974, the Nigerian Public Service Review Commission reported that the

Supreme Court of Nigeria was "overloaded and seriously in arrears with its work."125 As a result of the kind of business it was saddled with, the Commission found, the Court

"can rarely perform the true role of a final court of appeal, which is to deal with clear issues of law and to lay down principles of general application."126 It recommended that the caseload of the Supreme Court of Nigeria should "be kept within manageable proportions...by restricting the classes of appeal which can be brought and by requiring leave to appeal to be obtained in every case."127 It was clearly expected that as a result the

Court would be able to expand its policy-making capacity. The Commission's recommendations were the blueprint for revision of the jurisdiction of the Supreme Court in 1976. We have already discussed this development in the last chapter (§2b). In

122 Quoted in Kasunmu, "Supreme Court of Nigeria," supra note 10 at 24. 123 Ibid, at 28 124 P. Weiler, In the Last Resort: A Critical Study of the Supreme Court of Canada (Toronto: Methuen, 1974) at 13 125 P.S.R.C. Report, supra note 78 at para. 282. 126 Ibid, at para. 287.

301 summary, the Court's original jurisdiction in inter-governmental cases was completely eliminated (and was now vested instead in the new Court of Appeal) and access to

Supreme Court was scaled down for most categories of appeals. The reform implemented three principles. Firstly, a matter already appealed twice cannot be further appealed.

Except in very exceptional circumstances,128 matters decided by the Court of Appeal as a second appeal necessarily terminate there. Second was a reduction of mandatory appeals.

Appeals as of right to the Supreme Court were limited to a few categories, and almost entirely on constitutional grounds. The Commission had however recommended the complete eradication of such cases from the jurisdiction of the Court. Nonetheless, there was only one non-constitutional matter included in the reformed mandatory appeals regime, and it is not highly objectionable. The Court was, for example, given power to review a sentence of death imposed or affirmed by the Court of Appeal.129 Thirdly, all other matters were appealable to the Supreme Court by leave of that Court only130 or, in most cases, of the Court of Appeal.131

No legal obligation was explicitly imposed on the Court regarding the kinds of cases it could select. A principal shortcoming of the 1976 reform was that it did not specifically commit to the Commission's recommendation that the Court should "confine

Ibid, at para. 298 [emphasis added]. 128 However, no appeal shall lie to the Supreme Court from any decision of the Court of Appeal on appeal to that court from a decision of the High Court sitting otherwise than at first instance unless the decision was in respect of a criminal proceeding and "in respect of that decision the Attorney General of the Federation has given a certificate that the decision of the Court of Appeal involves a point of law of exceptional public importance and it is desirable in the public interest that a further appeal to the Supreme Court should be brought." See Nigeria Const., s. 117(5), as amended by Constitution (Amendment) (No. 2) Act, No. 42 of 1976, s. 1(2). (The text is reproduced supra, chapter 3 at note 68.) 129 Ibid, at s. 117(2). (The text is reproduced supra, chapter 3 at note 65.) 130 Ibid. s. 117(4) 131 Ibid. s. 117(3) (The text is reproduced supra, chapter 3 at note 67.)

302 itself to pronouncing on important issues of general concern." Nonetheless the

flexibility of the statutory language would perhaps allow the Court itself to progressively

develop a policy that is responsive to its needs. Unfortunately, it is impossible to assess

its impact.133 The reform was rolled back after only the third year. However, comparison

of the experience of some commonwealth courts may indicate the potential significance

of discretionary jurisdiction. The experience of the Supreme Court of Canada is

instructive. Thirty years ago, it was granted discretion to accept cases that in its opinion

involve questions of public importance or which involve important issues of law or

mixed law and fact.134 As a result, although some mandatory jurisdiction remains, it soon

became a minor source of the work of the Court.135 The Court aggressively prunes its

docket. With a predisposition to deny leave, it, in general, accepts roughly only 20 per cent of leave applications.136 In order to preserve the malleability of "public importance," and hence enjoy "complete flexibility in allocating its scarce judicial resources,"1 the

Court does not give reasons for granting or refusing leave.13 Discretionary jurisdiction

132 See P.S.R.C Report, supra note 78 at para. 289. 133 The output of the Court under the reformed jurisdiction (1977-79) was small (see Table 4.1). But this was not a result of impact of discretionary jurisdiction. 134 Supreme Court Act, R.S.C. 1970, c. S-19, s. 41(1), as amended by S.C. 1974-75-76, c. 18, s. 5. For a discussion, see S.I. Bushnell, "Leave to Appeal Applications to the Supreme Court of Canada: A Matter of Public Importance" (1982) 3 Supreme Court L.R. 479 [hereinafter Bushnell, "Leave to Appeal"]; and Russell, Judiciary in Canada, supra note 4 at 344-49. 135 See. Bushnell, ibid, at 494-98. 136 See R.B. Flemming & G.S. Krutz, "Selecting Appeals for Judicial Review in Canada: A Replication and Multivariate Test of American Hypotheses" (2002) 64 J. Politics 232 at 241 [hereinafter Flemming & Krutz, "Selecting Appeals in Canada"]. See also, note 46 supra (leave applications in Charter cases). 137 Quoted in B.A. Crane & H.S. Brown, Supreme Court of Canada Practice (Scarborough, Ont: Carswell, 1998) at 24. 138 The Canadian Bar Association Committee on the Court's workload recommended that "in some instances the judges publish reasons for granting or refusing leave, so that some precedents to guide litigants and lawyers would be on the record." See CBA, "Caseload of the Supreme Court of Canada," supra note 85 at 14. One consequence of the present practice of not giving reasons is that there are no

303 fundamentally reenergized the Court and is one of the principal factors in the rise in its

prestige from the mid 1970s. It has enabled the Court not only to cut down on number of

cases decided annually139 but to concentrate its resources on policy making. Indeed, as

authoritative criteria of how the Court exercises its discretion to grant or refuse leave, although certain considerations have been extrapolated from the practice of the Court. See, e.g., Bushnell, Bushnell, "Leave to Appeal," supra note 134 at 510-39 ("Criteria for the Granting of Leave"). The late Justice Sopinka famously stated the following as factors that make "a prospective appeal stand a better chance of being granted leave to appeal to the Supreme Court": (a) a novel constitutional issue; (b) the interpretation or application of a significant federal statute of general application; (c) the interpretation or application of a provincial statute with corresponding similar legislation in other provinces; (d) an issue in respect of which there are conflicting decisions in the provincial courts of appeal; (e) an issue which requires revisitation by the Supreme Court on an important question of law. See J. Sopinka & M.A. Gelowitz, The Conduct of an Appeal 2nd ed. (Toronto: Butterworths, 2000) at 235. Roy Flemming has remarked, Until fairly recently, the Court offered the clerks little advice about how to review leave applications. The clerks were as much in the dark about the meanings of "public importance" as the attorneys filing applications for leave. In 1994, Justice Sopinka started informal seminars during the orientation of new clerks in which he explained to them what to look for in applications. Soon afterward, checklists were tacked on the clerks' cubicles as reminders of the criteria. New clerks learned from older clerks as they left the Court what standards they should apply. But, as former clerks acknowledged, putting meat on the bare bones of the "public importance" criterion remained an uncertain task. See R.B. Flemming, "Processing Appeals for Judicial Review: The Institutions of Agenda Setting in the Supreme Courts of Canada and the United States" in H. Mellon & M. Westmacott, eds., Political Dispute and Judicial Review: Assessing the Work of the Supreme Court of Canada (Scarborough, Ont.: Nelson, 2000) 40 at 54. In comparison, although Rule 10 of the Rules of the United States Supreme Court actually specifies "considerations governing review on certiorari," it is stated explicitly that the grounds itemized therein are "neither controlling nor fully measuring of the reasons the Court considers." See http://www.supremecourtus.gov./ctrules/ctrules.html (last visited 22 June 2002). See generally H.W. Perry, Deciding to Decide: Agenda Setting in the United States Supreme Court (Cambridge, Mass.: Harvard University Press, 1991); and D.M. O'Brien, Storm Center: The Supreme Court in American Politics 6th ed. (New York: W.W. Norton, 2003) at 164-233. For a summary of speculations on considerations relevant to grant of certiorari, see S. Brenner, "Granting Certiorari by the United States Supreme Court: An Overview of the Social Science Studies" (2000) 92 Law Library J. 193. The classic account of the background to reform of the discretionary jurisdiction of that Court (the Judiciary Act, 1925) and its immediate impact on the Court's business is F. Frankfurter & J.M. Landis, The Business of the Supreme Court: A Study in the FederalJudicial System (New York: Macmillan, 1928) at 255-98. 139 See Monahan, Politics and the Constitution, supra note 32 at c. 2.

304 Russell put it, "selecting the cases it will hear is an important policy-making function of the Court."140

Discretionary jurisdiction has not had a similar impact in the Supreme Court of

India. That court has been unable to apply this power to conserve its resources or to concentrate them on policy making. The Indian experience merits extended discussion

(below), because it is clear that formal discretionary jurisdiction does not necessarily translate to active control of caseload by a court. A persistence of an institutional orientation of error correction as a primary function of a final court of appeal will largely neutralize the utility of discretionary discretion as a tool of caseload management. This could well have been the fate of the Supreme Court of Nigeria if its experiment with enhanced discretionary jurisdiction had run a longer course.

Excursus: Caseload Crisis and the Paralysis of Discretionary Jurisdiction in the Indian Supreme Court

With arrears going into seven figures, [Indian Supreme Court Justices] are moved to tears of envy when they hear about the "unconscionable" caseload of the American Supreme Court Justice!141

The actual function of discretionary jurisdiction is very closely tied to the institutional perspective of a court's role. The experience of the Indian Supreme Court illustrates how an institutional orientation of a primary error-correcting role can severely compromise discretionary jurisdiction as a selective agenda-building and caseload control mechanism. The Indian Court, writes Vijay Gupta, "has been unable to evolve an

140 Russell, Judiciary in Canada, supra note 4 at 346. 141 U. Baxi, '"A Known but an Indifferent Judge': Situating Ronald Dworkin in Contemporary Indian Jurisprudence" (2003) 1 Int'l J. Const. L. 557 at 565.

305 institutional criterion for allowing appeals under its special leave jurisdiction consequently opening a flood gate of litigation."142 Roughly 65 per cent of its caseload of tens of thousands annually is a result of the Court accepting to review 3 or 4 of every 10 applications for special leave to appeal. If this number were cut by, say 90 or 95 per cent, the caseload would reduce by half. The apparently counterintuitive behaviour of generously accepting cases for review is accounted for by the well-institutionalized role expectations of the Supreme Court in the Indian polity.

Like the Nigerian Supreme Court, the Indian Court is a typical Commonwealth mixed-jurisdiction final court of appeal. As the most able investigator of its caseload crisis, Rajeev Dhavan, put it, its "jurisdiction covers all kinds of cases. The Court has to deal with contracts and leases, criminal cases and civil cases, income tax cases and excise cases, administrative law cases and constitutional cases. The sweep of the law that the

Supreme Court has to deal with is quite enormous."143 The flow of cases to the Court, not surprisingly, is heavy. "Admission" matters (applications for special review)144 alone - a preliminary hearing to determine cases to be granted review on the merits - take up two full days every week. Although it has significant original jurisdiction,145 especially the

Article 32 fundamental rights writ jurisdiction, appellate jurisdiction is the source of 85

See Gupta, Supreme Court of India, supra note 1 at 87. The Court, it has also been observed, "has never given any indication of the kind of cases that it would admit." See Dhavan, The Supreme Court under Strain, supra note 109 at 56. 143 Dhavan, Justice on Trial, supra note 103 at 91. 144 "Admission matters" technically are applications for special leave of the Supreme Court to appeal under Art. 136 of the Constitution. But the category also includes preliminary review of Article 132 writ petitions for enforcement of fundamental rights. For an analysis of the rate at which the Court admits these cases for merit review, see Dhavan, The Supreme Court under Strain, supra note 109 at 54-59. 145 Const, of India, arts. 32 (fundamental rights) and 131 (federalism jurisdiction).

306 per cent of the Court's docket annually. It is control of appeals therefore that promises

a truly decisive impact on the workload of the Court.

The two main sources of the appellate docket are (a) cases certified by a High

Court as fit for appeal to the Supreme Court147 and (b) appeals by special leave of the

Supreme Court.148 Originally, a certificate of the High Court could be obtained where the value of the subject-matter of the suit was at least twenty thousand rupees. In 1971, the

Law Commission of India reported on the revision of the civil appellate jurisdiction of the Supreme Court,149 and recommended, two years before a similar recommendation in

Canada,150 that it was inappropriate that monetary value should be a basis for determining

appeals to the Supreme Court.

The Supreme Court, in our opinion, should be troubled only if the High Court finds itself in great difficulty in deciding a case and the question of law is of great importance. As we have said, such occasions would and should be few. .. .It is, therefore, proper that all ordinary litigation should end in the High Court, and only exceptional circumstances should justify recourse to the Supreme Court. We are not persuaded that the money value of the subject-matter of litigation can, in modern times, be called an exceptional circumstance.151

See Gupta, Supreme Court of India, supra note 1 at 79, 85. 147 See Indian Constitution, Arts. 132 (constitutional questions) and 133 (ordinary civil matters). 148 Ibid., Art. 136. 149 See Law Commission of India, The Appellate Jurisdiction of the Supreme Court in Civil Matters (Forty-fourth Report) (New Delhi: Ministry of Law, 1972) [hereinafter Indian Law Comm., Forty-fourth Report] and Law Commission of India, Civil Appeals to the Supreme Court on a Certificate of Fitness (Forty-fifth Report) (New Delhi: Ministry of Law & Justice, 1972) [hereinafter India Law Comm., Forty- fifth Report]. 150 See CBA, "Caseload of the Supreme Court of Canada," supra note 85 at 9. 151 See India Law Comm., Forty-fourth Report, supra note 149 at paras. 14-15 [emphasis added]. This was confirmed by its Forty-fifth Report, where it is stated: "In the first place, the grant of a certificate should be ruled out where the questions involved are not of law. So far as questions of fact are concerned, the judgment, decree or final order of the High Court should be final - except, of course, in those exceptional cases where the Supreme Court chooses to intervene under article 136. Secondly, it is not enough that a question of law is involved. It should also be a condition precedent to the grant of a certificate of fitness that the question of law must be of a nature or magnitude which justifies recourse to

307 Although this recommendation to remove the money criterion was promptly implemented, the caseload crisis did not abate. This is because appeals certified by high courts are a minority of the Supreme Court's appellate docket. 76 per cent of all appeals, or indeed 65 per cent of all cases, were special leave appeals. The Court has power "ar its discretion [to] grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India." Unlike leave by certificate of fitness, which in practice the High

1 ^3 Courts were reticent in granting, the Supreme Court generously grants special leave.

Indeed, it grants leave even where a certificate had already been refused in the lower court. A statistical survey by Dhavan shows that the Court accepted 30-40 per cent of all special leave applications for review on the merits.154

This volume clearly exceeds its capacity. The number of sitting judges has increased by over three times in thirty years in a vain effort to keep pace with caseload.

Why then, it may be wondered, has the Court been unable to take seriously the easily expedient measure of drastically reducing the volume of cases accepted for review under the highest judicial organ of the country." See India Law Comm., Forty-fifth Report, supra note 149 at paras. 21-22 [emphasis added]. 152 See Gupta, Supreme Court of India, supra note 1 at 78, 81. 153 Ibid; at 83, who however noted, "at the same time, the [Supreme] Court seems to have taken a rather skeptical view of the High Court's powers and their ability to finally determine the issues which are contested before them." 154 Dhavan, Supreme Court under Strain supra note 109 at 56. Over a period of seven and a half years, the Court admitted for merit review 9706 of 25,524 civil cases and 2494 of 7806 criminal cases. Despite this, Dhavan concludes that the Court has "not been very liberal about granting special leave." In contrast, Roy Flemming and Glen Krutz have reported that the Supreme Court of Canada grants only roughly one of every five applications for leave to appeal. See Flemming & Krutz, "Selecting Appeals in Canada," supra note 137. The U.S. Supreme Court, on the other hand, in 2001, granted review to merely .04 per cent of paid and .001 per cent of unpaid applications respectively. See Epstein, et al., Supreme Court Compendium, supra note 79 at 71 (Table 2-6).

308 Article 136 by, for example, restricting review to cases presenting substantial questions

of law of general public importance? Although this element has recently been

incorporated in the certificate of fitness regime,155 it is in practice mechanically applied to

correct errors of lower courts. The Indian legal community continues to strongly favour

the error-correcting function of the Supreme Court. In 1974, the Law Commission of

India reported an overwhelmingly negative response of the legal profession to the

question: "Would you favour any modification as to the scope of appeal under article 136

of the Constitution, against judgments of High Courts?"

Opinion received by us on this question reveals strong opposition to curtailment of this jurisdiction of the Supreme Court. ...Many of the replies stress the desirability of preserving the existing wide discretion of the Supreme Court, and point out that it may be assumed that the discretion is exercised sparingly and only in cases of exceptional nature. The overwhelming majority of the replies on the Question are against the imposition of limitations suggested in the query. In particular, it may be stated that some Judges of the Supreme Court, in a written reply on our Questionnaire, do not favour any modification in the scope of appeal under article 136.156

The judges' response reflects a long-standing perception within the Supreme

Court. Very early in the life of the Court, the function of Article 136 as a means of

facilitating the error-correcting function of the Court was declared plainly.

1 See India Const., Art. 133(1): "An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies (a) that the case involves a substantial question of law of general importance; and (b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court." 156 See India Law Comm., Fifty-Eight Report, supra note 110 at 39. The Commission, therefore, did not recommend any modification, even though it had stated elsewhere in the Report that the "accumulation of large arrears must be regarded as a relevant consideration in revising the structure of the higher judiciary." Ibid., at 30. An earlier Commission defended the error-correction function of this jurisdiction: "this extensive discretionary jurisdiction conferred on the Supreme Court has, on the whole, been a most

309 It is not possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested in this Court by the constitutional provision made in article 136. ...It is, however, plain that when the Court reaches the conclusion that a person has been dealt with arbitrarily or that a court or tribunal within the territory of India has not given a fair deal to a litigant, then no technical huddles of any kind like the finality of finding of facts or otherwise can stand in the way of the exercise of this power because the whole intent and purpose of this Article is that it is the duty of the Court to see that injustice is not perpetuated or perpetrated by decisions of courts and tribunals because certain laws have made the decision of these courts or tribunals final and conclusive.157

A strong error-correcting role expectation has effectively denied the Indian

Supreme Court the opportunity to use discretionary jurisdiction to rationally manage its

caseload and enhance its policy profile. Perhaps there would be less pressure on the Court

to perform an error-correcting role if there was an intermediate court of appeal. But the

Law Commission's proposal to establish a Zonal (circuit) Courts of Appeal was not

favoured by the legal profession.

salutary provision which has led to the correction of grave injustice in many cases." See India Law Coram., Fourteenth Report, supra note 105 at para. 30. 157 Dhakeswari Cotton Mills v. Commissioner of Income Tax, West Bengal A.I.R. 1955 S.C. 65 at 69 (per Mahajan, C.J.) [emphasis added]. 158 See India Law Comm., Fifty-Eight Report, supra note 110 at 104-108.

310 III. ACCESSING THE SUPREME COURT AGENDA: THE COURT AND LEGAL MOBILIZATION

A. Constituencies of the Supreme Court Nearly half of the civil cases decided by the Supreme Court of Nigeria are land and chieftaincy disputes. Commercial (including mortgages and releases) litigators account for only a third of civil cases. On the other hand, trade unions and political/ civil society groups almost never use the Court. Except for a dramatic growth of chieftaincy cases since the 1980s, the distribution of patrons of the Supreme Court of Nigeria has been remarkably stable. Chieftaincy litigation accounts for 4 per cent of the Court's decisions between 1963 and 1997. But during the last fifteen years of that period (1983-1997), the ratio rises to 8 per cent. (79 cases). The Court decided only five chieftaincy cases in the two decades after 1963 because the subject was put beyond judicial review by the

Constitution that year.160 The removal of this disqualification by the Constitution of 1979 opened the Court to chieftaincy litigators again.

Chieftaincy and land litigators share a similar background and represent the core of pre-industrial society. The dominance of the business of the Supreme Court by these

Alabi, Supreme Court and Political System, supra note 20 at 176. 160 See Republican Constitution 1963, s. 22 (1): In the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality. Provided that nothing in this subsection shall invalidate any law by reason only that it confers on any person or authority power to determine — (a) questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person; or (b) chieftaincy questions [emphasis added] This proviso provided constitutional cover for chieftaincy laws applicable in various parts of the federation that specifically excluded judicial review of chieftaincy disputes.

311 litigators ensures that the traditional elements of the Nigerian society surpass every other

sector in influence on the agenda of the Supreme Court.

This dominance of the traditional elements contrasts sharply with the ascendancy of "postmaterialist," non-occupational citizen groups — feminists, environmentalists, and

social, peace, and minority rights activists, etc — in litigating public policy issues in the

Canadian Supreme Court. These non-territorial, post-industrial social movements are identified as the arrowhead of what F. Morton and Rainer Knopff call the "Court Party" or the party of post-materialism. Morton and Knopff assess the impact of the new social movements thus:

Without a Court Party, the Charter [of Rights and Freedoms] and the Supreme Court would not have attained their current prominence. Postmaterialism has provided the political buoyancy that breathed life and energy into the Charter, lifting it out of the statute books and making it a 1 (O force in the mainstream political process.

Gregory Hein attributes the propensity of Canadian interest groups to use court challenges since the 1980s to three primary "stable characteristics:" expanded legal resources; collective identities energized by rights; and normative visions that demand Although interest group litigation has become an established form of collective action in Canada and the United States and elsewhere, legal mobilization as a strategy of social movements is contested. The present study does not contribute anything to that debate. Nor is any attempt made here to explore legal mobilization strategies. Michael McCann provides a balanced perspective on use of legal strategies by social movements. See M.W. McCann, "Legal Mobilization and Social Reform Movements: Notes on Theory and its Application" (1991) 11 Stud. L. Pol. & Soc'y 225 ("litigation alone rarely advances significant social change, but at the same time...legal rights advocacy can in some circumstances provide a useful resource for social movement building and strategic political action"). See also B. Sheldrick, Perils and Possibilities: Social Activism and the Law (Halifax: Fernwood: 2004) 10-33. In this chapter and elsewhere in this work, we do not distinguish interest groups in a technical sense, groups that advance the interests of members, from cause groups (such as peace or environmental activists). 162 F.L. Morton & R. Knopff, "The Supreme Court as the Vanguard of the Intelligentsia: The Charter Movement as Postmaterialist Politics" (Occasional Paper, Research Unit for Socio-Legal Studies, Univ. of Calgary, 1992) at 19. See also Morton & Knopff, Charter Revolution and Court Party, supra note 54 at 77- 80.

312 judicial activism. Hein argues that we cannot understand why groups litigate simply by

looking at the distribution of legal resources.164 This is undoubtedly correct. However, it

is equally true that weak legal resources are a strong disincentive to use litigation

strategies. Thus, non-friendly reception of rights litigation by courts, such as, for example, requirement of strict standing, discourage use of courts by Nigerian interests groups. In section I of this chapter, we saw that this is indeed a primary factor in the

limited use of rights litigation in Nigeria. Rights advocacy and citizen groups are equally constrained by poor funding. We find, for instance, that the most successful legal advocacy organization in Nigeria, the Human Rights Law Service (HURILAWS) have only been before the Supreme Court twice. Given the heightened level of social activism in Nigeria from the 1980s, there is little doubt that a more friendly judicial reception of rights claims and public interest litigation would have made the use of legal strategies more attractive if not compelling.165

Hein, "Interest Group Litigation," supra note 63 at 8, 16-21. However, groups lacking the stable characteristics may also be attracted to litigation strategies because of what Hein calls "changing circumstances." Thus, they may be attracted to court by favourable rulings or where they seek to counter some immediate threat or because of diminishing political resources. See ibid, at 21-24. For a survey and analysis of interest group advocacy and litigation before and under the Canadian Charter of Rights and Freedoms, see K. Roach, "The Role of Litigation and the Charter in Interest Advocacy" in F.L. Seidle, ed., Equity & Community: The Charter, Interest Advocacy and Representation (Montreal: Institute for Research on Public Policy, 1993) 159-188. 164 Ibid, at 18. 165 In India, poorly funded individuals and groups flooded courts with cases when access was liberalized and judges were increasingly sympathetic to social activism. See infra, notes 205-207 and accompanying text. Uprendra Baxi classifies the new litigators as socio-legal entrepreneurs, social action groups, organizations of rural poor (ORPs), and participatory organization of rural poor (PORPs). See Baxi, "Taking Suffering Seriously: Social Litigation in the Supreme Court of India" in R. Dhavan, R. Sudarshan & S. Khurshid, eds., Judges and the Judicial Power: Essays in Honour of Justice V.R. Krishna Iyer (London: Sweet & Maxwell, 1985) 289 at 296, 304. However, Charles Epp argues that the preponderance of grassroots or "demand" groups litigators is unhealthy. According to him, the Indian groups "provide the occasion for ad hoc litigation, but they provide no sustained support for long-term, systematic litigation strategies." See Epp, Rights Revolution, supra note 2 at 98.

313 Although they dominate the agenda of the Supreme Court, the traditional

elements litigators are not primarily seekers of policy change. When they do, they are

likely to challenge progressive policies, such as land reform. However, as they are almost

always one-shot litigators, like other constituencies of the Court, they lack the essential

strategic leverage to litigate policy.166 Similarly, criminal appeals, the single largest

component of the Court's business, yield very little policy challenges. Although policy

1 £-t change is not usually a primary objective of criminal defendants, the large criminal

docket could perhaps have yielded more constitutional challenges than has in fact been

the case. Unfortunately, as we explained in section I, criminal defendants generally lack

adequate funding and competent legal services. This testifies to weakness of the legal

infrastructure supporting rights litigation. As we show in the remainder of this chapter,

In the 1970s, Marc Galanter provided a much-discussed typology of parties in litigation, in which he demonstrated the strategic advantage of repeat players (RP), such as government or a corporation, who are engaged in many similar litigation over time, over one-shotters (OS), who only have occasional recourse to courts (OS and RP are ideal types). Several reasons are given for this presumed disparity. RPs have lower start-up costs for any case (economies of scale), develop expertise and have access to higher quality legal services. Unlike an OS, who usually has high stakes in the immediate outcome of a case (tangible gain or loss), RPs take a long-term view of the impact of a case, and are therefore more likely to "play for rules." Thus, while RPs have the capacity and the objective to use test-case strategy to obtain rule-change, "litigation deliberately designed to procure rule change is an unthinkable undertaking for an OS." One of the means suggested by Galanter for equalization of parties is by aggregating OSs into RPs by organizing them into "coherent groups that have the ability to act in a coordinated fashion, play long-run strategies, [and] benefit from high-grade legal services." An organized group, he argues, "is not only better to secure favourable rule changes, in courts and elsewhere, but is better able to see that good rules are implemented. It can expend resources on surveillance, monitoring, threats, or litigation that would be uneconomic for an OS. Such new units would in effect be RPs. [In]...opposing RPs...[n]either would enjoy the strategic advantage of RPs over OSs." See M. Galanter, "Why the 'Haves' Come Out Ahead: Speculations on the Limits of Legal Change" (1974) 9 Law & Soc'y Rev. 95 at 97-114, 136, 141, and 143 respectively. 167 Even in Canada, where criminal appeals are a major source of Charter challenges, it is noted, although "such individuals certainly try to get the court to change criminal justice policy.. .they do so as a means to their objective: going free. Policy change may be a by-product of their court argument, but such change is not their main concern." See Morton & Knopff, Charter Revolution and Court Party, supra note 54 at 85.

314 low in financial, organizational, and legal resources, interest and rights advocacy organizations have almost no access to the Supreme Court.

B. HURILAWS' Strategic Impact Litigation Project

The limited use of the Supreme Court by rights and interests advocacy groups weakens the Court as a policy maker, because it is denied sufficient opportunity to intervene in public policy. High policy issues are rarely brought to court. As we shall see in the next chapter, this limited experience in policy decision-making leaves the Court with little opportunity to hone its skills in rights adjudication. A more serious consequence, however, is the loss of vital institutional support. As Tom Ginsburg explains,

rights cases offer great legitimacy benefits to the court. Although the court will be deciding against a hypothetical majority represented by the government, the court provides a victory to an interest group likely to have intensely held preferences. Populism can provide a bulwark against counterattack; a court can cultivate it by broadening standing and encouraging litigation by a range of rights- seeking interest groups.168

In the 1980s and 90s, the Nigerian human rights-advocacy movement focussed primarily on non-litigation activities: campaign, documentation, research, and advocacy.

While the movement developed considerable expertise in investigating, monitoring, and reporting human rights abuse, the same can hardly be said of skilful use of legal strategies. Although lawyers were among the leaders of the new rights and cause activists, strategic litigation was not an articulated objective of any group. The situation has been summarized as follows:

Ginsburg, Constitutional Courts, supra note 27 at 88.

315 Some NGOs employed litigation as a tool for advancing their respective causes from the death penalty to gender equity, but this was largely on an ad hoc basis. Experience has shown that while conventional human rights organizations were well suited to investigation and reporting on human rights violations, they do not necessarily have the time, resources or capacity to effectively engage in public interest litigation.169

A deliberate effort to fill the apparent void was actualized with the founding in

1997 of the Human Rights Law Service (HURILAWS), an independent, non-profit public interest and human rights legal services provider. For the first time in Nigeria, there was an organization whose central objective was the advancement of human rights through organized and consistent public interest litigation.170 Unlike existing human rights NGOs,

HURILAWS was dedicated to public interest and human rights litigation, legislative advocacy, and legal assistance. Its self-advertised objectives are:

• Establishing human rights standards and advancing the application of human rights norms through high impact test cases; • Promoting legal and judicial reform through legislative advocacy; • Advancing the application of international legal instruments on human rights in Nigerian law; • Advancing the application of social and economic rights in Nigerian law through legislative advocacy and constitutional litigation; • Facilitating collaborations with international NGOs to promote good governance through law in Africa; and • Undertaking any other programmes, activities and initiatives that can secure and enhance the above objectives.

The organization's primary lawyering strategy is test or impact litigation. Its central litigation programme is the Strategic Impact Litigation (SIL) Project, "a broad based test case litigation programme to bring selected cases before the superior courts to establish

See http://www.hurilaws.org/profile.htm (last visited 15 March 2005).

316 and advance judicial norms on human rights in Nigerian law." The core legal team had previously been actively involved with public interest litigation undertaken by other organizations.

The primary focus of the SIL programme is the death penalty and prisoner rights.

Immediately after its founding, HURILAWS launched a constitutional challenge of the death penalty. The test case was a prisoner on the death row for eleven years. The court was asked to declare unconstitutional a death sentence where there is prolonged detention pending execution. The present case followed a failed challenge before the Supreme

Court in 1994. (The Court declined jurisdiction hear the issue in respect of the same prisoner.172) The new round of litigation suffered initial setback in the High Court, but the

Court of Appeal found that the challenge was proper, and directed the matter to go to trial before another judge. Trial finally commenced in August 1997. After repeated delays, the case was rendered moot by the January 2000 Presidential amnesty for death row prisoners, including the prisoner in this case.174

During the same period, HURILAWS were involved in two other death penalty cases before the Supreme Court to test its constitutionality. In these other cases, the Court granted leave for a constitutional challenge of mandatory capital punishment for murder.175 Although like the prisoners in the death row challenge, this prisoner was also

Ibid. Ibid. 172 Ogugu v. State [1994] 9 NWLR (Pt. 366) 1. See supra notes 66-76 and accompanying text. 173 Peter Nemi v. Attorney General of Lagos State [1996] 6 NWLR (Pt. 452) 42 (however, for the first time in Nigeria, the court accepted in principle the death row phenomenon challenge). 174 See HURILAWS, "Death Penalty Project," supra note 76. 175 Kalu v. State [1998] 13 NWLR 531; and Azeez Okoro v. State [1998] 13 NWLR 181. Identical constitutional issues were raised, and both cases were argued on the same day. Counsel agreed that the Court's determination of constitutionality of the death penalty in the former would also apply to the latter.

317 ultimately granted amnesty, the final decision of the Court, sustaining constitutionality

of the death penalty, was a major set back for death penalty abolition movement in

Nigeria. 177

The termination of the death penalty litigation marked the end of HURILAWS' high profile rights litigation. After nearly one decade after its founding, the litigation portfolio of the SIL project remains very slim. For an organization committed to a primary strategy of test or impact litigation, the capacity of HURILAWS to launch or

support sustained rights litigation is small. But the use of litigation strategies by other human rights organizations in Nigeria is on an even smaller scale, and is far less effective.

The capacity of an organization to use courts depends substantially on the availability of resources.178 The resources of HURILAWS are very limited. In the first

Therefore, following dismissal of the constitutional challenge in Kalu, the Court did not find it necessary to discuss that issue in Okoro. See [1998] 13 NWLR 181, 211. 176 See HURILAWS, Annual Report and Accounts, 2000 (Lagos: Human Rights Law Service, 2001) at 16. 177 In 2002, HURILAWS instituted the Nigerian Coalition on the Death Penalty (NCDPA) and the Nigerian Moratorium Campaign Network (NMCN) to pursue "the global abolitionist movement and work towards the abolition of the death penalty in Nigeria," and to campaign for death penalty moratorium respectively. Projected strategies include use of test cases to "challenge the issue of the death penalty in Nigeria under international instruments." Very significantly, the policy paper specifically indicates, "the test cases will be litigated up to the Supreme Court of Nigeria to help expose the innate problems in the application of the death penalty in Nigeria, and to get the death penalty executions declared unconstitutional." See HURILAWS, "Report of Proceedings of a Press Conference of the Nigerian Coalition on the Death Penalty Abolition, and Moratorium Campaign, held in Lagos on Tuesday, October 8, 2002," online: (date accessed: 15 March 2005). By mid 2005, no legal challenge had been initiated. However, it is hoped, the impact of the present limited collaborative enterprise could also influence HURILAWS to put its Strategic Litigation Programme under the management of a coalition of rights and cause advocacy groups, rights activists, trade unions, and so on. The example of the Legal Resources Foundation of Zimbabwe (LRF) is very instructive. Its Test case/ Public Interest programme is managed by a Test Case Committee, a coalition of human rights NGOs, headed by the LRF. (After a thorough review of the programme in 2004, the LRF proposed that the establishment of an in-house test case litigation unit was more cost efficient. See LRF Annual Report 2004. Available online: http://www.lrf.co.zw/Documents/LRF%20Annual%20Report2004.rtf)

318 place, most of legal work is undertaken by a small team associated with the law firm of

Agbakoba & company, whose principal partner is also founder and senior counsel of the

organization. In 2003, the legal team officially comprised only two young staff lawyers

1VQ and a legal intern. Secondly, the organization is completely foreign donor-funded.

Funding is usually sought for specific projects, and therefore may be the most important factor determining the scope and timing of a particular litigation campaign.180 For

instance, the exclusive funder of the Death Penalty Project was the Norwegian Human

Rights Fund, which provided $US 11,500.00. The final report was issued in January

See K.L. Scheppele & J.L. Walker, "The Litigation Strategies of Interest Groups" in J.L. Walker, Mobilizing Interest Groups in America: Patrons, Professions, and Social Movements (Ann Arbor: The University of Michigan Press, 1991) 157 at 181 ("Organizations must posses substantial resources in order to make use of the courts and they need to be willing to fight their battles over the long haul to make protracted court effort worthwhile"). See also Epp, Rights Revolution, supra note 2; C. Harlow & R. Rawlings, Pressure Through Law (London/ New York: Routledge, 1992) 299-305 (discussing "predictors of success" of interest group litigation). 179 See http://www.hurilaws.org/team.htm (date accessed: 14 December 2003) 180 This problematic funding of Nigerian human rights NGOs is examined elsewhere. See O. Okafor, Legitimizing Human Rights NGOs: Lessons from Nigeria (Trenton, N.J.: Africa World Press, 2005) c. 5 ("Between the Piper and the Tune: The Structure of Nigerian Human Rights NGO Funding Regime"). In the wider African context, see M. Mutua, "African Human Rights Organizations: Questions of Context and Legitimacy" in P.T. Zeleza & P.J. McConnaughay, eds., Human Rights, the Rule of Law, and Development in Africa (Philadelphia: University of Pennsylvania Press, 2004) 191. The dependence of human rights NGOs on foreign funding is widespread throughout the developing world. As Stephen Ellmann noted, ".. .it appears that many Third World cause-lawyering groups that achieve more substantial size - and perhaps especially those groups that seek to grow while directly challenging powerful domestic interests - do so largely with foreign money." See S. Ellmann, "Cause Lawyering in the Third World" in A. Sarat & S. Scheingold, eds., Cause Lawyering: Political Commitments and Professional Responsibilities (New York: Oxford University Press, 1998) 349 at 354 [hereinafter Ellmann, "Cause Lawyering in the Third World"]. For example, foreign funding accounts for nearly 90 per cent of the annual income in 2003 of Africa's most successful cause lawyering group, South Africa's Legal Resources Centre (LRC). Of a total income of R27,319,911 (roughly US$4.1m), foreign donations were R23,626,210 (roughly US$3.5m). The Canadian International Development Agency (CIDA) alone provided, through the Canadian Bar Association (CBA), R3,906,869.27 (about US$600,000). See Legal Resources Centre, "Annual Report 2003," online (date accessed: 27 July 2005). Indeed, the establishment of LRC's highly successful specialized Constitutional Litigation Unit (CLU) was supported by CIDA funds, as part of Phase 1 of the $4m CBA Canadian/South African Constitutional Litigation and Legal Development Project. There has also been CIDA funding, through the CBA, for Zimbabwe's Legal Resources Foundation.

319 2000. It is quite likely that absence of funding has stalled the legal campaign against the

death penalty.181

In addition, it is not clear that HURILAWS has developed a coherent "test case"

1 89 strategy. In the death row challenge, for example, the prisoners had been on death row

Ellmann has observed, "There is no denying that this funding reality means that foreign, First World donors have played an important part in shaping the contours of Third World cause lawyering as it exists today. If the donors did nothing more than enable groups to grow that would otherwise have remained small, their role would be significant. But of course the grantors must also have priorities and agendas, for they could not otherwise choose among potential recipients." Ellmann, "Cause Lawyering in the Third World," ibid. Apart from this, foreign donor funding is particularly problematic in a hostile political environment. In Zimbabwe, for example, the Legal Resources Foundation (LRF) reports that its plans to establish an in-house test case litigation unit was unlikely to be realizable on the short-term because in the country's present "volatile political environment, many donors are wary of being seen to support this potentially controversial programme." See LRF Annual Report 2005. Available online Cf., e.g., the test case selection mechanisms of the National Council for Civil Liberties (NCCL) (United Kingdom) and the Women's Legal Education and Action Fund (LEAF) (Canada). See B. Cohen & M. Staunton, "In Pursuit of a Legal Strategy: The National Council for Civil Liberties" in J. Cooper & R. Dhavan, eds., Public Interest Law (Oxford: Basil Blackwell, 1986) 286 at 296-301, and Women's Legal Education and Action Fund, Equality and the Charter: Ten Years of Feminist Advocacy Before the Supreme Court of Canada (Toronto: Emond Montgomery, 1996) at xvii-xix respectively. On LEAF'S case selection strategy, see further, S. Razack, Canadian Feminism and the Law: The Women's Legal Education and Action Fund and the Pursuit of Equality (Toronto: Second Story Press, 1991) 52-58. On test case strategies generally, see, e.g., T. Prosser, Test Cases for the Poor: Legal Techniques in the Politics of Social Welfare (London: Child Poverty Action Group, 1983); R. Smith, "How Good are Test Cases" in Cooper & Dhavan, ibid, at 271-285. A global study by the International Human Rights Law Group found, "while litigation strategies can vary widely, a significant number of the human rights lawyers surveyed use impact or test litigation as a primary strategy for attempting social change through legal means." The Legal Resources Centre (LRC) of South Africa, for example, according to the study, currently concentrates its impact litigation strategy on socio-economic rights, given the new and greater recognition of such rights in the post- apartheid South African Constitution. Over the life of the organization, its impact litigation focus has shifted, depending on the current issues and the nature of the issue. During the apartheid era, the LRC handled impact litigation involving the notorious 'pass laws' (laws requiring all adult blacks to carry an identification document on them at all times, which contained information about such items as where they could live, where they could work and whether they had paid their taxes) and the forced removal of black populations to townships. Later their cases shifted to the quality of prison conditions, the right to strike and inquests to prove police complicity in the murder of anti-apartheid activists. Today, with fewer resources, the LRC is picking its tests cases very carefully to guarantee the highest possible impact See R.J. Wilson & J. Rasmussen, "Promoting Justice: A Practical Guide to Strategic Human Rights Lawyering" (2001) at 60, available online: International Human Rights Law Group http://www.hrlawgroup.org/resources/content/PromotingJustice.pdf (last visited: 22 May 2003)

320 for four years at the time appeal to the Supreme Court. This delay was mostly because of an unsuccessful appeal to the Court of Appeal. It is not obvious therefore that the duration on the death row in this case provided any strategic significance that made it a proper test case for death row prisoners in Nigeria generally. There was no particular investigation of the incidence of delayed execution in Nigeria, nor was any information available projecting that issue in the broader context of the administration of criminal justice. Available data shows that execution delay could be as long as seven years

(although on the average, it is less than three years).183 It is also not obvious how the second set of cases were the most appropriate cases to test the constitutionality of the death penalty. An issue as delicate as this should perhaps be more appropriately tested on a specific, narrow ground, such as sentencing juveniles to death, or capital punishment for an accomplice or for non-intentional conduct causing death. A court with limited institutional legitimacy, like the Nigerian Supreme Court, is likely to be less than receptive to sweeping constitutional challenges requiring radical judicial intervention in a major area of criminal policy. Unfortunately, because HURILAWS do not have resources for sustained litigation, the tendency is to use a single mega constitutional challenge instead.

C. "Victims Only": Privatizing Access to Human Rights Decision-Making

The legal resources to activate courts in legal challenges against public policy are also meagre. Recourse under the Nigerian Bill of Rights is, on the face of the text, restricted to

183 See A.A. Adeyemi, "Death Penalty: Criminological Perspectives - The Nigerian Situation" (1987) 58 Rev. Int'l Droit Penal 485 at 490. For a summary of the global caselaw on the 'death row' phenomenon, see W.A. Schabas, The Death Penalty as Cruel Treatment and Torture: Capital Punishment Challenged in the World's Courts (Boston: Northeastern University Press, 1996) at 127-33.

321 direct victims of violations of any of the guaranteed rights. Although closely resembling the victim requirement of the European Convention on Human Rights, the Nigerian recourse provision, as we saw in section II of chapter 2, was sourced from outside the

Convention. According to its terms,

Any person who alleges that any of the provisions of [the Bill of Rights] has been, is being or likely to be184 contravened in any State [in Nigeria] in relation to him may apply to a High Court in that State for redress.185

In Olawoyin v. Attorney General, Northern Region,1*6 the Supreme Court had a very early opportunity to consider the application of this provision. The appellant sought a declaration that certain provisions of the Children and Young Persons Law of Northern

Nigeria prohibiting political activities by juveniles violated the constitutional guarantees of the right to private and family life, and the freedom of conscience and of expression.187

The appellant, who was the secretary of an opposition political party, claimed that he desired to educate his children politically, which he feared would be at the risk of criminal prosecution under the legislation. However, the Court found that he did not have

"sufficient interest" to entitle him to the declaration sought. Speaking for the Court,

Unsworth, FJ said,

There is no suggestion that the appellant was in imminent danger of coming into conflict with the law or that there had been any real or direct interference with his normal business or other activities. In my view, the appellant has failed to show sufficient interest to sustain a claim. It seems to me that to hold that there was an interest here would amount to saying that a private individual obtains an

The italicized phrase ("is being or likely to be") was added by the Constitution of 1979, s. 42(1). Nigeria Const., 1999, s. 46(1) [emphasis added]. [1961]2SCNLR5. See Nigeria Independence Const. 1960, s. 31(1). For text, see appendix 1A.

322 interest by the mere enactment of a law with which he may in the future come in conflict; and I would not support such . . lgg a proposition.

If the applicant in this case is considered as merely seeking an anticipatory redress

for possible future injury, the Court may be justified, especially as the words "or likely to 1 SQ be" were not included in the text of the recourse provision at the time. But the case of

the applicant was not simply anticipatory. Essentially, he complained that the impugned provisions were unconstitutional in that they prevented him, on the pain of punishment,

from carrying out what was otherwise a constitutionally protected activity - educating his

own children on politics. This could hardly be said to be purely hypothetical.1893 The

Court's response, in effect, was that "sufficient interest" arises only with actually becoming a victim of application of the law.

188 Ibid, at 10. 189 See note 184 supra. A formalist reading of the original text in the light of the additional phrase introduced by the Constitution of 1979 tends to ascribe an unduly narrow scope to the pre-1979 provision. Thus, comparing the present version with the original text, a leading Nigerian work suggests, "the former now creates a cause of action in favour of an aggrieved citizen whose fundamental right is being threatened while under the latter such a citizen had to wait until the threat materialized. ...Section 42(1) of the 1979 Constitution has amplitude wide enough to accommodate many forms of relief like actions for declaration which do not require an existence of a cause of action." See G.O. Oyudo, Locus Standi and Declaratory Actions (Owerri: Government Printer, 1987) at 510 [hereinafter Oyudo, Locus Standi]. Peter Hogg offers a less restrictive reading of a similarly worded recourse under the Canadian Charter of Rights and Freedoms: Section 24(1) stipulates that the applicant's rights "have been" infringed or denied, which contemplates that the infringement has occurred at the time of the application. It does not authorize an application in respect of a merely apprehended future infringement. .. .However, it seems to be generally accepted that the imminent threat of a Charter violation would satisfy s. 24(1). For example, s. 24(1) will authorize a remedy for English-speaking parents who are denied by statute their Charter rights under s. 23 to send their children to an English-speaking school, even if the application is made before the school year has started, and therefore before any parent's child has actually been refused admission. See P.W. Hogg, Constitutional Law of Canada Students' ed. (Toronto: Carswell, 2002) at 845. 189a See B.O. Okere, "Judicial Activism or Passivity in Interpreting the Nigerian Constitution" (1987) 36 Int'l & Comp. L.Q. 788 at 796 ("could it seriously and reasonably be maintained that a parent has no legal interest in the education and general welfare of the child?")

323 Restricting recourse to direct victim(s) becomes especially problematic where he

or she is unable to personally bring an action. One situation is however clear. Where a

"victim" physically in the custody of someone else is unable to do so, a third party may bring an application for redress against that other party or their principal. This is implied

in the protection of the right to personal liberty and is akin to the process of habeas corpus. It would be completely absurd if the Bill of Rights supposedly diminished in any way a great remedy already enjoyed at common law.190 More problematic, however, is a

situation where the victim is dead, for example, because of violence while in custody. Is this victim outside the pale of recourse under the Bill of Rights?191 This may be illustrated with Aliu Bello v. Attorney General,1 2 where a prisoner on the death row was unlawfully executed while his appeal was pending. Although the right to life is directly protected by the Constitution, his dependants resorted instead to a wrongful death statute.193 The trial court and the Court of Appeal held that there was no proper cause of action.194 The Supreme Court reversed, holding that unlawful execution was a breach of a

In upholding standing, under a recourse provision nearly identical with Nigeria's, of a human rights organization to bring a constitutional challenge in relation to certain prisoners on the death row, the Supreme Court of Zimbabwe said "it would be wrong...for this Court to fetter itself by pedantically circumscribing the class of persons who may approach it for relief to the condemned prisoners themselves; especially as they are not only indigent but, by reason of their confinement, would have experienced practical difficulty in timeously obtaining interim relief from this Court." Catholic Commission for Justice and Peace in Zimbabwe v. Attorney General [1993] 4 SA 239 at 246-47 (per Gubbay CJ). 191 See Wilson Estate v. Canada (1996) 25 B.C.L.R. (3d) 181 (BC S.C.), where Shabbits J held that there was no standing under s. 24(1) of the Canadian Charter of Rights and Freedoms in a suit for damages by the administrator of a prisoner's estate for her death in custody. The Court concluded, since the prisoner was dead, "there is no s. 24 remedy which could be of benefit to her. It was her personal rights and freedoms which were allegedly violated." See ibid, at 187. 192 [1986] 5 NWLR 828. 193 Torts Law, Cap. 122 Laws of Oyo State of Nigeria 1978 (incorporating the English Fatal Accidents Act). 194 Liability under the wrongful death statute, as understood by the lower courts, was limited to death by "accident" caused by negligence. These courts were inclined to the view that wrongful execution of a prisoner was intentional or reckless, not negligent, within the meaning of the statutory regime.

324 constitutional duty to preserve life (arising from the right to life provision of the Bill of

Rights) and therefore constituted "fault" within the wrongful death statute. However, the

damages recoverable, which was miserable in this case, were limited to what was allowed

by the statute. This could have been avoided if the applicants were able to resort to

remedies under the Bill of Rights.

Olawoyin clearly raises the question of access to court to challenge

unconstitutional laws or policy. Restricting recourse for violation of rights to victims may

perhaps be tolerable if the Court recognized the public interest standing of anyone to

initiate a constitutional challenge even where his or her constitutional right is not directly

affected by the action or legislation challenged. Unfortunately, this possibility was denied

in Adesanya v. President of Nigeria}95 The doctrine that emerged from this case is that

constitutional challenges may only be brought by a person whose civil rights or

obligations are adversely affected by the impugned legislation.196 The effect is that there

[1981] N.S.C.C. 146. The facts are not particularly important for the present discussion. The appellant, a member of the Senate of the National Assembly, sought a declaration that an appointment made by the President, with the ratification of the Senate, of the chair of the Federal Electoral Commission was unconstitutional, as the appointee was not constitutionally qualified to hold that office. 196 This approach was founded on s. 6(6)(b) of the Nigerian Constitution: The judicial powers vested in accordance with the foregoing provisions of this section shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person, [emphasis added] Adesanya was a plurality decision. The radical private right standing approach was most strongly advocated by Bello JSC (at 168). But it is not obvious that a majority of the Court specifically supported it. For this view and analysis of the opinions of all the justices in this case, see T.I. Ogowewo, "The Problem with Standing to Sue in Nigeria" (1995) 39 J. Afr. L. 1. However, the narrow private right standing (Justice Bello's opinion especially) has emerged as the reputed decision of the Supreme Court, and has subsequently been confirmed by different panels of the Court. For a different reading of s. 6(6)(b), see T.I. Ogowewo, "Wrecking the Law: How Article III of the Constitution of the United States Led to the Discovery of a Law of Standing to Sue in Nigeria" (2000) 26 Brook. J. Int. L. 527 at 572-85. He argues, "it was certainly not the intention of the Constitution's framers to equate 'civil rights' with 'private legal rights.' What was intended was that the term 'civil rights' should refer to all the justiciable matters (civil and criminal) that a court can adjudicate. The idea was to delimit the judicial function of federal and state

325 is a victim requirement for all constitutional challenges. Therefore, unless an appropriate

victim exists and is willing to litigate, unconstitutional legislation or policy would be

immunized. This directly undermines any claim that the constitution is fundamental

law.197 It is regrettable, writes Nwabueze, that the Constitution

has been interpreted to preclude the relaxation of the strict application of the locus standi rule so as to permit the courts, in deference to the public interest in the enforcement of constitutional limitations, to allow the constitutionality of the legislative and executive acts of public authorities to be challenged in cases where a broad constitutional policy makes it desirable, as in cases where a strict adherence to rule would altogether prevent the enforcement by the courts of constitutional limitations. This is so particularly in cases of unconstitutional appointments which can hardly ever affect anyone else's civil rights and obligations.198 courts to such matters. The genus 'civil rights' therefore embraces two categories of such matters: (a) rights guaranteed in Chapter IV of the Constitution (fundamental rights) and (b) all other justiciable matters that can be determined by a court." Ibid, at 540. This is however a curious argument given use of the relative pronoun "that" in the operative clause, "the civil rights and obligations of that person." This is consistent with similar usage elsewhere in the Constitution, notably the right to fair hearing ("In the determination of his civil rights and obligations...a person shall be entitled to a fair hearing within a reasonable time..."). See Nigeria Const 1999, s. 36(1), 1979, s. 33(1). (The argument is also flawed because it ignores the fact that the text is directly derived from the European Convention on Human Rights, art. 6(1). For a discussion, see supra, chapter 2 §2(a). For the origin of the phrase "civil rights and obligations" in Article 6, see Feldbrugge v. The Netherlands (1986) 8 E.H.H.R. 425 at para. 22. 197 See Nigeria Const., s. 1: (1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. (2) (3) If any other law is inconsistent with the provisions of the Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void. In Canada, the constitutional supremacy provision (Constitution Act, 1982, s. 52) constitutes an independent portal to access courts. 198 B.O. Nwabueze, The Presidential Constitution of Nigeria (London: C. Hurst & Co., 1982) at 331- 32. See also, Oyudo, Locus Standi, supra note 189 at 505-12. For a recent comparison of the approaches within the Commonwealth, see C. Okpaluba, "Justiciability and Standing to Challenge Legislation in the Commonwealth: A Tale of the Traditionalist and Judicial Activist Approaches" (2003) 36 CILSA 25. See also T. Ngcukaitobi, "The Evolution of Standing Rules in South Africa and their Significance in Promoting Social Justice" (2002) 18 S. Afir. J. Hum. Rts. 590.

326 A fundamental difficulty created by the Adesanya doctrine is that makes it

impossible to separate the private right standing requirement of the Bill of Rights

recourse provision from standing required for constitutional challenges generally, thus

effectively denying any possibility of a public interest standing. Canadian courts have

made this critical distinction. Although recourse under the Canadian Charter of Rights is

about as limited as that of the Nigerian Bill of Rights,199 in a trilogy of cases200

antecedent to the Charter, the Supreme Court of Canada developed a discretionary

public interest standing exception to a primary "exceptional prejudice" standing

regime.202 Under the Canadian doctrine, constitutional challenge could be either by a

person directly affected by impugned legislation or by someone acting in the public

interest. However, since public interest standing is discretionary, it is granted only where

no directly affected person might be expected to initiate litigation.203

...[T]o establish status as a plaintiff in a suit seeking a declaration that legislation is invalid, if there is a serious

199 Recourse is available under the Charter only to "anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied" (s. 24). See K. Roach, "Section 24(1) of the Charter: Strategy and Structure" (1987) 29 Crim. L.Q. 222 at 235-38; A.A. McLellan & B.P. Elman, "The Enforcement of the Canadian Charter of Rights and Freedoms: An Analysis of Section 24" (1983) 21 Alta. L. Rev. 205, at 209-11. See generally, K. Roach, Constitutional Remedies in Canada, looseleaf (Aurora, ON.: Canada Law Book, 1994) paras. 5.370-5.470. 200 See Thorson v. Attorney General of Canada [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil [1976] 2 S.C.R. 265; Minister of Justice of Canada v. Borowski [1981] 2 S.C.R. 575. 201 In the Charter era, the Court extended public interest standing to challenges to exercise of administrative power. See Finlay v. Canada (Minister of Finance) [1986] 2 S.C.R. 607. 202 The rule in Smith v. Attorney General of Ontario [1924] S.C.R. 331. 203 "The whole purpose of granting [public interest standing] status," the Supreme Court of Canada has stressed, "is to prevent the immunization of legislation or public acts from challenge. The granting of public interest standing is not required when, on the balance of probabilities, it can be shown that the measure will be subject to attack by a private litigant." See Canadian Council of Churches v. Canada (Minister of Employment and Immigration) [1992] 1 S.C.R. 236 at 252. Presumably, public interest standing is likely to be allowed with respect to declaratory legislation than regulatory legislation, since in the case of the latter the persons whose activities are regulated should be able to initiate challenge. But in Nova Scotia Board of Censors v. McNeil (supra note 200), a newspaper editor was granted public interest standing because the Court felt that theatre operators, who were directly affected, were unlikely to drag their regulatory body to court.

327 issue as to its invalidity, a person need only to show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the Court.204

The priority of the private litigator in the Canadian public interest standing doctrine contrasts with the approach in India, where public interest standing may only be granted to presumably "disinterested" persons or organizations to seek judicial remedies for the protection of rights of third parties. This radical liberalization of

standing206 was particularly motivated by the reality that the pervasive poverty and illiteracy meant that a majority of the population are unable to pursue judicial remedies by themselves. The Supreme Court of India has explained the function of public interest standing as follows:

[W]here a legal wrong or legal injury is caused to a person or to a determinate class of persons in violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the Court for

204 Minister of Justice of Canada v. Borowski, supra note 200 at 598 (per Martland J). 205 That is, anyone "acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the court should not allow itself to be activised at the instance of such person and must reject his application at the threshold." See Gupta v. President of India 1982 A.I.R. (S.C.) 149 (Bhagwati J). This case was the watershed in the evolution of the Indian doctrine of public interest litigation. The doctrine was heralded the previous year in Fertilizer Corporation Kamgar Union v. Union of India 1981 A.I.R. (S.C.) 344 (workers' union permitted to challenge closure of a State-owned corporation employing them). 206 See S.D. Susman, "Distant Voices in the Courts of India: Transformation of Standing in Public Interest Litigation" (1994) 13 Wis. Int'l. L.J. 57; P.P. Craig & S.L. Deshpande, "Rights, Autonomy and Process: Public Interest Litigation in India" (1989) 9 Oxford J. Legal Stud. 356; R. Dhavan, "Law as Struggle: Public Interest Law in India" (1994) 36 J.I.L.I 302; S.P. Sathe, "Judicial Activism: the Indian Experience" (2001) 6 Wash. U.J.L. & Pol'y. 29 at 63-87, and Judicial Activism in India: Transgressing Borders and Enforcing Limits (New Delhi: Oxford University Press, 2002) c. 4; B.L. Wadehra, Public Interest Litigation: A Handbook (Delhi: Universal Law Publishing Co., 2003) c. 2.

328 relief, any member of the public can maintain an action for an appropriate direction, order or writ....

A willingness to liberalize standing is a mark of an activist court. Institutionally weak courts, on the other hand, are reluctant to do so because of the fear of a collateral harm of non-compliance or perhaps a counterattack by the government.208 This is probably in practice a more important factor in whether or not courts choose to liberalize standing than how the recourse text is written. For example, although the Indian text (Art.

32) is non-restrictive,209 the present liberal standing waited over thirty years after the

See Gupta v. President of India, supra note 205, at 188 [emphasis added]. The Court has noted that public interest litigation is a strategic arm of the legal aid movement. See People's Union for Democratic Rights v. Union of India [1982] 2 SCC 235. 208 Cf. D. Feldman, 'Public Interest Litigation and Constitutional Theory in Comparative Perspective" (1992) 55 Mod. L. Rev. 44, 54-55, who, discussing only one Nigerian case, suggests a different explanation of Nigeria's restrictive standing doctrine (because "the political system is dominated by tribal tension. ...[t]he Nigerian response keeps the constitution out of tribal differences by rationing the availability of judicial redress.") 209 For the text, see chapter 1 of the present study at note 34. Very early in the life of the Indian Constitution, the apparently non-restrictive textual form of Article 32 caught the attention of Ivor Jennings, who observed: "clause (1) [of Article 32] seems very vague. The right to move the Supreme Court by 'appropriate proceedings' is guaranteed: but who has the right and what are the appropriate proceedings?" See I. Jennings, Some Characteristics of the Indian Constitution (Madras: Oxford University Press, 1953) at 39. Three decades later, the Court directly addressed that question: There is no limitation in the words of Clause (1) of Art. 32 that the right which is sought to be enforced by moving the Supreme Court should be one belonging to the person who moves the Supreme Court nor does it say that the Supreme Court should be moved only by a particular kind of proceeding. It is clear on the plain language of CI. (1) of Art. 32 that whenever there is a violation of a fundamental right, any one can move the Supreme Court for enforcement of such fundamental right. ...[T]he Court would not ordinarily entertain such a proceeding, since the person whose fundamental right is violated can always approach the Court and if he does not wish to seek judicial redress by moving the Court, why should someone else be allowed to do so on his behalf! This reasoning however breaks down when we have the case of a person or a class of persons whose fundamental right is violated but who cannot have resort to the Court on account of their poverty or disability or socially or economically disadvantaged position and in such a case, therefore, the Court can and must allow any member of the public acting bona fide to espouse the cause of such person or class of persons. This does not violate, in the slightest measure, the language of the constitutional provision enacted in Clause (1) of Art. 32. See Bandhua Mukti Morcha v. Union of India A.I.R. 1984 (S.C.) 802 at 813, per P.N. Bhagwati J.

329 Constitution came into force. With growing activism of the Indian Supreme Court from

the 1980s, "broadening standing to encourage public interest litigation helps ensure that

the court will remain an important locus of consideration for many important issues of

social policy." ° Also, even though Zimbabwe's recourse provision211 is directly

modeled on the Nigerian text, that country's Law Society successfully launched a public

interest challenge against certain provisions of the Capital Gains Withholding Tax Act for

violating the constitutional right to property. The Zimbabwe Supreme Court held that

although the legislation did not directly affect the Law Society, it had "a real and

substantial interest in the proceedings."212

The Zimbabwe court however leaves us clueless how it managed to avoid the

compelling force of the text, a problem, as we have seen, that does not arise with Indian

courts. In the circumstances, the Canadian approach of an independent public interest

standing is more satisfactory. Even that is however not completely free of tension.

Because the private litigant is preferred where available, the Canadian Supreme Court is

anxious that public interest litigants do not displace that person.213 Indeed, the Court has

Ginsburg, Constitutional Courts, supra note 27 at 98. 211 Zimbabwe Const., s. 24(1). 212 Law Society of Zimbabwe v. Minister of Finance [2000] 2 B. Const. LR 226, 229-30. See also Catholic Commission for Justice and Peace in Zimbabwe v. Attorney General [1993] 1 Zim. L. Rep. 242, [1993] 4 SA 1108 (Z.S.) But, rather remarkably, the Court has denied a recognized political party standing to challenge the constitutionality of the Electoral Act. See United Parties v. Minister of Justice, Legal and Parliamentary Affairs [1998] 2 B. Const. LR 224, 229D-E ("The applicant is not entitled under section 24(1) of the Constitution to carry the touch for claimants and voters generally. It has to show that absence of action by the constituency registrar is likely to affect those of its members who qualify under.. .the Electoral Act. In my opinion, the most the applicant has been able to indicate in relation to itself, in this wide sense, is a fear of such an occurrence - a remote possibility of its happening. That is an inadequate foundation upon which to seek enforcement of the protective provisions of the Declaration of Rights. In short, the applicant's concern is predicated on surmise or conjecture."[Emphasis in original]) See also, In re Wood [1994] 2 Zimb. L. Rep. 155, [1995] 1 B. Const. LR 43 (ZS). 213 See Canadian Council of Churches, supra note 203 at 256 (".. .if the basis for granting status were significantly broadened, these public interest litigants would displace the private litigant.").

330 lately refused to recognize the standing of a retailer to challenge the constitutionality of a

legislation restricting shopping on holidays, even though retailers and retail employees

were subject to prosecution for violation.214

D. Beyond Lis Inter Partes

Allowing public interest intervention by third parties is a cost-effective compensation for

loss of access to court under a restrictive standing regime.215 Public interest216

intervention, or the modern institution of amicus curiae, is the most significant mode of

access to pubic law adjudication that evolved in the twentieth century. Discretionary

power to permit intervention is today widely exercised by courts around the world. It is

not necessary here to discuss the evolution of the modern institution in the United

917 9 1R 910 990 States or its impact there and its reception in Canada and elsewhere. Suffice

" See Hy and Zel's Inc. v. Ontario [1993] 3 S.C.R. 675 (L'Heureux-Dube and McLachlin JJ. dissenting). For a criticism, see J.M. Ross, "Standing in Charter Declaratory Actions" (1995) 33 Osgoode Hall L. J. 151 at 171-74. 215 See Canadian Council of Churches, supra note 203 at 256 ("[T]he views of the public litigant who cannot obtain standing need not be lost. Public interests organizations are, as they should be, frequently granted intervener status."). 216 In the literature, the terms "non-party" or "third-party" are also used. These expressions capture the essence that the intervener is not heard as a person or body directly affected by the outcome of the case. 217 See S. Krislov, "The Amicus Curiae Brief: From Friendship to Advocacy" (1963) 72 Yale L.J. 694. See also E. Angell, "The Amicus Curiae: American Development of English Institutions" (1967) 16 Int'l & Comp. L.Q. 1017; and Comment, "The Amicus Curiae" (1960) 56 Nw. U.L. Rev. 469. 218 See G.A. Caldeira & J.R. Wright, "Amici Curiae Before the Supreme Court: Who Participates, When, and How Much?" (1990) 52 J. Politics 782; K. O'Connor & L. Epstein, "Amicus Curiae Participation in U.S. Supreme Court Litigation: An Appraisal of Harkman's Folklore" (1981-82) 16 Law & Soc'y Rev. 311; S. Puro, The Role of the Amicus Curiae in the United States Supreme Court, 1920-1966 (Ph.D Thesis, State University of New York at Buffalo, 1971) [unpublished]. 219 See generally, Brodie, Friends of the Court, supra note 63 and C.P. Manfredi, Feminist Activism in the Supreme Court: Legal Mobilization and the Women's Legal Education and Action Fund (Vancouver: UBC Press, 2004) [hereinafter Manfredi, Feminist Activism], See also, B. Dickens, "A Canadian Development: Non-Party Intervention" (1977) 40 Mod. L. Rev. 666 (discussing the watershed decision of Mortgentaler v. R. [1975] 1 S.C.R. 616); P. Bryden, "Public Interest Intervention in the Courts" (1987) 66 Can. Bar Rev. 490; J. Welch, "No Room at the Top: Interest Groups Interveners and Charter Litigation in the Supreme Court of Canada" (1985) 43 U. Toronto Fac. L. Rev. 204; S. Lavine, "Advocating Values: Public Interest Intervention in Charter Litigation" (1992) 2 Nat. J. Const. L. 27-62; K.P. Swan, "Intervention and Amicus Curiae in Charter Litigation" in R.J. Sharpe, ed., Charter Litigation (Toronto/

331 that it is the dominant mode of interests and rights advocacy group participation in the

United States and Canadian supreme courts.

For reasons previously discussed, legal challenges in Nigeria at the instance of a qualified "victim," where that is at all possible, are mostly not vigorously prosecuted. At any rate, policy change is not usually an objective of such litigation. While the dispute remains formally inter partes, intervention of rights and public interest advocacy groups would allow the voice of constituencies that would otherwise be shut out for want of standing to be heard,221 especially where, as is most likely, they are without means to effectively pursue their goals politically.222 This transformation of victim-initiated challenge has a critical significance because civic groups have very limited opportunity for constitutional challenges, as they rarely satisfy the standing threshold to qualify as

Vancouver: Butterworths, 1987) 27-44. It is instructive that reception of the neo-American amicus in the Canadian Supreme Court coincided with introduction of the Canadian Bill of Rights 1960. ("The elaboration of the Canadian Bill of Rights was the unstated but obvious spark for the development of a concept of public interest intervention in the Supreme Court of Canada." See Swan, ibid at 30, citing Robertson and Rosetanni v. R [1963] S.C.R. 651, AG., Can. v. Lavell [1974] S.C.R. 1349, and Mortgentaler, ibid.). 220 E.g., for England: see A.C. Loux, "Losing the Battle, Winning the War: Litigation Strategy and Pressure Group Organization in the Era of Incorporation" (2000) 11 KCLJ 90. Cf. S. Hannett, "Third Party Intervention: In the Public Interest? [2003] Pub. L. 128. For Scotland: A. Loux, "Writing Wrongs: Third- Party Intervention Post-Incorporation" in A. Boyle et al., eds., Human Rights and Scots Law (Oxford: Hart Publishing, 2002) 329-41. 221 This mechanism would provide access for individuals and groups to participate in intergovernmental cases under the original jurisdiction of the Nigerian Supreme Court (discussed supra, chapter 4 §1A of the present study). Unlike the Nigerian Court, the Supreme Court of Canada and the provincial courts of appeal have been quite open to public participation in reference cases, and sometimes actively solicit their briefs. See for example, Newfoundland Continental Shelf Reference [1982] 1 S.C.R. 86. 222 Richard Cortner claimed in the 1960s that litigants who are highly dependent upon the judicial process as a means of pursuing their policy interests are those who are "usually...temporarily, or even permanently, disadvantaged in terms of their abilities to attain successfully their goals in the electoral process, within the elected political institutions or the bureaucracy. If they are to succeed at all in the pursuit of their goals they are almost compelled to resort to litigation." See R.C. Cortner, "Strategies and Tactics of Litigants in Constitutional Cases" (1968) J. Pub. L 287. This so-called "political disadvantage" thesis has been stridently critiqued. See, e.g., Brodie, Friends of the Court, supra note 63 at 1-16. But it is

332 parties, and hardly have the means to sponsor sustained litigation. Secondly, amici serve

a critical function of communicating legal and policy information to courts, a role that the

parties may not be able to perform satisfactorily. The experience of the United States and

Canada confirms this informational role of the amicus. "The views and submissions of

interveners on issues of public importance frequently provide great assistance to the

courts," the Supreme Court of Canada has acknowledged.224

There is almost no amicus role in litigation in Nigeria. The rules of the Supreme

Court of Nigeria do not include any provision permitting it to consider a request for public interest intervention. In fact, the Court does not entertain any such application.

Instead, it occasionally exercises its inherent power, following the practice of courts at common law,225 to directly invite lawyers of its choosing to make submissions on any novel or otherwise important legal or constitutional questions.226 In practice, the attorneys general of the federation and of the states are usually invited, although invitation is

quite persuasive in developing countries where political access is closed to many, and political accountability is weak. 223 See P.M. Collins, "Friends of the Court: Examining the Influence of Amicus Curiae Participation in U.S. Supreme Court Litigation" (2004) 38 Law & Soc'y Rev. 807. However, scholars of the U.S. Supreme Court suggest varying explanations of how this amicus role is performed. See J.E Spriggs, "Amicus Curiae and the Role of Information at the Supreme Court" (1997) 50 Pol. Res. Q. 365 (rejecting the conventional view that amicus briefs provide the Court with information that is not otherwise supplied by litigants). Cf. L. Epstein & J. Knight, "Mapping Out the Strategic Terrain: The Informational Role of Amici Curiae1'' in C.W. Clayton & H. Gillman, Supreme Court Decision-Making: New Institutionalist Approaches (Chicago: University of Chicago Press, 1999) at 215. A recent study argues that a major factor in the impact of LEAF on the Supreme Court of Canada is "the type of evidence it brought to the Court's attention." See Manfredi, Feminist Activism, supra note 219 at 150 and 150-78 for analysis. 224 Canadian Council of Churches, supra note 203 at 256. 225 The English practice is that a request for an amicus by the High Court or Court of Appeal (or, occasionally, the House of Lord) is sent to the Attorney General, or routed to him through the Treasury Solicitor, who makes a choice from a list of barristers regularly instructed to act on behalf of government departments. See Justice/ Public Law Project, A Matter of Public Interest: Reforming the Law and Practice on Interventions in Public Interest Cases (London: Justice, 1996) at 35-36. 226 Some of the most important examples are: Aliu Bello v. Attorney General ofOyo State [1986] 5 NWLR 828 (execution of prisoner on death row with appeal pending); Ogugu v. State [1994] 9 NWLR 1

333 sometimes extended to the private bar. The practice of inviting the attorneys general is

desirable, as this partly corrects the anomaly that litigants filing constitutional challenges

are not required to give notice to the federal or state attorneys general. (It is not unusual

for important constitutional questions to be argued at the Supreme Court, and other

courts, without any input from the Attorney General of the Federation).

However, under the present practice, amicus participation is sporadic and

dysfunctional. The practice of court-appointed amici is very unsatisfactory. There are no

discernible criteria guiding the Court in choosing whom to invite from the private bar as

amicus except that the Chief Justice is apparently satisfied that the lawyer is of sufficient

seniority or experience.227 There is no indication that expertise is an important

consideration. No academic lawyer has ever been invited. Indeed, it is unhelpful that only

individual lawyers are invited. Rights and interests advocacy organizations may be in a

far better position to address the issues in question not only because of their legal

expertise; they could also provide the Court with valuable extrinsic evidence. But at

common law, they are regarded as partisan and therefore unfit to assist the court as

228 amicus.

(prolonged delay of execution); and Kalu v. State [1998] 13 NWLR 531(constitutionality of the death penalty). All three cases are discussed in this chapter. 227 In one case, the Court described the lawyers invited as "senior and eminent learned counsel." See Kalu, ibid, at 577. 228 See Re Northern Ireland Human Rights Commission (Northern Ireland) [2002] UKHL 25 at para. 72 (Lord Hobhouse, dissenting)

334 Chapter Five

MAPPING THE POWER OF THE SUPREME COURT: INTERPRETIVE PRACTICE AND THE LIMIT OF NORMATIVE AND INSTITUTIONAL RESOURCES

The preceding chapters provided an institutional framework of Supreme Court of

Nigeria's human rights decision-making. Their principal objective is a defence of the specific claim of this study: the Court's reticent decision-making is, generally, because of its limited political resources (institutional support), a condition, in our view, associated primarily with its limited institutionalization. (The basic explanation of our framework is presented in chapter 1.) Although undoubtedly of primary significance, this institutional support deficit is not the only institutional resource1 constraint of the Court. The legal socialization of the Justices as well as their immediate institutional environment, discussed in Chapters 3 and 4 respectively, also limit the resources of the Court.

Continuing this theme, the present chapter examines factors engendering the four

"problematic properties" of the Court's human rights decision-making identified at the beginning of our study.2

While the behaviour of the Court indicated by these properties is primarily explicable by its limited store of political capital (institutional support), whether courts choose to interfere with policy, and the extent they actually do so, depends also, albeit secondarily, on availability of adequate legal resources. The relative importance of political and legal resources is obvious. While activism is not a necessary complement of

1 Throughout this study, I use "institutional resources" almost interchangeably with "political resources" and primarily in the restricted sense of institutional support or legitimacy. I sometimes also use the term more liberally for the Supreme Court's institutional resources generally, including, as in this chapter, normative resources. 2 See Introduction, supra at 4-5. every highly legitimized court, without considerable institutional support a court is unlikely to be attracted to robust or activist decision-making. And weak legal resources, however, quite often leave it without a valuable means to do so any way. In this situation, therefore, limited institutional support is in fact likely to reinforce formalist/ reticent judicial practice, such as, we have already seen, the restrictive access to judicial remedies in Nigeria.3

Building on and providing support for assumptions developed earlier, this chapter critically frames the human rights caselaw of the Supreme Court of Nigeria.4 The cases disclose a reticent disposition often associated with discreet use of strategy. Although the

Court's human rights caselaw portfolio is slim, there is enough material for a highly informative, albeit tentative, analysis. Most of the cases discussed hereunder are included in Table 1 (chapter 1 §2A) or are otherwise mentioned elsewhere in the preceding chapters. The present chapter is a general account of how the Court's legal and institutional resources shape its work, a wide-ranging discussion of the state of its decision-making resources. Hopefully, the discussion explains why the Court is poorly receptive to a generous reading of the Bill of Rights.

The Supreme Court's orientation to adjudication of concrete disputes within the established law makes traditional legal materials its predominant decision-making resource. What Robert Seidman calls "appropriate rules for justification,"5 used by the

Court to rationalize choices made in particular cases, have almost always been dictated

3 See Chapter 4 §3. 4 The cases are selected in accordance with the criterion explained in the Introduction, note 12 and accompanying text. 5 See R. B. Seidman, "The Style of Appellate Opinions in East Africa: A Comment" (1970) 3 Eastern Afr. LR 189-201.

336 by narrow legal sources. The Court is largely inattentive to comparative human rights law and non-binding international law. Its preference for strictly formal legal sources of law ensures that the influence of external norms and soft law as "persuasive authority" in

Supreme Court decision-making is generally not great. To be sure, the opinion-writing style of the Court has changed over time, from short and precis-type, largely per curiam opinions in the sixties and early seventies to contemporary lengthy individual opinions.6

Section 1 provides a general account of the Court's formalist human rights decision­ making. Rights are narrowly defined in the practice of the Court; it assigns excessive weight to form, the specific language of the rights clauses, and very little to their purpose or the specific manner they are constitutionally secured. The effect is that the protection provided by the Bill of Rights is severely discounted, weakened and rendered generally ineffective. This result is particularly visible in the Court's application of the public interest limitations of rights.

The Supreme Court has missed the significance of the Bill of Rights in at least three important ways. First, its narrow legalistic or pedantic approach tends to defeat the purpose of the guarantees. Secondly, constitutional rights are generally denied any significance independent of existing rights at common law. Thirdly, the Court has yet to take seriously the constitutionally stipulated justification required of any law limiting the exercise of rights. Instead, a hangover of the colonial regime of unquestionable authority of law and of unbridled discretionary power remains by and large the norm of public life.

6 Multiple opinions were rare before the 1970s. After that period opinions tended to be increasingly lengthy and multiple opinions more common. (The growth of seriatim opinions is discussed in section 2 of the chapter). Although much that is valuable may be learned from them, this study is not concerned as such with opinion styles in the Supreme Court. Unfortunately, little attention has been paid to the subject in Nigeria, and elsewhere in Africa, in spite of Seidman's pioneering effort. See Seidman, ibid.

337 Section 2 discusses how the Court's decision-making structure reinforces its legalistic orientation. The caselaw disclose a strong consensus norm, even stronger still with rights cases than other business of the Court. Disagreement is very rare and so also is overturning of precedents. This is in spite of very limited overt collegiality. We argue that a court such as the Nigerian Supreme Court that never consciously holds itself out as making legal policy but rather as merely applying more or less settled law is more likely to be naturally attracted to consensus. It is a vital means of conserving its limited political resources.

Section 3 discusses the limited influence on the Court of legal materials outside the formal sources. The legal resource the Supreme Court mostly depends on has, in Paul

Weiler's language, "much too brittle a texture to do the job that is demanded of them."7

The discussion begins by acknowledging the growing phenomenon of judicial globalization. Next, we discuss the emerging global significance of international law, especially non-binding norms, in decision-making by domestic courts. The work of the

Supreme Court does not appear sensitive to either of these trends. There is very little evidence in its output of the global influence of, for example, the jurisprudence of the

European Convention on Human Rights. This is particularly remarkable because the

Convention is closely modelled by the Nigerian Bill of Rights. Use of comparative law is in general weak. It is especially remarkable that there is no a steady communication between the Court and other African courts, even those in the neo-Nigerian bill of rights belt.

7 P. Weiler, In the Last Resort: A Critical Study of the Supreme Court of Canada (Toronto: Carswell, 1974) at 229 [hereinafter Weiler, In the Last Resort].

338 Section 4 offers two explanations for the weak influence of external norms and soft law in Supreme Court decision-making. Information input is very limited. The first part of this section discusses information flow to the Court. The decision-making process depends rather excessively on external information inputs. No support is available to the

Justices for research and opinion writing. In the second part we suggest that the reluctance of the Court to put its limited political resources at risk by overturning government policies or legislation may also explain its low inclination to referencing comparative law. Weak courts are more likely to resort to such a resource not only where it would enhance their power but also where it does not seriously risk depleting it.

I. THE BILL OF RIGHTS AS A CODE: THE FORMAL STYLE IN SUPREME COURT DECISION-MAKING

Drawing on the experience of the United States, David Strauss identifies three distinct normative visions of the Bill of Rights.8 Each sees the Bill of Rights as serving a distinct purpose (or set of purposes) and is presupposed on particular normative and institutional practices. One of these normative visions is a formalistic conception of the Bill of Rights as a code or an exhaustive catalogue of rights. One element of this regime and a characteristic mode of argument is what Strauss calls exclusivity: no rights other than those identified in the text are admitted. The other is formalism. There is heavy reliance on the precise language of the text; a pretence that the text resolves more issues than it

8 D.A. Strauss, "The Role of a Bill of Rights" in G.R. Stone, R.A. Epstein & C.R. Sunstein, eds., The Bill of Rights in the Modern State (Chicago/ London: The University of Chicago Press, 1992) at 539 (arguing that there are three conceptions of the Bill of Rights used in argumentation, and that many controversies that appear to concern the proper interpretation of any one of its provisions are in fact contests between or among these different conceptions).

339 actually does; and an effort to shift responsibility for a decision away from the actual decision-maker to some other party, such as the Framers.9 Thus, the formalist regards the absence of explicit textual support as determinative of whether a particular activity is protected by the Bill of Rights. Strauss distinguishes this formalistic approach from competing normative visions: a moral conception of the Bill of Rights as a charter of fundamental rights; and a structural conception of the Bill as a means of correcting some specific failures of representative government respectively.

Applying Strauss's typology, a formalist vision is indicated by the experience of the Supreme Court with Nigeria's Bill of Rights. The primary perspective of the Court in the cases discussed in the first part of this section is framed by formalism10 and exclusivity. These cases show a court strongly exercised by formalism. It is fixated throughout on the text. But it never robustly interrogates the text. Nowhere does the

Court explore, for example, the textual penumbra or the purpose of the Bill of Rights or any provision thereof, or the functions that a particular right serves in a democratic society, the explicit constitutional benchmark. This practice is completely divergent from the contemporary trend almost everywhere else which, recognizing that their vitality (so- called 'living tree'11) would be snuffed out by legalistic or pedantic interpretation,

9 Ibid, at 540-48. 10 Although the discussion in this section focuses on the formalist attitude to text (the features which, as identified by Strauss, are stated above), it falls within the broader context of formalism/ Formal Style decision-making as those terms are used throughout this study (explained in chapter 1, note 24). 11 See A. Kavanagh, "The Idea of a Living Constitution" (2003) 16 Can. J.L. & Jurisprudence 55. The classic formulation is Edwards v. Attorney-General for Canada [1930] A.C. 124 at 136 (per Lord Sankey).

340 emphasises generous, purposive interpretation of rights provisions, "suitable to give individuals the full measure of the fundamental rights and freedoms."13

The formalist approach of the Supreme Court crystallized during the 1960s. As we show in the second part of this section, during this period the Court was very unfamiliar with American rights jurisprudence. The training and professional socialization of Supreme Court judges was limited to English law and legal institutions.

Neither the English courts nor, generally, other Commonwealth jurisdictions offered extensive resources apposite to the interpretation and application of modern bills of rights. At the same time the Supreme Court was unable to fashion any independent path for itself by assigning special legal significance to the Constitution's rights provisions.

The result, as we show in the final part of this section, is that no modalities for principled justification of restriction of rights have been established after four decades. Balancing individual rights and the public interest is not transparent, and as a result, the State frequently gets away with gratuitous encroachments on the exercise of basic rights.

A. "Austerity of Tabulated Legalism"

The initial unsophisticated encounter of the Supreme Court with the Bill of Rights, in the

1960s, seemed to define its approach during the next four decades. Application of the particular provisions litigated lacked depth and context. Lacking perspective, the

Hunter v. Southern* Inc. [1984] 2 S.C.R. 145. See also A. Barak, Purposive Interpretation in Law (Princeton: Princeton University Press, 2005) 370-93 [hereinafter Barak, Purposive Interpretation] (discussing purposive constitutional interpretation). 13 Minister of Home Affairs v. Fisher [1980] AC 319, 328 (per Lord Wilberforce).

341 approach of the Court sank, in de Smith's phrase, into an austerity of tabulated legalism.14

The first two rights cases decided by the Court concerned freedom of expression.

The constitutional protection, which, as we saw in chapter 2, is practically in the same terms as Article 10 of the European Convention, states:

Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.

The first of the two cases, Chike Obi,15 involved the criminalization of political speech

(sedition). The defendant, a Member of Parliament and leader of an opposition party, was prosecuted for distributing an alleged seditious pamphlet, "The People: Facts that You

Must Know." It denounced politicians as "enemies of the people, the exploiters of the weak and oppressors of the poor." The publication also included allegation of corruption and dishonesty by politicians generally.16 The Court rejected the view urged upon it on behalf of the defendant that the unreformed colonial sedition law of the Criminal Code was inconsistent with the constitutional protection of freedom of expression, at least in so far as it did not require an incitement to violence as an ingredient of the offence.17 It "is

See S.A. de Smith, The New Commonwealth and its Constitutions (London: Stevens, 1964) at 194 (preambular recital in neo-Nigerian bills of rights "serves useful purposes. It brings out the purposes of the guarantees, lifting them above the austerity of tabulated legalism."). The phrase was popularised by Lord Wilberforce, without citing de Smith, in Fisher, ibid at 328 (advocating "a generous interpretation avoiding what has been called 'the austerity of tabulated legalism.'") 15 [1961] 1 SCNLR 197. 16 See chapter 1 note 60 and accompanying text. 17 That an incitement to violence was unnecessary for the offence was established by the West African Court of Appeal during colonial rule (Criminal Code of the Gold Coast): R. v. Wallace Johnson 5 WACA 56 at 60, aff d [1940] A.C. 231 (Privy Council). Interestingly, when this rule was being established for colonial criminal law, it was already well-settled in English law that a tendency to incite violence was a necessary element of the offence of sedition at common law. See R. v. Aldred (1909) 22 Cox C.C. 1 at 3 ("The word 'sedition...implies violence or lawlessness in some form...." Per Coleridge J.).

342 not permitted," the Court said "to criticize the Government in a malignant manner." It did not matter at all that this was a democratically elected government in a parliamentary democracy. The Court did not consider the purpose of the constitutional protection or the function of the freedom of expression in a democracy. Nor did it indicate what manner of content-based restriction of free speech, if any, may presumably violate the constitutional protection. This is particularly worrying. If the zone of constitutional protection of free speech did not extend as far as non-violent criticism of the government, it is difficult to imagine what expressive activity was protected. It seems indeed that the introduction of the Bill of Rights at the close of colonial rule did not have any effect at all on the extant draconian sedition law, a regime colonial officials had throughout aggressively applied to suppress nationalist agitations.

The other case, Amalgamated Press}9 was a prosecution of a newspaper publisher for "publishing false news likely to cause fear and alarm to the public" and for publishing a seditious publication. The actual particulars of the charges are unknown, as the constitutional issue was referred to the Supreme Court without any finding of facts by the trial judge. The significance of this case is that it was the first press freedom case to reach the Court. Like Article 10 of the European Convention, the Nigerian text does not mention the press. Unfortunately, the Supreme Court dealt with the reference rather summarily. The opinion is only two pages, and practically adds nothing to Chike Obi, which was announced on the same day. The Court simply concluded that for reasons given in this other case, the constitutional protection could not be "a licence to spread

18 [1961] lSCNLR197at 206. 19 Amalgamated Press Ltd & Fotogun v. J? [1961] 1 SCNLR 194.

343 false news likely to cause fear and harm to the public." Once again, there was no discussion of the significance and scope of the constitutional protection. The Court did not acknowledge any special status of the defendant as newspaper publisher or any special issues regarding application of the provision in the circumstances. If anything, the manner the Court dealt with the case suggests that it did not consider that press enjoyed any special privileges within the constitutional protection of the freedom of expression.

In one day, the Court threw out two significant free speech challenges clearly without any regard for the role of the constitutional protection for democratic governance.

In Merchants Bank v. Federal Minister of Financed the plaintiffs challenged the revocation of their banking license by the minister because it violated the constitutional guarantee to have their civil rights determined by "a court or other tribunal established by law."22 The Court stated correctly that the question was whether a right, or licence, obtained under the Banking statute "comes within the meaning of civil rights in the context in which it appears in the fifth clause to the Sixth Schedule to the 1954

Constitution."23 Yet, by some contorted formalism, without exploring that issue at all, the

Court simply concluded that revoking a banking licence does not come within the constitutional protection.

...without attempting to define that most controversial term 'a right,' or in this case a 'civil right,'...it cannot be

20 Ibid, at 196. 21 [1961]2SCNLR272 22 Nigeria Const. 1954, Sixth Schedule, Para. 5 [text reproduced in Appendix 1A to the present study]. The text is derived from art. 6(1) of the European Convention on Human Rights. (For discussion, see chapter 2 §2A supra.) For the origin of the phrase "civil rights and obligations" in the Convention, see Feldbrugge v. The Netherlands (1986) 8 E.H.H.R. 425 at para. 22. Under Convention jurisprudence, proceedings to revoke transport licences, for example, affect one's civil rights within the meaning of Art. 6(1): Pudas v. Sweden (1987) 10 E.H.R.R. 380. 23 [1961] 2 SCNLR 272 at 275.

344 contested that the appellant bank has not by virtue of the Banking Ordinance, a right to carry on the business of Banking within the terms of that Ordinance. Further, that so long as the revocation takes place within the exercise of the powers granted under s. 14 of that Ordinance the appellant Bank cannot be heard in effect to say that though it acquired the right to do business under the Ordinance, that right by virtue of the [constitutional guarantee] can only be revoked in the manner provided for the determination of a person's 'civil rights and obligations'24

An immediate implication of the position taken by the Court was that administrative powers of officials are, as in this case, immunized from constitutional challenge. Secondly, it denies that a licence granted under a statute is a right. This makes a highly formalistic distinction between a right and a licence without pausing to consider whether it is a distinction relevant to the scheme of the constitutional protection. "If the case heralds the law which is to be," wrote an early commentator, "it may fairly be said to be a disaster for Nigerian law."

Merchants Bank embodies conceptualistic jurisprudence of the narrowest sort. Instead of approaching the Constitution as a charter of government, it treats it as it would an insurance policy written in fine print. Instead of construing the phrase "civil rights and obligations" in a generous spirit adapted to the benevolent purposes of s. 22(1 ),25 it interprets the phrase as though written in a text by Hohfeld. ...By excluding Holfeldian 'privileges from the phrase 'civil rights' the Court all but reads 22(1) out of the Constitution."26

24 Ibid, at 276 Unsworth F.J., concurring, also remarked, "the only right obtained by the appellant was the right to carry on the business of banking in accordance with their licence under the Banking Ordinance, and there can be no infringement of paragraph 5 of the 6th Schedule to the 1954 Constitution if that right is terminated in accordance with the provisions of the Ordinance." Ibid, at 277. 25 Parallel provision of the Constitution of 1963. 26 R.B. Seidman, "Constitutional Standards of Judicial Review of Administrative Action in Nigeria" (1964) I Nigerian L.J. 232 at 243. As the author points out, the decision squarely reflected the prevailing standard of English administrative law, which placed revocation of licences outside judicial control: See Nakkuda Ali v. Jayaratne [1951] A.C. 66 (Privy Council) (licence to deal in textiles); R. v. Metropolitan

345 Five years later, the Court's highly deferential attitude to official power was unmitigated. Awolowo v. Sarki11 involved a constitutional challenge against a discretionary power of the Immigration Minister to refuse entry into Nigeria of non-

Nigerians. The immigration statute states the power in the following terms:

Notwithstanding anything in this Ordinance contained, the Minister may, in his absolute discretion, prohibit the entry into Nigeria of any person, not being a native of Nigeria.

The case presented a very compelling occasion for constitutional review of this power. Obafemi Awolowo, the Leader of the parliamentary opposition, on trial for treasonable felony, instructed a British Queen's Counsel to defend him. Although not a

Nigerian citizen or resident, the lawyer was a member of the Nigerian bar and had practised there on several occasions previously. In addition, he had a valid "travel pass" to Nigeria. Nonetheless, he was refused entry into Nigeria at the Lagos airport on the order of the Minister of Immigration. (Although malice was never formally established in court, the Minister's action was without doubt simply intended to prevent the lawyer from assisting the defence at the treason trial.) A constitutional challenge was promptly launched by Awolowo on the ground that refusing his lawyer entry into Nigeria violated his own constitutional right to be defended by a counsel of his choice.29 The trial judge rejected the challenge partly because, axiomatically, "the Constitution is a Nigerian

Police Commissioner, ex parte Parker [1953] 1 W.L.R. 1150 (cab-driver's licence). (Neither of these cases is however cited in Merchant Bank.) 27 [1966] NSCC 209. 28 Section 13, Immigration Ordinance, cap. 84 Laws of the Federation of Nigeria and Lagos 1958. 29 "Every person who is charged with a criminal offence shall be entitled to defend himself in person or by legal representatives of his own choice." Nigeria Const. 1960, s. 21(5)(c).

346 Constitution meant for Nigerians in Nigeria. It only runs in Nigeria." Before the

Supreme Court, the plaintiff submitted that statutory powers should be construed as subject to the Constitution and in particular, such powers must be exercised so as not to prevent rights granted by the Constitution from being enjoyed by persons entitled to them. Unfortunately, simply observing that no authorities were cited in support, the Court did not bother to consider this submission. Instead, it was satisfied that the impugned provision of the Immigration Act does not violate the Constitution.

.. .we cannot see anything unconstitutional in the provision of Section 13 of the Act which confers power on the Minister to prohibit in his absolute discretion the entry into Nigeria of any person who is not a native of Nigeria or who is not a citizen of Nigeria. ...We are of the view that this Court is clearly not concerned with the reasonableness or unreasonableness of the act of the Minister, and the question does not arise seeing that the Minister had an absolute discretion to prohibit his entry.

The cavalier manner the Court treated the plaintiffs submissions leaves the impression that it does not take the Constitution seriously. The whole point of the plaintiffs case was not that the statute does not purport to invest the Minister with absolute power but that it was not constitutionally sustainable. Despite its obvious urgency, the Court paid no attention to the issue.

The highly deferential-formalist approach that characterized the Court's early rights cases became essentially the established approach to human rights decision-making

[1962] L.L.R. 177 (Udoma J.). [1966] NSCC 209 at 212 [emphasis added].

347 over the next three decades.32 During the late eighties and the nineties, however, a less

deferential approach in administrative review emerged.323 But despite occasional flashes

of progressive interpretation,33 especially from the eighties, the Supreme Court has yet to temper its characteristic formalist mood.34 The practice of the Court reveals unyielding

faith in formal problem-solving techniques, including an unassailable assumption that there is almost always an appropriate dispositive "canon" of interpretation for every problem.35 Experience teaches that far from being dispositive, the canons cannot any more than any other rule provide their own interpretation.

See G. Ezejiofor, "A Judicial Interpretation of Constitution: The Nigerian Experience" in A.B. Kasunmu, ed., The Supreme Court of Nigeria 1956-1970 (Ibadan: Heinemann, 1977) 67-89 [hereinafter Kasunmu, Supreme Court of Nigeria]. 32a See I.E. Sagay, A Legacy for Posterity: The Work of the Supreme Court (1980-1988) (Lagos: Nigerian Law Publications, 1988). 33 Perhaps the most significant example of this is State Security Service v. Agbakoba [1999] 3 NWLR 314 (affirming the right to hold a passport). At the very onset of the eighties, the Court announced a radical departure from its practice in constitutional interpretation in the following often quoted passage: .. .mere technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles of government in the Constitution. And where the question is whether the Constitution has used an expression in the wider or in the narrower sense...this court should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution. ...the approach of this court to the construction of the Constitution should be, and so it has been, one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quam pereat. Nafiu Rabiu v. State (1981) 2 NCLR 293 at 326. Unfortunately, it was never able to translate this attractive rhetoric into practice. The passage itself denies that it is intended to be a departure from the existing practice by falsely suggesting that "the approach of this court.. .has been one of liberalism." 34 See C. Okpaluba, Judicial Approach to Constitutional Interpretation in Nigeria (Enugu: Matt Madek, 1992). 35 The apotheosis of this was Justice Obaseki's so-called "twelve commandments" of constitutional interpretation. See Attorney General ofBendel State v. Attorney General of the Federation (1982) 3 NCLR 1 at 77-78. 36 See H.L.A. Hart, The Concept of Law 2nd ed. (Oxford: Oxford University Press, 1994) at 126. Far from being dispositive, for about every canon, taught Karl Llewellyn, there is a counter-canon. See K.N. Llewellyn, "Remarks on the Theory of Appellate Decision and the Rules or Canons about how Statutes are to be Construed" (1950) 3 Vand. L. Rev. 395 at 401-406.

348 Its severely austere approach to the text of the Bill of the Rights has led the Court to sometimes casually discount the normative force of the explicit language of the guarantees. For example, it rejected a constitutional challenge against an official scheme that prevented workers from establishing independent trade unions without pausing to consider the normative force of the explicit constitutional protection of the right to form trade unions. Nor does the Court seriously consider the general or specific context or structure of the Bill of Rights. A remarkable illustration is Ransome-Kuti v. Attorney

General, where the Court lost a valuable opportunity to apply the general purpose of the

Bill of Rights and of the Constitution as a whole to advance the rule of law. On that occasion it sustained the constitutionality of State immunity in tort at common law, even while admitting that it was an anachronism. Clearly, one would expect that a relic of medieval autocracy is in principle incompatible with the constitutional scheme of the protection of individual rights even without any provision specifically saying so. Instead, astoundingly, the strongest constitutional support the Court found to sustain the claim of immunity is that it was "not able to find any provision which one could apply, even remotely but rightly, in an annulment of this doctrine." The proper judicial role, we are reminded, "is to administer law as it is, and not as it ought to be."39

B. A Captive Court: Human Rights and the Common Law

Ransome-Kuti also reflects another significant limitation of the Supreme Court's approach: a general inability to approach constitutional rights independently of the closed

37 Erasmus Osawe v. Registrar of Trade Unions [1985] 1 NWLR 755. 38 [1985]2N.S.C.C. 879. 39 Ibid, at 899.

349 categories of the common law. This is because until relatively recently the Court had very limited exposure to the work of non-British foreign courts. Like the typical

Commonwealth court, the Supreme Court of Nigeria was very unfamiliar with constitutional bills of rights when it heard its first rights cases at the beginning of the sixties. As we saw in chapter 1, there were only three other constitutional bills of rights in the entire Commonwealth before Nigeria adopted one. Of these other countries, only in

India had a sizeable, though still largely formalistic, rights jurisprudence accreted by

1961. The other two countries offered nothing. (Pakistan's constitution was suspended, while Malaysia's was practically contemporaneous with Nigeria's.) Beyond these there was the quasi-constitutional Canadian Bill of Rights 1960. But it did not add significantly to existing resources. It was indeed not until 1963, two years behind the Nigerian court, that the Supreme Court of Canada first considered any of its provisions. In the event, over the following two decades, that court produced a highly deferential, legalistic rights case law.41 There was already, however, a small but quite impressive "implied bill of rights" jurisprudence it developed in the 1950s.42

American bill of rights jurisprudence and creative constitutional interpretation was practically unknown to the Supreme Court of Nigeria until much later. Except to the

See chapter 1 note 5. 41 See W.S. Tarnopolsky, "The Canadian Bill of Rights: From Diefenbaker to Drybones" (1971) 17 McGill LJ. 437; Weiler, In the Last Resort, supra note 7 at 186-224; B. Hovius, "The Legacy of the Supreme Court of Canada's Approach to the Canadian Bill of Rights: Prospects for the Charter" (1982) 28 McGill L.J. 31. 42 In Chike Obi, supra note 15, for example, the Supreme Court of Nigeria would have benefited greatly from the solution established in Boucher v. R [1951] S.C.R. 265, a case Paul Weiler correctly identifies as "a text-book example of judicial craftsmanship." See Weiler, In the Last Resort, ibid, at 191. See also G. Botting, Fundamental Freedoms and Jehovah's Witnesses (Calgary: University of Calgary Press, 1993) at 52-54. Remarkably, this case was not brought to the Court's attention. This is curious because at this time, the Supreme Court of Nigeria was already quite familiar with Canadian federalism caselaw. Perhaps the explanation is that this caselaw was largely the work of the Privy Council.

350 limited extent of the Canadian implied rights jurisprudence, a legal resource of comparable quality to the American was not available from the British and other

Commonwealth courts. In the absence of a constitutional charter of rights, most of these courts developed very limited rights jurisprudence. Looking beyond the United Kingdom, the institutions of the European Court of Human Rights began developing from the 1970s and 80s a significant, and soon to become highly influential, jurisprudence. It is remarkable that the Supreme Court does not pay any serious attention to this or other similar sources (we shall discuss this further in § 3C below).

The Supreme Court of Nigeria constantly fixed its gaze on and loyally took its direction from the British courts, even though they generally had no cognate experience in bill of rights decision-making. However, the attraction came naturally. Until very recently, all Supreme Court Justices received their legal training partly or, in most cases, wholly in England, where they were immersed in the doctrine of the supremacy of

Parliament and British scepticism of constitutional bills of rights. Acculturated in Dicey-

Jennings legalism, their mindset was more likely than not subversive of constitutional protection of rights.43 Constitutions were seen as not capable of improving on the

4 This, as Nwabueze observed in the seventies, meant many judges were practically unsuited to the task of constitutional bill of rights adjudication. African judges are handicapped by the fact that their education in England and in the techniques of English law has insulated them from the values and needs of their own people. Their minds have become imbued with ideas about the unquestionability of parliamentary legislation under English law and about the perfection and symmetry of the common law as to render them almost incapable of performing effectively the more creative role demanded of them by constitutional adjudication under a written constitution. They are unfamiliar with the constitutional decisions of courts in the U.S. and with the vast literature of American constitutional law, which have greater relevance to the problems that are presented to them than the English decisions which

351 protection of legal rights at common law (or put conversely, and more dangerously: what the common law did not protect necessarily fell outside the protection of a bill of rights).

are their stock-in-trade. See B.O. Nwabueze, Judicialism in Commonwealth Africa: The Role of Courts in Government (London: C. Hurst, 1977) at 311. This observation would surprise no one familiar with instruction provided by English law schools at this time. According to Brian Abel-Smith and Robert Stevens: "Legal philosophy continued to be concerned primarily with linguistic problems involved in the analysis of doctrinal issues.... There was little attempt to discover the fundamental bases of precedent, evidence or statutory interpretation or the role they played in the legal process.... International law was still generally taught independently from international relations and diplomatic history. Constitutional law was still divorced from politics and political science; and administrative lawyers still regarded themselves as having little concern with the problems of the civil service or public administration." See B. Abel-Smith & R. Stevens, Lawyers and the Courts: A Sociological Study of the English Legal System 1750-1965 (Cambridge, Mass.: Harvard University Press, 1967) at 372. The logic of path dependency may therefore be a plausible explanation of the behaviour of the Nigerian Court. For a similar behaviour in the experience of the Supreme Court of Canada during the seventies, see I. Bushnell, The Captive Court: A Study of the Supreme Court of Canada (Montreal & Kingston: McGill-Queen's Press, 1992) at 377-79 (In the 1970s, the "attitude of the judges when it came to the question of the authority of English decisions has been the starkest example of captivity.... It is interesting that no reason was ever given by a judge of the Supreme Court for the overwhelming acceptance of the decisions of English decisions; it simply existed." Ibid, at 378). However, this attitude was not replicated throughout the Commonwealth. The Supreme Court of India, for example, was attracted American constitutional caselaw very early. According to P.K. Tripathi, writing less than a decade into the life of that court, The citation of American judicial opinions is almost a standard, everyday practice in India.... The Supreme Court of India has never discouraged this practice, and the learned judges themselves have shown such marked inclination to refer to American decisions, whenever relevance suggested, that a fairly good knowledge of American constitutional doctrines should be regarded as an essential part of the equipment of any competent Indian Supreme Court lawyer. ...[T]he most cogent references to American law are made in the field of civil liberties. See P.K. Tripathi, "Foreign Precedents and Constitutional Law" (1957) 57 Colum. L. Rev. 319 at 334 [emphasis added]. Similarly, discussing the pattern of citation of foreign cases by the Supreme Court of Canada between 1984 and 1990, Shannon Smithey found, In non-Charter [of Rights and Freedoms] cases, Great Britain is by far the most influential source. In non-Charter decisions, 75.6% citations are to Great Britain. In Charter cases, on the other hand, reliance on Britain drops to 38.2%. Citation to the U.S., on the other hand, takes a dramatic upturn in Charter cases. In Charter cases, the U.S. replaces Britain as the most mentioned exemplar, accounting for 54.2% of all non-Canadian citations. See S.I Smithey, Judicial Adaptation to the Uncertainties of Constitutional Transformation: The Canadian Supreme Court and the Courts of Appeal under the Charter of Rights and Freedoms (Ph.D. Thesis, Ohio State Univ., 1994) at 124 [unpublished] [hereinafter, Smithey, Judicial Adaptation to the Uncertainties of Constitutional Transformation].

352 Not surprisingly, in Sadau v. the State, for example, where admissibility of evidence obtained illegally was challenged, the Supreme Court, citing an English authority,45 declined to consider the possible effect of the constitutional guarantee of respect for everyone's private and family life, home and correspondence. Rather it was sufficient that at common law, a court was only concerned with relevancy, and not with how evidence is obtained. As recently as 1985, one of the leading lights of the Court stated,

"admittedly, the Constitution is the supreme law, but it still subject to the presumption that the makers thereof did not intend to make any change in the existing law beyond that which is expressly stated or which follows by necessary implication from the language of that Constitution."4 On this occasion the Court held that immunity of the Crown at common law from liability in tort applied to the Nigerian government in spite of the

Republican Constitution of 1963 and its Bill of Rights.47

Alone among British courts, the Judicial Committee of the Privy Council had adequate opportunity to hone skills in bill of rights decision-making. Although essentially the House of Lords sitting in another capacity,48 the Council has the unique advantage of serving as final court of appeal for most of the Commonwealth, including several countries, like Nigeria, with constitutional bills of rights.49 But for some time this

44 [1968] 1 All NLR 124. 45 Kuruma v. R. [1955] AC 197 (Privy Council). 46 Ransome-Kutiv. Attorney General, supra note 38 at 918 (Oputa JSC). 47 Of the roughly dozen cases cited, all but one are from English courts. The Court does not consider the reception of the common law immunity in any Commonwealth country. 48 Judges sitting as the Judicial Committee of the Privy Council are usually the Lord Chancellor and the Lords of Appeal in Ordinary, occasionally joined by senior judges of Commonwealth countries that have the Council as their final court of appeal. It might be supposed that given the close affinity of its membership with that of the House of Lords, it was unable to behave differently from other English courts. 49 The bill of rights business of the Council are appeals from independent Commonwealth countries to Her Majesty in Council and appeals from Commonwealth republics to the Judicial Committee. Both

353 jurisdiction remained largely on paper only. The Privy Council in fact did not decide any

significant Bill of Rights case until about a decade after the Supreme Court.50 At any rate,

the severely austere approach of the Council until the eighties meant that its rights

caselaw was in general of limited value.52 Ironically, by the time the Privy Council

finally actively engaged a more progressive rights decision-making, and the citation of its

rights cases by courts and scholars the world over was rising very quickly, its influence

on the Supreme Court of Nigeria had substantially waned.

C. Rights and the Public Interest: The Troubled Transition from Authority to Justification In Amalgamated Press, the Supreme Court announced a concept of "ordered freedom" to justify restriction of rights.53 Never elucidated, this concept remains abstruse and is probably totally unhelpful. It is completely incapable of principled application.

Limitation of rights under the Nigerian Bill of Rights is structurally very similar to the

European Convention's. The Nigerian regime includes both specific and general restriction of rights. Thus, on the one hand, several provisions have their internal

sources have depleted over the years as countries withdraw. Nigeria withdrew in 1963 (see Chapter 4 note 114), and except for Mauritius, no African country allows appeals to the Privy Council any longer. 50 Runyowa v. The Queen [1967] AC 26, [1966] 1 All ER 633, [1966] 2 WLR 877 (Southern Rhodesia Const. Declaration of Rights). 51 See K.D. Ewing, "A Bill of Rights: Lessons from the Privy Council" in W. Finnie, C.M.G. Himsworth & N. Walker, eds., Edinburgh Essays in Public Law (Edinburg: Edinburg University Press, 1991)231-49. 52 See N. Roberts, "The Law Lords and Human Rights: The Experience of the Privy Council in Interpreting Bills of Rights" [2000] Eur. H.R.L. Rev. 147; L. Blom-Cooper & C. Gelber, "The Privy Council and the Death Penalty in the Caribbean: A Study in Constitutional Change" [1998] Eur. H.R.L. Rev. 386. Modern Privy Council rights jurisprudence is directly relevant to Nigeria as it is a result mostly of interpretation of neo-Nigerian constitutional bills of rights of Caribbean countries. (For the reception of the Nigerian Bill of Rights in the Caribbean, see chapter 2 note 3). 53 Supra note 19 at 196: "section 24 of the Constitution relating to Fundamental Human Rights guaranteed nothing but ordered freedom. [T]he Constitution cannot be used as a licence...." (Per Ademola CJF)

354 modifiers (definitional limitations) that qualify specific right guarantees, and a derogation

clause allows suspension of a few rights during war and emergencies.54 On the other is a

general limitation clause, 5 applicable to most rights, permitting laws reasonably

justifiable in a democratic society in the public interest or for the purpose of protecting

the rights of other persons. This part of the limitation regime effectively requires an end-

means justification. The end or purpose of restricting rights is the promotion or protection

of the public interest or the protection of the rights of other persons; the means chosen to

attain that end must be reasonably justifiable, or proportionate, and acceptable in a

democratic society.56

What is remarkable about the public interest limitation under the European

Convention model, followed by Nigeria, is the specification of legitimate public purposes

(defence, public safety, public order, public morality, and public health are mentioned in

the Nigerian text). However, the Nigerian Bill of Rights departs from the European text

This applies to the right to life and to personal liberty (permitting measures that are reasonably justifiable for the purpose of dealing with the situation during the period of emergency). Although a part of the structure of the limitation of rights framework of the Bill of Rights, derogations are not to be confused with limitations. As Yash Ghai defines the terms, limitations provide a framework for striking a balance between the rights of one individual with another's, and with the community. Derogations are the suspension of all or some rights in certain, specified circumstances, on the basis that the higher goals of public order or national security can only be maintained through a stricter regime of authority than would be possible if these rights were to be guaranteed. See Y. Ghai, "Derogations and Limitations in the Hong Kong Bill of Rights" in J. Chan & Y. Ghai, eds., The Hong Kong Bill of Rights: A Comparative Approach (Singapore: Butterworths Asia, 1993) 161. Or put differently, while a restriction prescribed by law may remain in force indefinitely, derogation is essentially a temporary measure limited to the period of emergency. See N. Jayawickrama, The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge: Cambridge University Press, 2002) at 182 [hereinafter Jayawickrama, Judicial Application of Human Rights Law] 55 The European Convention, like the International Covenant of Civil and Political Rights, U.N.G.A. Res. 2200A (XXI), 999 UNTS 171, reprinted in (1967) 6 DLM 368, does not contain a common limitation clause separate from the limitation clauses appended individually to the separate provisions. This was the model followed in the original Nigerian Bill of Rights and the neo-Nigerian bills of rights respectively. With the Nigerian Constitution of 1979, however, a common limitation clause was introduced to the Nigerian text, replacing the separate limitation clauses. 56 See D. Beatty, Constitutional Law in Theory and Practice (Toronto: University of Toronto Press, 1995) at 68 [hereinafter Beatty, Constitutional Law].

355 by substituting "reasonably justifiable" for the latter's "necessary." There was, as we saw in chapter 2, much concern among observers that this would weaken the protection provided by the former.57 Although such apprehension was not necessarily unfounded, this formalist reading of the Nigerian text tended to underrate the potential normative force of the phrase employed by it.

When the Supreme Court announced the "ordered freedom" concept, it was clearly only attentive to the public order interest ostensibly served by the impugned legislation but not whether the particular restriction in the case was reasonably justifiable in a democratic society. Instead it seem to assume that the latter necessarily followed the former. 'It must be justifiable in a democratic society," reasoned the Court, "to take reasonable precautions to preserve public order, and this may involve the prohibition of acts which, if unchecked and unrestrained, might lead to disorder, even though those acts would not themselves do so directly."58 Effectively, non-violent criticism of government is punishable because of a "bad tendency" to rally public opinion against the government.

The Court simply throws out tolerance from the ethos of a democratic society.

Two cases cited to the Court were decisions of the Supreme Court of India striking down similar sedition statutes as unconstitutional infringements of the freedom of expression.59 However, as the Nigerian Court correctly noted, the Indian decisions

57 See chapter 2 §2C. 58 [1961] 1 SCNLR197at207. 59 Romesh Thapper v. State of Madras A.I.R. 1950 S.C. 124, [1950] SCR 594 (striking down the section 9(1A) of the Madras Maintenance of Public Safety Act 1949, pursuant to which a ban was imposed on the circulation, sale and distribution of the English language weekly Cross Roads within the State of Madras). Similarly, in Brij Bhushan v. State of Delhi A.I.R. 1950 S.C. 129, the Court struck down Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi, which provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action

356 seem to have critically depended on the absence (at this time) of a "public order" head

among the permissible public interests for restriction of the freedom of expression under

the Indian Constitution.60 The Nigerian text specifically included public order.

However, the Supreme Court of Nigeria seems to have missed the point of the

cases. The specific heads of the public interests mentioned in the Nigerian text are

without doubt important; any measure restricting rights must be rationally connected to at

least one of them.61 Nonetheless, the critical task is scrutinizing the balance between the

public interest and any means employed by the State to protect or promote it. The

important question is whether the measure or law impugned, even where ostensibly

serving one or another legitimate public interest, is reasonably justifiable in a democratic

is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a printer, publisher or editor require that any matter relating to a particular subject or class of subjects shall before publication be submitted for scrutiny." The censorship regime imposed by the Chief Commissioner of Delhi under this provision on the Organizer, an English language weekly, was therefore held unconstitutional. 60 In Thapper, the Indian Court held, "unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order." [1950] SCR 594 at 602-603. As a result of Thapper and Bhushan, article 19(2) of the Indian Constitution was amended in 1951 to include "public order" among the permissible grounds for reasonable restriction of the freedom of speech and expression. See the Constitution (First Amendment) Act 1951. For a discussion of developments leading to the amendment, see G. Austin, Working a Democratic Constitution: The Indian Experience (New Delhi: Oxford University Press, 1999) at 40-50 [hereinafter Austin, Working a Democratic Constitution]. 61 The text specifies that the restriction is "in the interest of public order, etc. It is accordingly suggested, a restriction is "in the interest of public order only if the connection between the restriction and public order is proximate and direct. Indirect, far-fetched, or unreal connection between the restriction and public order falls outside the language used in the text. See Jayawickrama, Judicial Application of Human Rights Law, supra note 54 at 193 (citing caselaw of the Indian Supreme Court). But this requirement is not to be applied mechanically. The practice of the European Court of Human Rights suggests a liberal approach. See B. Hovius, "The Limitation Clauses of the European Convention on Human Rights: A Guide for the Application of Section 1 of the Charter" (1985) 17 Ottawa L. Rev. 213 at 239 ("This requirement is usually the least contentious aspect of any case involving the application of a limitations clause") [hereinafter Hovius, "The Limitation Clauses of the European Convention"]; F.G. Jacobs, "The 'Limitation Clauses' of the European Convention on Human Rights" in A. de Mestral et al., eds., The Limitation of Human Rights in Comparative Constitutional Law (Cowansville, Que: Yvon Blais, 1986) 21 at 30 ("There has rarely been a dispute over whether a limitation had a recognized aim; usually the issue has been whether the limitation was 'necessary in a democratic society'").

357 society. Even after the Indian text was amended to include a public order exception, the

Indian Supreme Court still found it necessary to "read down" the sedition law to save it.62

Had the Nigerian Court done even as much in Chike Obi, the defendant would almost certainly have been let off, and indeed the sedition offence in the Criminal Code would have been considerably blunted.

To make the proper evaluation of the justification of restriction of rights, the

Court would need to understand the notion of a "democratic society" in terms of the values underlying that kind of society rather than simplistically equating it with the whims of the majority in Parliament, as one of the judges in fact suggested. If constitutional rights could simply be overridden at will by the majority, there would

62 See Kadar Nath Singh v. State of Bihar A.I.R. 1962 S.C. 955, [1962] SCR Supl. (2) 769 (whether ss. 124A and 505 of the Indian Penal Code were voided by Art. 19(l)(a) of the Constitution). The Court said: If we accept [that] the gist of criminality in an alleged crime of sedition [is] incitement to disorder or tendency or likelihood of public disorder or reasonable apprehension thereof, the section may lie within the ambit of permissible legislative restrictions on the fundamental right of freedom of speech and expression. There can be no doubt that apart from the provisions of (2) of Art. 19, ss. 124A and 505 are clearly violative of Art. 19(l)(a) of the Constitution. ...Any law which is enacted in the interest of public order may be saved from the vice of constitutional invalidity. If, on the other hand, we were to hold that even without any tendency to disorder or intention to create disturbance of law and order, by the use of words written or spoken which merely create disaffection or feelings of enmity against the Government, the offence of sedition is complete, then such an interpretation of the sections would make them unconstitutional in view of Art. 19(l)(a) read with cl. (2). ...It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order. See [1962] SCR Supl. (2) 769 at 808-809. For a critique, see R.K. Misra, "Freedom of Speech and the Law of Sedition" (1996) 8 J.I.L.I. 117 (arguing that the court should have struck down the law outright). 63 Supra note 15 at 208-209 (Brett F.J. suggested that a law supported by majority in Parliament is for that fact reasonably justifiable in a democratic society).

358 hardly be any point in specially securing rights. Similarly, gratuitous or excessive

interference with the exercise of rights cannot be reasonably justifiable, certainly not in a

democratic society. 5 This indicates a norm of proportionality, or a reasonable balance,

between the public interests and the means chosen to protect them. Originally a concept

of German and European law, proportionality has emerged as a universal principle of public law, a standard for reasonableness of restriction of rights and, in general, moderation in exercise of the public power.68 Accordingly, proportionality tests are applied by national courts, from Australia69 and Canada70 to South Africa,71 Tanzania,

Ronald Dworkin put it quite starkly: "The existence of rights against the Government would be jeopardized if the Government were able to defeat such a right by appealing to the right of a democratic majority to work its will. A right against the Government must be a right to do something even the majority thinks it would be wrong to do it, and even when the majority would be worse off for having it done." See R. Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977) at 194. 65 What is reasonably justifiable in a democratic society, the Supreme Court of Zimbabwe has stated, "defies precise definition by the courts. There is no yardstick, save that the quality of reasonableness of the provision under attack is to be adjudged on whether it arbitrarily or excessively invades the enjoyment of the guaranteed right according to the standards of a society that has a proper respect for the rights and freedoms of the individual." See Wood v. Minister of Justice, Legal & Parliamentary Affairs 1995 (1) SA 703. 66 See N. Emiliou, The Principle of Proportionality in European Law: A Comparative Study (Dordrecht: Kluwer, 1996) c. 2 [hereinafter Emiliou, Principle of Proportionality]. 67 "Proportionality is a universal criterion of constitutionality. It is an essential, unavoidable part of very constitutional text. ...The idea that a constitution could exist without some standard of proportionality is a logical impossibility. It serves as an optimizing principle that makes each constitution the best it can possibly be." D.M. Beatty, The Ultimate Rule of Law (Oxford: Oxford University Press, 2004) at 162-63. For a discussion of proportionality, see ibid, at c.5. 68 "However it is defined, in all its formulations, it is all about moderation and mutual respect from beginning to end. As a general principle, proportionality tells governments and their officials that they have to have stronger and more compelling reasons for decisions that inflict heavy burdens and disadvantages on people than when the infringements of rights and liberties are not as serious or painful." Beatty, ibid, at 163-64. See also Emiliou, Principle of Proportionality, supra note 66 at 1 ("Proportionality embodies a basic concept of fairness which has strengthened the protection of individual rights at both the national and supranational level."). 69 See J. Kirk, "Constitutional Guarantees, Characterisation and the Concept of Proportionality" (1997) 21 Melb. U. L. Rev. 1 [hereinafter Kirk, "Concept of Proportionality"]. 70 See R. v. Big M Drug Mart Ltd [1985] 1 S.C.R. 295 at 352 (stating that "a form of proportionality test" is required to assess whether the means chosen to achieve government objectives are reasonable); and especially R v. Oakes [1986] 1 S.C.R. 103 (establishing the definitive proportionality test for application of S. 1 of the Canadian Charter of Rights). The Oakes proportionality test "has taken on some of the character of holy writ." See P.W. Hogg, Constitutional Law of Canada student ed. (Scarborough, Ont: Carswell, 2002) at 779 [hereafter Hogg, Constitutional Law].

359 and Zambia. So also are the European Court of Human Rights and the African

Commission on Human and Peoples' Rights,74 among other international tribunals. In

fact, proportionality is broadly embraced by courts around the world.75 Interestingly,

while proportionality tests have been applied to neo-Nigerian Bills of Rights in the

Caribbean76 and Africa77 respectively, and one was actually suggested very early by the

Northern Nigeria High Court,78 the Supreme Court of Nigeria has never considered any.

In its "pure" form, the concept of proportionality is a tripartite test of suitability,

necessity, and balancing (or proportionality in its narrow sense). That is, respectively, a

rational connection between means and end; least restrictive means ("minimum

impairment"); and the restriction, or detriment caused, does not outweigh the importance

of the public interest or the beneficial effect of the restriction.79 Using this benchmark,

State v. Makwanyane [1995] 3 SA 391 at para. 104 (CC). 72 Pumbun v. Attorney General [1993] 3 LRC 317 at 323 (Tanzania Ct. of Appeal); Mulundika & ors v. People [1995-1997] Zambia L.R. 20 at 27 (Zambia S.C.). 73 See Sunday Times v. United Kingdom (1979-80) 2 E.H.R.R. 245. 74 See Media Rights Agenda & Constitutional Rights Project v. Nigeria (2000) 7 LHRR 265 at para 42. For discussion, see G. Naldi, "Limitation of Rights under the African Charter on Human and Peoples' Rights: The Contribution of the African Commission on Human and Peoples' Rights" (2001) 17 S. Afr. J. Hum.Rts. 109 [hereinafter Naldi, "Limitation of Rights under the African Charter"]. 75 See Beatty, Constitutional Law, supra note 56 at 103-140. 76 See Elloy de Freitas v. Permanent Secretary of Ministry of Agriculture [1999] 1 A.C. 69 at 80 (Antigua) (Privy Council). 77 See Nyambirai v. National Social Security Authority [1996] 1 L.R.C. 64 at 75; Retrofit (Pvt.) Ltd. v. Posts and Telecommunications Corporation [1995] 9 B. Const. LR 1262 (Zimbabwe); Mulundika, supra note 72 (Zambia). 78 Cher and v. Cher and [ 1960] N.R.N.L.R. 24. 79 Variations of the proportionality test applied by national courts sometimes confuse the requirements. There is an evident disconnect between the Oakes proportionality test (supra note 70), for example, and the European doctrine of proportionality, from which it is mainly derived (for European pedigree of the Oakes test, see RJ. Sharpe & K. Roach, Brian Dickson: A Judge's Journey (Toronto: University of Toronto Press, 2003) at 334). Closely reading the language of the Supreme Court of Canada, as well as the application of the Oakes test, Professor Hogg dismisses as practically redundant two of the three arms of the test — rational connection and proportionate effect (balancing). See Hogg, Constitutional Law, supra note 70 at 793, 802. In contrast, he considers the "least drastic means" (necessity) test as "the heart and soul" of the Oakes test. Ibid, at 795. Also, Trakman, Cole-Hamilton and Gratien found that "the proportionate effects test plays a wholly vestigial role within section 1 decisionmaking." Their survey of

360 even if the impugned provisions of Nigeria's Criminal Code in the freedom of expression cases have a rational connection with promotion of public order, as the Supreme Court supposed, punishing as sedition a non-violent political speech by a politician or a publication by a newspaper of false news is clearly excessive and grossly disproportionate. Striking down a similar Public Order Law provision of Antigua and

Barbuda, Lord Bridge of Harwich observed,

In a free and democratic society it is almost too obvious to need stating that those who hold public office in government and who are responsible for the public administration must always be open to criticism. Any

the occasions on which either a majority or minority of the Supreme Court of Canada applied the Oakes test found that in every instance, where "the minimal impairment test was passed, the proportionality test was passed. In every instance that the minimal impairment test was failed, the proportionality test was either failed or not considered." See L.E. Trakman, W. Cole-Hamilton & S. Gratien, "R. v. Oakes 1986- 1997: Back to the Drawing Board" (1998) 36 Osgoode Hall LJ 83 at 103. In the European perspective, however, balancing should be at the heart of any proportionality test. See Kirk, "Concept of Proportionality," supra note 69 at 8. The principle of balancing, or proportionality of the effects of a restriction, expresses the essence of the concept of proportionality. The principle is: "the permissible level of non-satisfaction of, or detriment to, one principle depends on the importance of satisfying the other." See R. Alexy, A Theory of Constitutional Rights, trans. J. Rivers (Oxford: Oxford University Press, 2002) at 102. Alexy illustrates its application with a German Constitutional Court decision that a requirement for tobacco producers to place health warnings on their products respecting the dangers of smoking is a minor or relatively light interference with the constitutional freedom to pursue one's profession. But a total ban on all tobacco products would count as a serious interference. As he explains it, The first stage involves establishing the degree of non-satisfaction of, or detriment to, a first principle [freedom to pursue one's profession]. This is followed by a second stage in which the importance of satisfying the competing principle is established [health risks of smoking]. Finally, in the third stage, it is established whether the importance of satisfying the latter principle justifies the detriment to or non-satisfaction of the former. ...The health risks resulting from smoking are great. The reasons justifying the interference, therefore, weigh heavily. If in this way the intensity of the interference is established as minor, and the degree of importance of the reasons for the interference as high, then the outcome of examining proportionality in the narrow sense may well be described — as the German Federal Constitutional Court, in fact, described it, — as "obvious." See R. Alexy, "Balancing, Constitutional Review, and Representation" (2005) 3 Int'l J. Const. L. 574-75 [hereinafter Alexy, "Balancing"].

361 attempt to stifle such criticism amounts to political censorship of the most insidious and objectionable kind.

In the freedom of expression cases, as well as the subsequent practice of the

Supreme Court of Nigeria, balancing of individual rights and the public interest is not transparent. The human rights caselaw of the Court does not provide any principled means for determining the respective normative weight of competing individual rights or of rights relative to the public interest.81 A principal function of a proportionality test is principled balancing. To the extent that this is possible, the particular interpretive practice of a court becomes of secondary importance. 83

80 Hector v. Attorney-General of Antigua and Barbuda [1990] 2 A.C. 312 at 315, [1991] LRC (Const.) 237, 240 (Privy Council) (newspaper editor charged with printing or distributing a false statement "likely to cause fear or alarm in or to the public, or to disturb the public peace, or to undermine public confidence in the conduct of public affairs"). See also Zundel v. R. [1992] 2 S.C.R. 731 (Supreme Court of Canada) (striking down a Canadian Criminal Code provision on wilful publication of lies likely to cause injury or mischief to the public interest). 81 Since the limitation clause of the Bill of Rights permits restriction of rights not only in the public interest but also for the purpose of protecting the rights of others, implicitly, the normative weight of any particular right depends on whether its restriction is in the public interest or simply for the sake of protecting competing rights. Unlike the public interest which may trump individual rights, balancing conflicting rights must recognize their equal status (assuming all rights are equal). This difference is captured in the concepts of vertical and horizontal balancing respectively. Horizontal balancing occurs between values and principles of equal standing. This balancing will happen, for example, when two constitutional human rights conflict with one another. Thus, the freedom of speech may conflict with the rights of privacy, reputation, or movement. Horizontal balancing expresses the degree of reciprocal compromise that each of the fundamental principles must make.... The vertical balancing formula determines the conditions under which certain fundamental principles take precedence over others. This balancing occurs, for example, when a human right is not fully protected because of the need to balance it with a state interest, such as public peace or public order. Vertical balancing does not determine the boundaries of the right that is being infringed; rather, it determines the degree of protection that the legal system affords a given right. See A. Barak, The Judge in a Democracy (Princeton, N.J.: Princeton University Press, 2006) at 171-72. See also Barak, Purposive Interpretation, supra note 12 at 180-81. 82 For a defence of the rationality and objectivity of balancing, see Alexy, "Balancing," supra note 79. 83 See D. Beatty, "Human Rights and the Rules of Law" in D. Beatty, ed., Human Rights and Judicial Review: A Comparative Perspective (Dordrecht: Martinus Nijhoff, 1994) 1 at 21 ("When

362 The dangerousness of the Supreme Court's undisciplined ad hoc balancing, quite

evident in the freedom of expression cases, becomes shockingly glaring in Badejo v.

Federal Minister of Education. A young girl, suing through her father, challenged the

admission policy established by the Ministry of Education for federal government owned

secondary schools. She claimed that the policy's equity admission criterion

unconstitutionally discriminated against her because she would otherwise have qualified

for admission if merit was the sole criterion. The claim was dismissed by the Supreme

Court. To accept it, stated Justice Kutigi, "would amount to putting the entire Federal

Republic of Nigeria at the mercy of one aggrieved individual. A case of total

'brutalization' of the people's fundamental right when compared with an infringement of

the appellant's fundamental right. That to me would again amount to a subversion."85

Nowhere are we told what the "people's fundamental right" is. Whatever it is, what is

obvious is that the judge did not even see any purpose in balancing it against the

appellant's explicit constitutional right. The tone of priority of the collective interest

underlying the statement is completely subversive of the protection of individual rights.

As Ronald Dworkin explains,

If we now say that society has a right to do whatever is in the public benefit, or the right to preserve whatever sort of environment the majority wishes to live in, and we mean that these are the sort of rights that provide justification for

constitutional bills of rights are understood in this way, the role of the courts will come to be seen in a quite different light. Rather than being primarily an interpreter of a constitutional text, the judicial function becomes one of evaluating the particular policy chosen by the lawmakers to accomplish their objectives and asking whether it could have been formulated in a more sensitive, less discriminatory way. ...Issues of justification not interpretation are what judges struggle to resolve." [Emphasis added]). 84 [1996J8NWLR15. 85 Ibid, at 41.

363 overruling any rights against the Government that may conflict, then we have annihilated the latter rights86

Proportionality test apart, the present practice of the Supreme Court of Nigeria on use of legislative facts significantly weakens its ability to effectively balance the public and individual interests.87 As Seidman reminds us, "absent legislative facts, courts will draw upon their acculturated perceptions of the world - their domain assumptions - as the data upon which to base decisions."88 We find this amply illustrated by Osawe*9 where the Supreme Court, without any evidence, used prevention of wild-cat strikes to justify refusing to interfere with the discretionary power of the Registrar of Trade Unions to register a trade union. This notwithstanding the explicit constitutional right of workers to establish trade unions for the protection of their own interests. No evidence whatsoever was placed before the Court that the law empowering the Registrar to refuse registration actually served that purpose or had the effect of preventing wild-cat strikes. Even if the evidence was there, the Court would still have to make a specific determination as to whether the power or its exercise in the circumstances was disproportionate or otherwise.

In conclusion, in the sixties, the Supreme Court lost the opportunity to apply emerging constitutional standards to the Criminal Code, a statute reflecting, almost wholesale, Victorian criminal justice and values. The Court's reticence effectively

Dworkin, Taking Rights Seriously, supra note 64 at 194. 87 See B. Wilson "Decision-Making in the Supreme Court" (1986) 36 U.T.L.J. 227 at 243 (urging using evidence of legislative facts in Charter of Rights decision-making by the Supreme Court of Canada); C.P. Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism 2nd ed. (Don Mills, Ont.: Oxford University Press, 2001) at 157 ("Extensive reliance on legislative facts is absolutely required by section 1 [of the Canadian Charter of Rights and Freedoms] and the criteria established for its application in Oakes. Indeed, it is precisely the 'expediency or likely success of a particular policy' that is reviewed under the proportionality element of the Oakes test") 88 R.B. Seidman, "Judicial Review and Fundamental Freedoms in Anglophonic Independent Africa" (1974) 35 Ohio St. L.J. 820 at 837 [hereinafter Seidman, "Judicial Review and Fundamental Freedoms."] 89 [1985] 1NWLR 755.

364 legitimized a mechanism whose objective and practical effect during colonial rule was to

stifle political dissent.90 A legacy of this initial reticence of the Court is that the sedition

and false news provisions of Criminal Code remain unreformed, four decades after the

freedom of expression cases. '

II. BEHIND THE PURPLE CURTAIN: INSTITUTIONAL

LEGITIMACY AND CONSENSUAL DECISION-MAKING

A. Limited Collegiality: The Rise of Individual Opinions

Although the Supreme Court of Nigeria was originally a colonial court, it did not follow the seriatim opinion practice of English courts. Instead, it adopted the model of

institutional opinion used by its immediate predecessor, the West African Court of

Appeal. Separate individual opinions were very limited. This practice was closer to the then prevailing, single-opinion, practice of the Privy Council, at that time the final court of appeal for Nigeria, than that of the House of Lords. Despite initial consistency, the opinion-writing practice of the Supreme Court was evolving. Individual opinions grew in

For an account, see chapter 1 note 150. 91 The constitutionality of the sedition law has been challenged several times before lower courts. In 1983, the law was in fact struck down by the Court of Appeal. See State v. Arthur Nwankwo & anor. [1985] 6 NCLR 228. But the Supreme Court has never had occasion to reconsider Obi. The lower court in Nwankwo was unable to rationalize why Obi was not a controlling precedent. Although technically the Supreme Court on that occasion was applying the provisions of an earlier constitution, the text of the freedom of expression guarantee is the same in that and later Nigerian constitutions. Unfortunately, the Court of Appeal ruling has not affected the administration of the sedition law. In fact, when the revised Laws of the Federation of Nigeria 1990 were published, the sedition provision was retained in the Criminal Code in precisely the form that was ruled unconstitutional by the Court of Appeal. The facts of Nwankwo are similar to Chike Obi: a book containing a vituperative attack against a State Governor, including allegations of abuse of office and public finances, was published by members of an opposition political party. The defendants were convicted of sedition. The trial judge concluded that the statements in the book are "a long way from the legitimate bounds of free speech and criticism of government." The Court of Appeal took a very different view. "To retain s. 51 of the Criminal Code in its present form," said the Court, "that is, even if not inconsistent with freedom of expression guaranteed by our constitution, will be a deadly weapon and to be used at will by a corrupt government or a tyrant. ...Those who occupy sensitive posts must be prepared to face public criticisms in respect of their office so as to ensure that they are accountable to the electorate." See [1985] 6 NCLR 228, 262-53 (per Olatawura JCA)

365 number and frequency over time. By the end of the seventies the practice had completely

shifted from institutional opinions to individual opinions. The emerging practice of

separate opinions was formally constitutionalized in 1979:

Each Justice of the Supreme Court or of the Federal Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion: Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered, and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.92

It is not clear why this constitutional intervention was necessary. However, throughout the 1970s, there was growing pressure from the legal profession against the

use of institutional opinions by the Supreme Court. The general conference of the

Nigerian Bar Association in 1972 recommended that the practice should be abandoned

and the Justices should write individual opinions instead.

Nigeria Const. 1979, s. 258(2). For the present constitution, see Nigeria Const. 1999, s. 294(2). 93 A.B. Kasunmu, "The Supreme Court of Nigeria: An Examination of its Composition and Functions" in Kasunmu, Supreme Court of Nigeria, supra note 32 1 at 49 [hereinafter Kasunmu, "Supreme Court of Nigeria"]. The author notes that reasons for the recommendation "are far from clear." But there was the belief by many that the Chief Justices were somehow intolerant of, if not actively suppressing, dissent (discussed below). Thomas Jefferson famously rejected use of institutional opinions for the same reason: "an opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with silent acquiescence of lazy or timid associates, by a crafty chief judge, who sophisticates the law to his mind, by the turn of his own reasoning." Thomas Jefferson, "Judicial Subversion," Jefferson to Thomas Ritchie, Monticello, Dec. 25, 1820, in Letters (Raleigh, N.C.: Alex Catalogue, 1996) 621, http://www. netLibrarv.com/urlapi. asp?action=summary&v=l&bookid=1085925 (accessed 2 February 2003). Jefferson's case against abandonment of seriatim opinions by the Marshall Court was, in part, because some cases are "of such importance, of such difficulty, and the decisions so grating to a portion of the public as to have merited the fullest explanation from every judge seriatim, of the reasons which had produced such convictions on his mind. It was interesting to the public to know whether these decisions were really unanimous, or might not perhaps be of 4 against 3 and consequently prevailing by the preponderance of one voice only. The Judges holding their offices for life are under two responsibilities only. 1. Impeachment. 2. Individual reputation. But this practice [institutional opinion] completely withdraws them from both." See Jefferson, "Seriatim Opinions and the History of Parties," Jefferson to William Johnson, Monticello, October 27, 1822, ibid. 632 at 633.

366 The present proliferation of individual opinions in the Supreme Court closely

approximates in appearance to seriatim opinions, except that in almost every case, one of

the Justices is assigned to write ("lead judgment") for the Court, or for the majority,

where there is a division. Notwithstanding, there is typically as many individual opinions

as there are Justices on a panel. Individual opinions have not simply proliferated; they

have also become increasingly lengthy, sometimes longer than the opinion for the Court.

Because it is the latter that is authoritative,94 the separate opinions do not enjoy the status

of seriatim opinions in the English practice. 5 In Supreme Court cases, separate opinions

serve very little purpose. They are repetitive and mainly redundant. Their cluttering effect

produces a haphazard system of individual and group performances, to use Laskin's

characterization of the state of the Canadian Supreme Court at the middle of the last

96 century.

Equally importantly, the sheer number and repetitiveness of individual opinions

raise doubt as to the depth of consultation between the Justices in drafting the opinion for

See Abacha v. Fawehinmi [2000] 6 NWLR (pt. 660) 228, 323: "it is the ratio or rationes in the leading judgment that constitutes or constitute the authority for which the case stands. All other expressions contained in the concurring judgments, particularly those not addressed in the leading judgment are obiter dictum or dicta." Per Achike JSC. It is not clear that this has always been the norm. An interesting example is Adesanya v. President [1981] N.S.C.C. 146, a textbook plurality decision. On the most important question, standing required for constitutional challenges, the position taken in the Chief Justice's opinion for the Court was clearly a minority. In fact, it was Justice Bello's separate opinion instead that was subsequently accepted as the clearest statement of the principle in the case. But the better view is that his position was not supported by a majority either. See T.I. Ogowewo, "Wrecking the Law: How Article III of the Constitution of the United States Led to the Discovery of a Law of Standing to Sue in Nigeria" (2000) 26 Brook. J. Int. L. 527 at 554-60. See further Chapter 4 note 196 and accompanying text in the present study. 95 For the equal status of English seriatim opinions, see Lord Reid in Gallie v. Lee [1971] AC 1004 at 1015 (the ratio of a decision is extrapolated from a comparison of the opinions in the case). 96 B. Laskin, "The Supreme Court of Canada: A Final Court of and for Canadian" (1951) 29 Can. Bar Rev. 1038 at 1048. See also E. McWhinney, "Judicial Concurrences and Dissents: A Comparative View of Opinion-writing in Final Appellate Tribunals" (1953) 31 Can. Bar Rev. 595 (comparison of the practice of Commonwealth courts with the U.S. Supreme Court's).

367 the Court. Under the present practice, Wednesdays are set aside for conference. Until recently, very little was known outside the Court about how the Justices interact during conferences. What we now know about how the sessions are conducted closely resembles the practice of the supreme courts of the United States and Canada,97 among others.

According to Justice Oputa's account of the Wednesday conferences,

Each Justice will read his record thoroughly; study his record book properly, undertake the necessary research, and then come to the conference ready to expound, and what is even more, defend his views and conclusions on the various issues raised in the appeal. His colleagues will take down in writing the points he has made and the cases on which he relied. He is normally not interrupted when he is making his contribution. At the end of the exercise he then states whether he will allow or dismiss the appeal. After this, his colleagues will then ask him questions. At this stage every Justice keeps an open mind. The youngest member (in terms of seniority) usually starts. The process is then repeated by other Justices in an ascending order of seniority up to the Presiding Justice. ...At the end of the conference and if there exists unanimity of views then one Justice is assigned the task of putting up a draft lead judgment. This draft is then circulated to other Justices "for favour of their QO observations and comments."

If there is sufficient consultation between the Justices in drafting the opinion of the Court, as it appears from this account," we should expect fewer separate opinions.

97 See W.H. Rehnquist, 77je Supreme Court New ed. (New York: Alfred A. Knopf, 2001) 252-59; D.M. O'Brien, Storm Center: The Supreme Court in American Politics 6th ed. (New York: W.W. Norton, 2003) 257-67; I. Greene, et al., Final Appeal: Decision-making in Canadian Courts of Appeal (Toronto: Lorimer & Co., 1998) at 119-26 [hereinafter Greene, Final Appeal]. 98 See C. Oputa, "Towards Greater Efficiency in the Dispensation of Justice in Nigeria" in Y. Akinseye-George, ed., Law, Justice & Stability in Nigeria: Essays in Honour of Justice Kayode Eso (Ibadan: J. Shalom Multiserve Bureau, 1993) 1 at 43-44 [hereinafter Oputa, "Dispensation of Justice in Nigeria"]. 99 Abacha, note 94 supra at 352, provides rare evidence of switch of votes during the drafting stage. In his separate opinion, Justice Uwaifo disclosed that Justice Achike's opinion for the Court was only partially supported by the majority:

368 The present proliferation of individual opinions is sheer waste of judicial energies. As it is also highly burdensome, especially as the Justices are not supported with research assistants, the present practice appears counterintuitive. But perhaps, as we suggest below, separate opinions sometimes function as subterfuge for disagreement.

B. The Dynamics of Consensus Norm: Accounting for Strategic and Non-Formal Dissensus

"Our Supreme Court," writes former Justice Oputa, "never opposed dissent."100 Yet, the plain fact is that formal dissent is very rare on the Court.101 On the average, the Court is divided in less than one per cent of cases annually. Several years pass without a single dissent recorded. The individual record of the Justices may be illustrated with Justices

Eso and Obaseki's. The former is a reputed activist judge; the other, a conformist. Yet their respective record of dissent is hardly dissimilar. They dissented in less than one tenth of one per cent of cases they participated in during their twelve and sixteen years respectively on the Supreme Court (see Tables 4.2.1 and 4.2.2 respectively). Eso dissented in only four of four hundred and sixty cases or 0.86 per cent. Obaseki was even

The judgment of my learned brother Achike JSC which I had the privilege of reading in advance expresses the consensus view on the appeal. But the dismissal arrived at by him of the cross-appeal, the reasons for which I respectfully acknowledge he has painstaking stated in the clearest possible manner, was initially a majority position while on the other hand I held a minority view to allow the cross-appeal. After I made a draft of this judgment available, it appeared the merit of the cross-appeal became crystal clear and so the majority view emerged in favour of allowing the cross-appeal. 100 Oputa, "Dispensation of Justice in Nigeria," supra note 98 at 46. 101 Kasunmu, "Supreme Court of Nigeria," supra note 93 at 48; M.O.A. Alabi, The Supreme Court in the Nigerian Political System; 1963-1997 (Ibadan, Demyaxs Press, 2002) at 204 [hereafter Alabi, Supreme Court and Political System].

369 much less likely to dissent. He did so just twice throughout his career on Court, or 0.3 per cent of the six hundred and fifty-eight cases he participated in.102

If rate of dissent is a reliable indicator of conflict on a court, there would seem to be a remarkably high level of consensus in the Supreme Court. Several structural and institutional explanations have been offered for why some appellate collegial courts have low rates of dissent. George Gadbois' analysis of declining dissent on the Indian Supreme

Court103 is an important study of the incidence in a non-western court. It is interesting to compare his findings and speculations with the experience of the Nigerian Supreme

Court. During its first seventeen years (ending 1967), 8.4 per cent of the decisions of the

Indian court was non-unanimous. But during the following fifteen years, the rate fell as low as 2.1 per cent or a quarter of the rate during the earlier period. Gadbois identifies the declining dissent as partly a function of the business of the Indian Supreme Court. In particular, he argued that because the court had fewer occasions to exercise its constitutional jurisdiction or to adjudicate constitutional issues generally, an importance source of disagreement is minimized.104 In addition, a very large caseload meant that

See A. Olarewanju, et al., Justice Eso: Supreme Court Years, 1978-1990 (Lagos: Nigerian Law Publishers, 1990); A. Olarewaju, et al., Justice Obaseki: Supreme Court Years, 1975-1991 (Lagos: Nigerian Law Publishers, 1991). Writing as recently as the eighties, a former chief justice praised Sir Lionel Brett, who retired from the Court in the sixties, as "one of the very few justices of the court ever to write a dissenting judgment." See Fatayi-Williams, Faces, Cases and Places (London: Butterworths, 1983) at 95 [emphasis added]. 103 G.H. Gadbois, "The Decline of Dissent on the Supreme Court, 1950-1981" in R.A. Sharma, ed., Justice and Social Order in India (New Delhi: Intellectual Publishing House, 1984) 235-59 [hereafter Gadbois, "Decline of Dissent"]. Cf. D.R. Songer, "Factors Affecting Variation in Rates of Dissent in U.S. Courts of Appeal" in S. Goldman & CM. Lamb, eds., Judicial Conflict and Consensus: Behavioral Studies of American Appellate Courts (Lexington: University of Kentucky, 1986) 177-138 [hereinafter Goldman & Lamb, Judicial Conflict and Consensus]. 104 Ibid, at 241-43.

370 there was now less time available for dissent. Neither of these factors may be particularly relevant for Nigeria. While the constitutional docket of the Supreme Court of

Nigeria is small, disagreement is not any higher there than in its other business. Secondly, caseload pressure can hardly be blamed for depressing dissent because individual opinions have proliferated.

Gadbois also considers two possible structural constraints on dissent in the Indian court. During the earlier period, 82.2 per cent of all decisions was made by panels composed of either three or five judges. During the recent period, 87.5 per cent of all decisions was by panels of two or three judges. Dissent appears to have decreased as the court used smaller panels to decide more cases.10 This corresponds with conventional wisdom established in the literature on small groups.1 7

Unlike the Indian Court, the panel size of the Nigerian Supreme Court has in fact grown from three to five. If size was a critical explanation, we should expect to find increasing disagreement with the enlarged panel. This in fact is not so. The dissent rate has been practically constant. It is particularly significantly that the dissent rate on the seven judge constitutional panel is not any higher than on the regular five-judge panel.

Gadbois also suggested that an important factor in the dissent rate in India is panel assignment by the chief justice, who supposedly strikes panel with the aim of avoiding

105 Ibid, at 249. See also B. Laskin, "The Institutional Character of the Judge" (1972) 7 Israel L.R. 329 at 339 ("If the case load is heavy, the tendency will be forjudges to concentrate their limited time and energy on opinions assigned to them; and to show generous institutional faith in opinions in other cases prepared by others...."). 106 Ibid, at 240. 107 See B.M. Atkins, "Judicial Behavior and Tendencies towards Conformity in Three Member Small Group: A Case Study of Dissent Behavior on the U.S. Court of Appeals" (1973) 54 Social Sci. Q. 41.

371 conflict. If this explanation was valid with the Nigerian Court, there should a significant difference in the dissent rate on the constitutional panel, which is struck ad hoc by the Chief Justice, than with the semi-permanent regular panels. This again is not so.

Beyond panel assignment, however, a chief justice may employ various strategies to secure consensus. The central role of judicial leadership in building consensus is well established in American literature.10 In the Nigerian Court during the sixties and seventies, Chief Justices were alleged to muzzle dissent. This was serious enough to prompt the resolution of the Nigerian Bar Association mentioned above. Although the extent of the problem was never clear, there is evidence from within the Court of pressure from the centre chair. It is known that Chief Justice Elias was regarded by his colleagues as somewhat intolerant of dissent.11 But whatever the true situation may have been during the Court's first two decades, intolerance apparently declined significantly by the end of the seventies when Fatayi-Williams took the centre chair. He openly professed the

108 Gadbois, "Decline of Dissent," supra note 103 at 244-47. 109 See W.F. Murphy, Elements of Judicial Strategy (Chicago & London: University of Chicago Press, 1964) at 82-90; B. Schwartz, Decision: How the Supreme Court Decides Cases (New York: Oxford University Press, 1996); D.J. Danelski, "The Influence of the Chief Justice in the Decisional Process of the Supreme Court" in J.B. Grossman & R.S. Wells, eds., Constitutional Law and Judicial Policy Making 2nd ed. (New York: John Wiley, 1980); S.L. Haynie, "Leadership and Consensus on the U.S. Supreme Court" (1992) 54 J. Politics 1158; T.G. Walker, L. Epstein & WJ. Dixon, "On the Mysterious Demise of Consensus Norms in the United States Supreme Court" (1988) 50 J. Politics 361. 110 See Fatayi-Williams, Faces, Cases and Places, supra note 102 at 135 ("Having been the Attorney General of the Federation for so long, Dr. Elias, however, found it rather difficult to accept and absorb dissent from his colleagues on the Supreme Court Bench."). The Chief Justice never hid his distaste for separate opinions. In his view, "how it is ever thought that open expression of disagreements on unimportant issues in a case in the final court of appeal are more conducive to the development of the law than the certainty of the law coherently expressed in one united view of a case on appeal after a careful debate in camera of all the relevant viewpoints, is hard to see." T.O. Elias, "How the Supreme Court Works," an address to the Midwest Public Service Forum, 12 October 1973, quoted in Kasunmu, "Supreme Court of Nigeria," supra note 93 at 49-50.

372 right of every member of the Court to his own position. a The impact of the changing philosophy is indicated by the rapid growth of individual opinions. Yet, the dissent rate remained practically constant.

Whatever the merits of Gadbois's speculations on dissent, the critical element in the limited overt disagreement in the Nigerian Supreme Court is probably a well- established norm of consensus.111 An emergent court, short in political capital, is very likely to be acutely conscious of the urgency to consolidate its power by speaking with a united voice. This norm is independent of the attitude of any particular Chief Justice to dissent, although by no means inconsistent with it. Justice Udoma alluded to a consensus norm to justify his surprising silent concurrence in Lakanmi, not coercion by the Chief

Justice. Even though he disagreed with his colleagues during the conference, Udoma claims he did not dissent because of "the then established practice that the Court must be unanimous."113 This substantially remains the norm. Perhaps as a result of this, building

a In his memoirs, he stated his attitude as follows, each justice is an individual in his own right with the constitutional right to come to his own deliberate judgment while performing his judicial duties. ...As no justice is subordinate to the Chief Justice or to another justice in this respect, each one of us is free to dissent from the individual or collective views of others. See Fatayi-Williams, ibid, at 98, 135. 111 See L. Epstein, J.A. Segal & H.J. Spaeth, "The Norm of Consensus on the U.S. Supreme Court" (2001) 45 J. Politics 362; G.A. Calderia & C.J.W. Zorn, "Of Time and Consensual Norms in the Supreme Court" (1998) 42 Am. J. Pol. Sci. 874; D.M. O'Brien, "Institutional Norms and Supreme Court Opinions: On Reconsidering the Rise of Individual Opinion" in C.W. Clayton & H. Gillman, Supreme Court Decision-Making: New Institutionalist Approaches (Chicago: University of Chicago Press, 1999) 91 [hereinafter Clayton & Gillman, Supreme Court Decision-Making]. For the rise and decline of per curiam opinions, the quintessential consensual judicial expression, in the U.S Supreme Court, see S.L. Wasby, et al., "The Per Curiam Opinion: Its Nature and Functions" (1992) 76 Judicature 29; L.K. Ray, "The Road to Bush v. Gore: The History of the Supreme Court's Use of Per Curiam Opinion" (2000) 79 Neb. L. Rev. 517. 112 Lakanmi v Attorney General, [1970] N.S.C.C. 143, (1971) 1 UILR 201. 113 U. Udoma, History and the Law of the Constitution of Nigeria (Lagos: Malthouse Press, 1994) at 266 [emphasis added].

373 consensus is rarely intractable. Recalling his own experience on the Supreme Court from the mid to the late eighties, Justice Oputa said:

I noticed that in every case there is usually one voice strong enough to drive conviction into the minds of his fellow Justices, dispel any lingering doubts and secure unanimity.114

This "one strong voice" does not have to be the Chief Justice.1143 If it were so, there is no doubt that the author would have been explicit. Moreover having seen more than one person occupy the centre chair during his own tenure on the Court, he would naturally be expected to compare their respective style. In any event, from the mid 1970s, as the Court expanded and the pressure of caseload increased, the Chief Justice participated in fewer cases. In addition, the reverse seniority order of speaking at conferences of the Court ostensibly removes some of the pressure on the junior

Justices.115 While it is possible that the norm of consensus sometimes had to be enforced before the eighties, the dissent rate has held steady throughout the history of the Court.

The coalescing force in the Supreme Court very likely has less to do with the personality of the Chief Justice and more with its institutional character. The Court approaches issues for determination not as policy making but as legal problems with

Oputa, "Dispensation of Justice in Nigeria," supra note 98 at 10. 114a Justice G.B.A. Coker, who was on the Court between 1964 and 1975, is reported to have said, that partly because the Justice who presides on a panel steers discussion at the conference, he "very often influences the decisions significantly." See A.A. Adeyemi, "The Contribution of the Court to the Development of Penal Policy" in A.B. Kasunmu, ed., The Supreme Court of Nigeria 1956-1970 (Ibadan: Heinemann, 1977) 143n [hereinafter Adeyemi, "The Supreme Court and the Development of Penal Policy"]. 115 In the Supreme Court of Canada, where the reverse seniority order is also applied, it has been observed, "the rationale for having the most junior judges speak first in conference deliberations is to encourage their full participation and is to reduce the likelihood of undue reticence or deference." See Greene, Final Appeal, supra note 97 at 119. See also Wilson "Decision-Making in the Supreme Court," supra note 87 at 236 ("The thinking behind this tradition was to avoid the more junior members of the Court simply adopting the views of their elders and betters.").

374 determinate solutions in law. In addition, it observes a strong adherence to precedent

(evident in its reluctance to overrule precedents). In this context, it would be natural for the "one strong voice" to ultimately convince others of the correctness of one particular legal solution or another. Just as important, the Supreme Court cannot disregard the obvious risk of significant dissensus draining away its meagre political resources.

The present proliferation of individual opinions would appear inconsistent with an institutional norm of consensus. This is not so, however, where writing separate opinions serves the purpose of ventilating dissensus without resorting to formal dissent.116 It would be difficult otherwise to locate any sustainable incentive for lengthy separate opinions, unless there is a legal obligation for Justices to write separately, which is not the case. In collegial courts, we are reminded, "one gets no writing credit for dissenting or concurring opinions; however consuming the preparation of a separate opinion may be, the judge must still carry a full load of opinions for the court. Dissents or concurrences are written on one's own time."116a

Significant levels of informal dissensus are sometimes associated with highly consensual courts.117 Formally unanimous decisions may mask conflict. Gadbois offers the same explanation for why Krishna Iyer, an activist judge by any measure, almost

See, e.g., the remarkable plurality decision of Adesanya, supra note 94 (seven opinions). See Chapter 4 §3 C of this study. 116a R.B. Ginsburg, "Remarks on Writing Separately" (1990) 65 Wash. L. Rev. 133 at 142. 117 See B.M. Atkins & JJ. Green, "Consensus on the United States Courts of Appeals: Illusion or Reality" (1976) 20 Am. J. Pol. Sci. 735; D.R. Songer, Consensual and Nonconsensual Decisions in Unanimous Opinions of the United States Courts of Appeals" (1982) 26 Am. J. Pol. Sci. 225; C.H. Sheldon, "The Incidence and Structure of Dissensus on a State Supreme Court" in Clayton & Gillman, Supreme Court Decision-Making, supra note 111 at 115; P.L. Dubois, "The Illusion of Judicial Consensus Revisited: Partisan Conflict on an Intermediate State Court of Appeals" (1988) 32 Am. J. Pol. Sci. 946.

375 never dissented. Instead, he frequently wrote lengthy separate opinions that were in truth

11R "thinly disguised dissenting opinions."

C. Weak Institutional Voice: Panel Decision-Making and the Fragmentation of the Supreme Court

Even without individual opinions, the Supreme Court does not project a strong institutional voice. Its voice, and ultimately, authority, is weakened by a fractionalized, semi-permanent three-panel structure. The Court does not sit en banc. Instead, most of its business is shared more or less equally between three panels of five Justices, each a third of the Court and headed by one of the senior Justices. A so-called 'Full Court"119 of

118 Gadbois, "Decline of Dissent," supra note 103 at 254. 119 The term "Full Court" is obviously a misnomer as the number constituting it is less than half of the Court. The institution of a full court was also part of the structure of the predecessors of the modern Supreme Court. The old (colonial) Supreme Court's appellate chamber was formally designated "Full Court." See supra, chapter 3 note 19 and accompanying text. But unlike the present Court, the old court was a bifurcated organization of a single-judge trial court ("Divisional Court") with an appellate chamber comprising the Chief Justice and all the Puisne Judges of the Supreme Court. Even in the latter capacity the court did not sit en banc but, usually, in panels of three including the chief justice. The designation "full" simply refers to the larger court hearing appeals from decisions of one of its own judges. Indeed, until 1922, it was not unknown for the particular judge who tried a case to also sit on appeal with the Full Court. See examples cited in chapter 3 note 26. Kasunmu suggests that the use of the designation "Full Court" by the present Supreme Court specifically owes to the practice of its immediate predecessor, the West African Court of Appeal. See Kasunmu, "Supreme Court of Nigeria," supra note 93 at 47: "Under the present [pre- 1979] system a court of five judges, the so-called full court is needed before the Supreme Court can overrule an earlier decision on a point of law. The concept of a full court for purposes of overruling was first made use of by the West African Court of Appeal in Motayo v. COP. (1950) 13 WACA 114 at 116 and has since been adopted by the Supreme Court." (For a brief account of the West African Court of Appeal, see chapter 3 §1B of the present study.) It is indeed noteworthy that the specific purpose served by the Full Court in the practice of the West African Court - reconsideration of precedents - is also one of the two purposes for which the Supreme Court empanels it, even though unlike constitutional decision-making, there has never been any statutory or constitutional requirement for the Supreme Court to be specially constituted for that particular purpose. See further note 126 infra. See Johnson v. Lawanson [1971] 1 All NLR 56 (overruling Odeneye v. Savage [1964] N.M.L.R. 115 and Williams v. Akinwumi [1966] 1 All NLR 115); Bucknor-Maclean v. Inlaks Ltd. [1980] 8-11 S.C. 1 (overruling Shell-BP v. Jammal Engineering [1974] 1 All NLR 543 and Owunmi v. P.Z. [1974] 1 All NLR (pt. 2) 107); Oduola & Ors. v. Nabhan & Ors. [1981] 5 S.C. 197 (overruling Mobil Oil v. Coker [1975] 3 S.C. 175 and Odunfunade v. Rossek [1962] 1 All NLR 98). An interesting question for a while was whether a decision made by a Full Court can be overruled by a future Full Court. This is of course the peculiar status of constitutional decisions. The matter was finally settled in 1983 in the affirmative. See Paul Odi & Ors. v.Osafile & Ors [1985] 1 NWLR 17 (although the Court declined to overrule the precedent in question).

376 seven is specially struck for constitutional cases (including human rights) and reconsideration of precedents. This, the largest number the Court empanels under the existing practice is less than a majority of its full membership. Even so, the occasion for empanelling a Full Court is not great since, as we saw in chapter 4 §1, constitutional cases are a small share of the docket.

This decision-making structure of the Supreme Court reinforces its profile of reticence. As responsibility for deciding any case before the Supreme Court is assigned to a fraction of its number (nowadays always less than a majority), a critical factor in how the Court decides an issue may be the Justices to whom a case is assigned.120 Perhaps even more significantly, with the relatively small number controlling the decision on any occasion, three or four in non-constitutional and constitutional cases respectively, the

Court becomes even less likely to interfere with high policy issues. Since the Supreme

Court as an institution is already reluctant to risk what little moral capital it has, a fraction of the Court is very likely to be even more hesitant to do so.

The use of panels was originally justified as a means of getting the Supreme Court up to speed with its growing caseload.121 This mechanism however soon became the permanent structure of the Court. During its early years, all available Justices, or at any rate a large majority, frequently participated in decision-making. This grew increasingly

120 Since the Court is highly deferential on policy issues, any correlation between panel composition and outcome may not be obvious. However, the claim could be tested with affirmation/ reversal rates generally or in specific subjects. That exercise is outside the scope of the present study. For a Canadian study, see A.D. Head, "The Charter in the Supreme Court of Canada: The Importance of which Judges Hear an Appeal" (1991) 24 Can. J. Pol. Sci. 289 [hereinafter, Head, "The Charter in the Supreme Court of Canada"]. 121 There is sufficient evidence that panel decision-making had a positive impact on the capacity of the Court. See Kasunmu, "Supreme Court of Nigeria," supra note 93 at 45 (comparing the number of appeals disposed of by the Court in 1962 and 1965, when there were two regular panels, and 1968 when it was not possible to empanel more than one as a result of the ongoing Nigerian Civil War).

377 uncommon, that by the end of the 1960s, panel decision-making had become firmly institutionalized. But as the size of the Court remained relatively small, this did not immediately require partition into semi-permanent panels. Indeed, even by the mid-

1970s, because there were still just about enough sitting Justices to constitute, what was then, a five-judge Full Court, almost all available Justices usually participated in most of

111 the constitutional business of the Court.

Until the 1980s the business of the Supreme Court was shared between two regular (three-judge) panels, one of which (Court 1) was presided over by the Chief

Justice and the other (Court 2), by the senior Justice. With the expansion of the Court, since 1985 the fifteen associate Justices are distributed into three regular five-judge panels. Panel assignment is the responsibility of the Chief Justice, who does not ordinarily participate on any of the regular panels. Since the number of Justices assigned to each panel is the minimum required by law to constitute the Court, illness, recusal or non-availability otherwise of even one Justice effectively puts the affected panel out of business. On such occasions the Chief Justice would usually temporarily join that panel.

Before 1979, Nigerian Constitutions (1960 and 1963) simply mandated the Court to fix "the number of judges who may sit for any purpose," provided it may not be less than three.123 This is also the number stipulated by the statute of the Court for it to be

122 For example, in 1970, the five-judge panel that decided the land mark constitutional case, Lakanmi v. Attorney General, supra note 112, included all but one member of the Court. 123 The Constitution of 1960 and 1963 respectively permits the Court, subject to the provisions of any Act of Parliament, to make rules regulating its practice and procedures, including fixing "the minimum number of judges who may sit for any purpose, so however that no matter shall be finally determined by less than three judges." See Independence Const. (1960), s. 113(4), Republican Const. (1963), s. 121(4).

378 properly constituted. The Court soon established a practice of assigning constitutional cases and reconsideration of its previous decisions to a five-judge Full Court.125 With the

Constitution of 1979 however the minimum number for a panel of the Court was set at five and seven for non-constitutional and constitutional cases respectively.126 The Court could therefore no longer sit with less than five Justices. It continued, however, to adhere to the existing practice of reserving reconsideration of previous decisions to the, now enlarged, Full Court. This development is the only reform of the composition of panels in the history of the Court. Since the Constitution of 1979 had also raised the number on the

Supreme Court to thirteen, the three-judge panel had become rather small for such a large body. This reform momentarily ensured that a majority of the Court, seven, would necessarily participate in any Full Court.

This balance was again upset with a further increase in the number of Supreme

Court Justices in 1985. As a result, the Supreme Court constantly struggles to retain the appearance of a single court. One means by which it attempts to subordinate its multi- panel structure to its corporateness is that there are no concurrent sessions of panels. Only one panel of the Supreme Court is in session at any give time. Under the present arrangement, the existing three panels sit consecutively for one week each. This means that each panel is only able to sit for only a third of the year. The two-week downtime

124 See the Federal Supreme Court Act, No. 12 of I960, s. 9 ("The Supreme Court shall be duly constituted if it consist of three judges"). See also, Independence Const. (1960), s. 113(4), Republican Const. (1963), s. 121(4). 125 See Kasunmu, "Supreme Court of Nigeria," supra note 93 at 47. 126 See Nigeria Const. 1979, s. 214; Nigeria Const. 1999, s. 234. See also Supreme Court Act cap 424 Laws of the Federation of Nigeria 1990, s. 10 ("The Supreme Court shall be duly constituted if it consist of not less than five Justices") [text reproduced in Appendix 2 to the present study]. In the light of the post- 1979 regime, it may be assumed that the only legal basis of the extant practice of the Court of convening a full court for reconsideration of precedents is that it continues to claim the power to empanel any number of judges above the statutory minimum.

379 between sittings is ostensibly put to the good purposes of conferencing, research and

writing opinions. An important mechanism for maintaining institutional discipline is

extra-panel conferencing. Since the largest number the Court currently empanels for any

purpose is only seven, there is clearly the unsatisfactory situation where the majority of

the Supreme Court is forced to sit out even the most important adjudication it undertakes.

To partially compensate for this, as we shall discuss below, a panel seised of a particularly important legal or constitutional issue may invite the remainder of the Court to participate in conference but not the hearing.

Although panel assignment is purely discretionary,127 the process is tightly

structured. While the specific criteria employed by the Chief Justice for striking panels are not known, there is no doubt that panels struck for federalism cases are often as geographically representative as the diversity of the Court at the particular time allows. A former Justice claims that legal or social attitudes may influence the Chief Justice in panel assignment,12 but there is nothing indicating that this or any special expertise of a

Justice is an important consideration. Nor can that be, since, except for the Full Court,

See "Constitution of Supreme Court Panel at my Discretion" Thisday (26 March 2001), online: Thisdayonline (date accessed: 27 March 2001) (interview with Chief Justice Uwais) [hereinafter Uwais, "Constitution of Supreme Court Panel"]. 128 "The Chief Justice of Nigeria will no doubt know the legal and social philosophies of [the] Justices of the Supreme Court. This might influence his decision in picking members of a particular panel." See Oputa, "Dispensation of Justice in Nigeria," supra note 98 at 42. But he appears to state this as an assumption rather than a hard fact. A contrary assumption is probably more coherent with the facts. As Alabi has observed, "in view of the low rate of dissent at the Supreme Court, the importance of policy preferences [in] empanelment of the Supreme Court cannot but be subject to some qualifications." See Alabi, Supreme Court and Political System, supra note 101 at 192-93. Cf. practice in the Supreme Court of Canada during the stewardship of Chief Justice Lamer. According to him, "... I know my colleagues and I have a fairly good idea about what they are thinking on particular issues. I might ask what the other judges think about a particular issue, even if it is not of national importance. I wouldn't like to see a minority in the court impose its views on the court, and even for cases that are not of general importance I will strike the bench of nine if necessary." See Greene, Final Appeal, supra note 97 at 115.

380 panels are not struck for particular cases. The only exception apparently is where a case requires determination of Sharia and, possibly, customary law issues,130 which would usually be assigned to a panel with Justices having a background in those subjects.

Otherwise, the primary consideration apparently guiding the Chief Justice in assigning a case to a particular panel is the even distribution of workload.131

It can hardly be denied that the present structure of the Supreme Court gives considerable influence to the Chief Justice in constitutional cases since a Full Court is struck ad hoc and completely at his discretion. This influence is presumably greater with human rights cases, as there does not exist a similar imperative for a representative panel that one finds with federalism cases. Since most other business of the Court is largely routine, the power to strike Full Court panels may be just as critical for decision-making as it would be with any other final appellate court.132 In addition, the Chief Justice participates in most Full Court panels. This disproportionately high participation rate translates directly into influence in constitutional cases. Even where panel assignment is done on a fairly equal basis, the chances of anyone (other than the Chief Justice)

Given that regular panel assignment in the Supreme Court of Nigeria is rigid rather than on a dynamic, case-by-case, basis, the factor of individual policy preferences would be practically nil. Justice Oputa's claim is more plausible with Full Court assignment, which is purely ad hoc. Even in this respect, the Chief Justice is still constrained by the imperative of geographic balance. 130 Alabi, Supreme Court and Political System, supra note 101 at 193. 131 For Canada and South Africa, see L. Hausegger & S. Haynie, "Judicial Decisionmaking and the Use of Panels in the Canadian Supreme Court and the South African Appellate Division" (2003) 37 Law & Soc'y Rev. 3. Panel assignment in the U.S. Courts of Appeals has been extensively studied. See J.R. Brown & A.H. Lee, "Neutral Assignment of Judges at the Court of Appeals" (2000) 78 Tex. L. Rev. 1037; D.J. Barrow & T.G. Walker, A Court Divided: The Fifth Circuit Court of Appeals and the Politics of Judicial Reform (New Haven: Yale University Press, 1988), J.W. Howard, Courts of Appeals in the Federal Judicial System: A Study of the 2nd, 5th and District of Columbia Circuits (Princeton: Princeton University Press, 1981), B.M. Atkins & W. Zavoina, "Judicial Leadership on the Court of Appeals: A Probability of Panel Assignment in Race Reform Cases on the Fifth Circuit" (1974) 18 Am. J. Pol. Sci. 701. 132 See, e.g., Head, "The Charter in the Supreme Court of Canada," supra note 120.

381 participating in all or most constitutional cases in any given year is almost nil at the

present level of these cases in the Court's docket.133 Given relatively short tenure,134 most

Justices retire from the Court relatively insufficiently exposed to constitutional and

human rights adjudication. This is similar to the effect of panel decision-making in the

Indian Supreme Court, where as Tripathi observes, "some of the ablest judges may never

1 ^^ get their chance, to contribute their best to constitutional interpretation."

A fragmental structure also weakens the institutional voice of the Supreme Court of Nigeria and is potentially harmful to its integrity, as responsibility to reconsider even the most enduring precedents of the Court or to determine the most important constitutional case is assigned to less than a majority of the Court. Where there is a division, the final decision may have the support of as few as four Justices, or merely a quarter of the whole Court. In non-constitutional cases, this may even be as low as three, or a fifth of the Court. That the present situation is highly unsatisfactory has been acknowledged even within the Court.136

The small number of cases is an important factor in the present trend. We suppose that as the constitutional docket of the Court increases, the ratio of cases which the Chief Justice participates in will decline. 134 See chapter 3, Tables 3.1 and 3.2 and generally, chapter 3 §3C. 135 P.K. Tripathi, "Perspectives on the American Constitutional Influence on the Constitution of India" in L.W. Beer, ed., Constitutionalism in Asia: Asian Views of the American Influence (Berkeley: University of California Press, 1979) 56 at 94. 136 A long-serving and highly respected former Supreme Court Justice, Kayode Eso has said: While in very important constitutional matters only seven members of the present thirteen are obliged to sit, the decision of the Court only requires a majority of the seven which mathematically gives four. Viewed from another stance, while four give the judgment of the Court and the three sitting with that majority, and the six who are not sitting, might not agree with the constitutional interpretation given by the majority, the day is carried by those four against the remaining nine. But assume that the entire thirteen must sit, and / have not been persuaded why not, then the majority of thirteen is mathematically seven - a more satisfying situation for the law. I submit that if we are

382 The institutional integrity of the Court is endangered by the almost unavoidable risk of conflicting or inconsistent decisions. The danger has exacerbated with expansion of the Court. Even when the Supreme Court was far smaller than it is today, critical observers of the Court were already apprehensive of the potential negative impact of panel decision-making on its institutional voice and integrity. According to A.B.

Kasunmu,

The disadvantages of panel sitting...more than outweigh the advantage gained by speedy disposition of cases, particularly when the appellate court concerned is the final court of appeal in that country. In the first instance, the decision of that final court could not truly be said to be the decision of the Supreme Court, but on the contrary, it is the decision of three1 7 members of the court and there is no guarantee that the other Supreme Court judges would not have decided differently. ...The likelihood of conflicting decisions and the perpetuation of wrong judgments is greater when an appellate court sits in two panels than when it sits as one court. One would end up with a situation in which there would be the Supreme courts of Nigeria instead of one Supreme Court as provided for by the Constitution.138

As the Freund Committee reported on the United States Supreme Court, "a delegation to panels of responsibility for decision would depreciate the authority of the

Court and would expose decisions in the name of the Court to changes and chances of the composition of the panels. This element of a lottery, inescapable in the circuits and

going to have a tyranny of number, then let it be a mathematical tyranny. See K. Eso, Thoughts on Law and Jurisprudence (Lagos: MIJ Professional Publishers, 1990), quoted in Alabi, Supreme Court and Political System, supra note 101 at 200 [emphasis added]. This view is supported by at least one other ex member of the Supreme Court. See Oputa, "Dispensation of Justice in Nigeria," supra note 98 at 43. 137 The number refers to the size of panels before 1979. 138 See Kasunmu, "Supreme Court of Nigeria," supra note 93 at 15-19 [emphasis in original].

383 incongruous enough for litigants and counsel in particular cases, is incompatible with the responsibility of the Supreme Court to the Law itself."139 The excessive fragmentation of the Supreme Court of India is instructive here. While its number has grown to twenty- six,1 the Court conducts most of its business as eleven separate panels ("Division

Benches") of two or three judges.141 The minimum number for a "Constitution Bench," required to hear important constitutional cases, is only five, a panel rarely struck by the

Chief Justice nowadays. In fact, even early in the eighties, George Gadbois declared, "the

Constitution bench has become virtually extinct."142 Upendra Baxi also observes,

[S]hifting panels of judges decide cases and in many cases the Court as an institution loses its corporateness and craftpersonship. From the point of view of the citizen, the Court as an institution becomes merely a panel of a few justices selected unaccountably by the Chief Justice from time to time.143

See Federal Judicial Center, Report of the Study Group on the Caseload of the Supreme Court (Washington, D.C.: Federal Judicial Center, 1972) at 8 [hereinafter Federal Judicial Center Study Group Report]. 140 See Gupta, Decision Making in the Supreme Court of India, infra note 143 at 85. 141 Fractionization of the Indian Supreme Court exacerbated with the rise of the two-judge panels. By the end of the 1970s, most of the business of the Court was handled by them. This was a significant transformation. The original eight-member Court operated two benches - a Constitution Bench of five judges and, for ordinary civil and criminal matters, a three-judge Division Bench. But when the Court was expanded to eleven in 1957, another ordinary division was added. Thus, already within its first decade, the Court was functioning simultaneously in three Divisions. See Law Commission of India, Reform of Judicial Administration (Fourteenth Report) (New Delhi: Ministry of Law, 1958) at para. 49 [hereinafter Indian Law Comm., Fourteenth Report]. 142 Gadbois, "Decline of Dissent," supra note 103 at 241. In his view, "the decline of the Constitution bench is incontrovertible evidence of the fact that the Court was spending less and less of its time considering 'substantial question(s) of law as to the interpretation of this Constitution'" (mandate under Article 143 (5) of the Indian Constitution). See ibid, at 241-42. 143 U. Baxi, "On the Shame of not being an Activist: Thoughts on Judicial Activism" in N. Tiruchelvam & R. Coomaraswany, eds., The Role of the Judiciary in Plural Societies (New York: St. Martin's Press, 1987) 168 at 170). This echoes a complaint almost a decade earlier by Justice P.N. Bhagwati, one of the leading lights of the modern Indian Supreme Court: ...important decisions on constitutional issues are not the decisions of the Supreme Court but they are the decisions of a bench of five Judges chosen by the Chief Justice. The Supreme Court was intended to be an integrating mechanism designed to evolve uniform laws and a systematic approach to legal and constitutional issues, but it has

384 The result is that the institutional voice of the Indian court becomes very faint

where, as is not uncommonly the case, a landmark judgment is announced by a two or

three-judge panel of the Court;144 what is heard is a surrogate's. The extreme

fractionalization also makes inconsistent decision-making unavoidable.

That problem is mitigated in the Supreme Court of Nigeria by its internal practice.

In important constitutional cases and other extraordinary occasions, according to the

practice, Justices not assigned to a panel are invited by the Chief Justice to participate,

without vote, in the post-hearing deliberation.145 (He may act upon the invitation of the

become a glorified High Court with a fragmented bench structure without any identity of its own and without any sense of direction. See P.N. Bhagwati, Speech before All India Law Teachers Conference, Varanasi, India, 27 December 1979, quoted in Gadbois, "Decline of Dissent," ibid, at 245-46. Or as one Indian commentator laments, "the concept of the [Supreme] Court as an entity whose functional unity is presupposed, tends to break down at this level, and acts as a major constraint in the evolution of an institutional discipline." See V.K. Gupta, Decision Making in the Supreme Court of India (A Jurimetric Study) (Delhi: Kaveri Books, 1995) at 87. It is remarkable that this danger was foreseen and cautioned against during the writing of the Indian Constitution. The Constitutional Adviser, B.N. Rau, recalls the counsel of an eminent American judge: ...Justice Frankfurter was very emphatic that any jurisdiction exercisable by the Supreme Court [of India] should be exercised by the full Court. His view is that the highest Court of appeal in the land should not sit in divisions. Every Judge, except, of course, such Judges as may be disqualified by personal interest or otherwise from hearing particular cases, should share the responsibility for every decision of the Court. See B.S. Rao, The Framing of India's Constitution: Select Documents Vol. Ill (New Delhi: The Indian Institute of Public Administration, 1967) at 219. (In late 1947, Rau toured the United States, Canada, Ireland, and the United Kingdom, where he discussed aspects of the Indian draft constitution with leading personalities and constitutional experts. In the United States, he met with, among others, three Justices of the U.S. Supreme Court, including Frankfurter. His report is published in full, ibid, at 217-234.) 144 Two of the most important decisions in the Court's Public Interest Litigation jurisprudence are good examples: People's Union for Democratic Rights v. Union of India A.I.R. (1982) S.C. 1493 (Bhagwati and Islam JJ); Bandhua Mukti Morcha v. Union of India A.I.R. (1984) S.C. 802 (Bhagwati, Pathak, and Sen JJ). 145 According to Chief Justice Uwais: We have a practice here that even if you don't sit on the panel, you participate in the conference. The whole idea is, we are 16 for instance and the Constitution says you constitute a panel of seven, [and] seven is not even up to half of the number of the Court. You may have a decision taken by that seven which will bind the remaining nine, so if

385 Justice presiding on the panel.) This ostensibly ensures that all members of the Court are

in constant consultation on constitutional questions and requests to reconsider precedents.

The occasions of universal conferencing are presumably few, and it is not certain how effective it is in practice. The benefit of the practice is not evident in the opinions of the

Justices, which as we saw in the previous section, remains essentially a purely individual activity. Whatever the true situation is, it is obvious that competing assignments may hamper the degree of attention that Justices are able to give to cases being considered by panels to which they are not assigned. Even if that were not so, they do not have the benefit of directly hearing oral arguments and putting issues to the lawyers. In any event, consultation without a vote, as the extant practice entails, does not give the non-sitting

Justices sufficient responsibility for how these cases are finally decided.

The present practice of extra-panel conferencing is as close as the Court gets to sitting en banc. It does not have formal en banc sessions, even in important constitutional

we have a very serious constitutional case, [or] not even constitutional ...if it is asking us to reverse our previous decision in a case and seven judges sat and we feel this is very important. Where I sit on the panel, I will propose that we invite all our colleagues who were not on the panel to participate in the conference. Where I am not on the panel, the Presiding Judge will decide to mention it to me that he thinks this issue is so important that we get other members of the Court to participate in the conference. You have seven Judges who sat, whose responsibility it is to take the final decision, but we have the other members of the court who may express an opinion. If I am on the panel that sits, I may or may not be persuaded by the opinion expressed by one of those who was not on the panel. I am not bound to accept his own view, just like any other member of the panel, but we would have heard the view of our colleagues on the issue. It is not possible to have, by virtue of the Constitution, everybody on the case, but it is possible to have everybody express an opinion on a case. See Uwais, "Constitution of Supreme Court Panel," supra note 127 [emphasis added]. (Compare the practice of the Supreme Court of Canada. Like the Nigerian Court, panels are struck at the discretion of the chief justice, but where it sits as a panel of five or seven, any judge not selected for the panel has a right to sit anyway. See Greene, Final Appeal supra note 97 at 114.)

386 cases. This is not a result of practical constraints. It is unlikely that doing so occasionally or for some limited business would seriously affect its capacity to maintain its current annual output. The problem seems to lie, at least partly, in a mistaken assumption that the

Constitution does not mandate the Supreme Court to hear any case with more than seven

Justices.14 This claim merits closer examination.

Before doing so, it is helpful to remember that the former practice of the Supreme

Court of empanelling a Full Court with five Justices was more or less arbitrary. Although this was also the practice of the West African Court of Appeal, the circumstances that informed that choice are unique to that Court. Even as ardent a scholar of the Supreme

Court as Kasunmu concluded, "how the number of judges to sit in a full court ever came to be fixed at five is beyond comprehension." He suggests one should look to the practice of the West African Court for clues. Although this court never provided a definite rationale for the number, it appears this was about as many judges as it could practically expect to be available. Hence the logic of the practice of the West African court requires the Supreme Court should empanel the whole court.

In Motayo v. C.O.P.,147 where only five judges constituted a full court, the West African Court of Appeal remarked that in local conditions it would be impracticable to hold a court of more than five judges, but the practice would be that no previous decision of the court would be reviewed save by a full court constituted by that number. Given the conditions now prevailing, there is no reason why a full court should not consist of all the existing members of the Supreme Court; this situation would be similar to that of the [now defunct] East African Court of Appeal where a full court consists of five, the total strength of the court.148

146 This is the view of the present Chief Justice, as the italicized statement in the passage quoted ibid. 147 Supra note 119. 148 See Kasunmu, "Supreme Court of Nigeria," supra note 93 at 47.

387 The West African Court of Appeal was a regional court with jurisdiction over four countries. As we saw in chapter 3, two permanent judges and the chief justices of each of the four countries constituted the Court. It sat usually with three judges - the two permanent judges and the chief justice of the particular territory it was sitting. A full court of five is about as en banc as the Court could get. Indeed, in the circumstances, it was almost a feat for as many as five judges to be assembled for any particular case. The

Supreme Court has never had similar practical constraints. Its judges work in the same building and none, at least since 1963, have been required to share their time between the

Court and some other court.

Nor are there any legal constraints to en banc sitting of the Court. Before 1979, there was only a constitutional requirement of quorum for the Court, which in no way constrained the Chief Justice from empanelling a larger number or the whole Court for that matter.149 Indeed, on at least one occasion, in August 1979, Chief Justice Fatayi-

Williams contemplated empanelling the whole Court to hear a highly politically sensitive electoral dispute.150 What is curious is why this was highly exceptional. It seems that the

See section 121(4) of the Constitution of 1963 ("no matter shall be finally determined by less than three judges"), This, Kasunmu argues: ...does not provide justification for a permanent sitting of the court in panels, and ... it could be argued that the right of appeal to the Supreme Court is not satisfied by a hearing before less than one-third of that Court selected on an ad hoc basis by the Chief Justice. In fact, Section 121(4) would seem to be fixing the minimum below which the Supreme Court could not sit as opposed to its being a directive that a sitting of the Supreme Court should consist of three judges. See Kasunmu, "Supreme Court of Nigeria," supra note 93 at 45 (at the time the passage was written "one- third" of the Court was three. See Table 4.2.1 (chapter 4) in the present study). 150 Awolowo v. Shagari [1979] All NLR 120 (disputed presidential election). According to the account he provided after retiring from the Court:

388 Court's internal practice gradually canonized the five-judge Full Court, making the possibility of empanelling the whole court increasingly unlikely even with more Justices

added to the Court.

From 1979, however, special empanelling of the Supreme Court for hearing constitutional issues was specifically constitutionally mandated in the following terms:

For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any law, the Supreme Court shall be duly constituted if it consists of not less than five Justices of the Supreme Court: Provided that where the Supreme Court is sitting to consider an appeal brought under section 233(2)(b) or (c) of this Constitution,151 or to exercise its original jurisdiction in accordance with section 232 of this Constitution, the Court shall be constituted by seven Justices.152

Knowing how important the result of the appeal would be for the future peace and stability of the country and for the first civilian administration after fourteen years of military rule, I tried to include all the available members of the Court in the panel which was to hear the appeal. Unfortunately, this was not possible because Sir Udo Udoma, for personal reasons, the details of which a Chief Justice or presiding justice does not normally ask for, declined to sit. Justice Sowemimo was away in the United Kingdom undergoing medical treatment, while Justice Nnamani, apart from being responsible for the drafting of the provisions of the Decree which was being challenged, had been deployed, after being sworn-in as a justice of the Supreme Court, by the military administration, as the Federal Attorney General and Commissioner for Justice. That left only the Chief Justice and seven justices. As the Court does not normally sit with an even number of justices, I decided that one of the seven justices would be dropped. The seven of us...heard the appeal, which under normal conditions, would have been heard by a bench consisting of the Chief Justice and four other justices.... See A. Fatayi-Williams, Faces, Cases and Places, supra note 102 at 157 [emphasis added]. 151 S. 232(2): "(b) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution; (c) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution [fundamental human rights] has been, is being or is likely to be, contravened in relation to any person." 152 S. 234 Nigerian Const., 1999 [emphasis added]. An identical provision was included in the Nigerian Const, 1979 (s. 214).

389 The main clause (first paragraph) could hardly be clearer. Except for the number, it does not depart substantially from previous constitutional provisions on constituting the Court.

It simply prescribes five as the minimum number for the Court to exercise any jurisdiction. It may, therefore, consistent with this provision, empanel a larger number.

The purpose is to establish a quorum, not a permanent number for a panel. The proviso

(second paragraph) unfortunately lacks the clarity of the main clause. Nonetheless, the import of the word "constituted" in the proviso is akin to "duly constituted" in the main clause. The point in using two words where one is sufficient is not obvious. The evident purpose of the phrase in the proviso is to specify a minimum number or quorum, in this case seven, for the Court to be (duly) constituted for the purpose of determining the matters stated therein. While it is true of course that this could have been stated more plainly,153 a different reading would be absurd. To regard seven as the absolute number to

See Nigeria Const., 1989, s. 233(2), which states simply that to hear a constitutional case, the Court shall constitute "all the Justices of the Supreme Court available at the time of the sitting so however that the number shall not be less than 7." This has the same effect as the equivalent provision of the Canadian Supreme Court Act: "any five of the judges of the Court shall constitute a quorum and may lawfully hold the Court." See Supreme Court Act, R.S.C. 1985, c. S-26, s.25. The language of the Constitution of India specifying quorum for the Supreme Court is equally explicit: The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under article 143 shall be five: Provided that, where the [Division Court of the Supreme Court] hearing an appeal under any of the provisions of this Chapter other than article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a [panel of the Supreme] Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion. See Const, of India, s. 145(3). (For some time there was a mandatory requirement of a seven-judge bench to decide matters involving constitutional validity of Central and State laws. This was introduced by the

390 empanel to exercise the stated jurisdiction would create a very unusual, and definitely uncontemplated, situation where the Court may lawfully within the main clause sit en banc to hear a routine criminal appeal completely devoid of merit, yet is constitutionally forbidden to have more than seven Justices hear constitutional questions of the highest significance.

It seems, unfortunately, that the prevailing view within the Supreme Court currently is that it lacks a legal mandate to empanel more than seven Justices for any business. A recent Chief Justice has explicitly articulated this position.154 Because the consistent practice of the Court since this provision was introduced by the Constitution of

1979, it is fair to assume that this may have similarly been the position of the other four chief justices of this period. However, the view is not at all shared by all those who served on the Court.155

The truly critical challenge of empanelling the entire Court is not the constitutional text but number. Very large appellate courts are usually institutionally adapted to panel decision-making (otherwise it would be almost pointless having a large court in the first place). The larger the number of judges, the less they can optimally function en banc}5 Conversely, universal participation in decision-making is not

Constitution (42nd Amendment) Act, 1976, but has been repealed. See the Constitution (45th Amendment) Act, 1977). 154 See Uwais, "Constitution of the Supreme Court," supra note 127. 155 See Justices Eso and Oputa, supra note 98. 156 See R. A. Posner, "Is the Ninth Circuit Too Large? A Statistical Study of Judicial Quality" (2000) 29 J. Leg. Stud. 711 (the U.S. Court of Appeals for the Ninth Circuit has 28 active and 11 (in March 2005) "senior" judges, by far the largest U.S. Court of Appeal. Federal judges may take senior status, or retire, if they are at least 65 years of age and have served for x years, where x + their age equals at least 80).

391 uncommon with smaller courts. Precisely at what number it becomes less than optimal for en banc decision-making is difficult to say. The Canadian Bar Association study group on the Supreme Court of Canada argued that it was unwise to contemplate increasing the judges on that court from nine to eleven. "Nine judges," it reported, "by conference and consultation, can keep in constant touch with one another, establish consistent themes and generally act in a beneficial collective way. That would be increasingly difficult for a larger number."158

On the contrary, a bench of eleven has not been shown to be burdensome for the

South African Constitutional Court, which as a rule sits en banc}59 As a practical matter,

For example, even in the case of the now thoroughly fragmented Supreme Court of India, in 1950, when it was composed of only six judges, it was not uncommon for all to participate together as the Constitution bench. See G.H. Gadbois," Supreme Court Decision Making" (1974) 10 Banaras L.R. 1 at 25n. 158 See Canadian Bar Association, "Report of the Special Committee of the Canadian Bar Association on the Caseload of the Supreme Court of Canada" (Ottawa: Canadian Bar Association, 1973) at 20-21. [hereinafter CB A, "Caseload of the Supreme Court of Canada"] (See our discussion of some other aspects of the report in chapter 4 §2D, supra.) Various proposals for enlargement of the Supreme Court of Canada are critically reviewed by Peter Russell, "Constitutional Reform of the Judicial Branch: Symbolic vs. Operational Considerations" (1984) 17 Can. J. Pol. Sci. 227 at 236—241. His argument against these proposals is similar to that in the Bar Association report (although he does not cite it). According to him, "from an operational point of view, expansion of the Court has some distinctly negative implications. Collegiality, that elusive but highly desirable quality of appellate courts, would be watered down with 11 judges. Such an expansion of the Court would encumber the interaction of judges that takes place in conferences, through the circulation of draft opinions and by participating in the same cases. Such interaction improves the quality of the Court's work by illuminating and clarifying points of agreement and disagreement. Moreover, expansion to 11 judges might make it more difficult to make progress towards having the full court hear important cases." Ibid, at 238. 159 It is perhaps necessary to enter a caveat here. Tom Ginsburg has identified a trend indicating that general final courts of appeal tend to have fewer judges than designated constitutional courts, such as South Africa's: "there is some empirical support for the proposition that designated constitutional courts are larger than their counterparts that are the courts of appeal for all issues. For new constitutional courts set up after 1989 (n = 25), the mean number of justices was 11.25. For supreme courts given the power of constitutional review in the same period (n = 8), the mean size is 8.25." See Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge: Cambridge University Press, 2003) at 48 [hereinafter Ginsburg, Constitutional Courts]. (In his view, the trend may indicate that general final courts of appeal enjoy the advantage of time saved by first-instance consideration by lower- level courts of the issues raised in non-constitutional cases on. Ibid.)

392 it may also be noted that eleven160 and even thirteen1 } judges respectively have

constituted the Supreme Court of India on at least three occasions. Admittedly, this is

highly exceptional. The international Court of Justice routinely sits with its full

complement of fifteen judges and very often with additional judges ad hoc.162 It is yet to

be seen that such large number sitting together is dysfunctional in practice. The Canadian

Bar Committee did not however regard nine as a magic figure. Its position seems to have

been motivated more by the need to avoid enlarging the Supreme Court of Canada to a

point where a panel properly constituted to hear and determine cases becomes less than a

majority of the Court, the situation with the Nigerian Supreme Court today. This fear was

well founded given that the statute of the Canadian Court stipulates that a panel should be

no less than five justices.163 With a court of nine, this ensures, as the Committee

observed, where there are two panels of the Court, there is at least one judge common to both.164 The Committee was in fact open to enlargement of the Court any way should that

See Cooper v. Union of India [1970] 3 SCR 530 (the Court struck down the Bank Nationalization Act). All but one of the 12 members of the Court sat in this case. Chief Justice Hidayatullah recused himself from the case because he had assented to the Act as Acting President. See Austin, Working a Democratic Constitution, supra note 60 at 216. At any rate, it was necessary for one member of the Court to be excluded to avoid the possibility of a tie. This is probably why again later that year, eleven justices sat in Bahadur & ors v. Union of India [1971] 3 SCR 9 (the "Privy Purses case") (Justice Reddy did not participate). 161 See His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Another [1973] 4 SCC 225, A.I.R. 1973 S.C. 1461 (Chief Justice Sikri, Justices Shelat, Hegde, Grover, Ray, Reddy, Palekar, Khanna, Mathew, Beg, Dwivedi, Mukherjea, and Chandrachud). Justice Alagiriswamy, the junior member of the Court was the only one who did not take part. (The Chief Justice excluded him apparently to avoid a tie.) 162 See Statute of the International Court of Justice, Art. 31(2) & (3), 59 Stat. 1031, 39 Am. J. Int'l L. Sup 215 (1945). 163 See supra, note 153. 164 See CB A, "Caseload of the Supreme Court of Canada," supra note 158.

393 be considered necessary, in the event that its principal recommendation - enhanced discretionary jurisdiction - fails to create the needed relief from case overload.165

Nevertheless, it must be conceded that in the existing environment of heavy caseload, it would be counterproductive for the Supreme Court of Nigeria to sit en banc except occasionally. The occasion may well be limited primarily to bill of rights and federalism cases and when the Court reconsiders its own precedents. In our view, the

Court may conveniently continue to sit in panels in routine cases. As the present size of the Court is caseload-driven, as we explained in the last chapter, a significant reduction of caseload would effectively render unnecessary a large court. This will also be the result where the Court devises some means of efficiently processing its present caseload volume that makes it unnecessary for it to operate three panels. In addition to the caseload factor, the proliferation of individual opinions makes empanelling the entire

Court or even a significant majority very challenging.1 Yet, neither caseload nor multiplicity of opinions is sufficient to eclipse the existing absurdity where two-thirds of its number is practically sidelined when the Court hears even its most important cases. In

165 Ibid, at 21. 166 Again, the experience of the Indian Supreme Court is instructive. In Kesavananda, supra note 161, for instance, nine opinions were delivered by the eleven justices (joint opinions were given by Hegde and Mukherjea JJ, and Shelat and Grover JJ respectively) which took up 701 pages in print. In addition to this, ostensibly to minimize confusion, nine justices, including two who were not in the majority, took the unusual step of issuing an "authoritative" summary of what the Court decided. The issue in the case was the highly contentious question of judicial review of the power to amend the Indian Constitution. For an extensive analysis, see R. Dhavan, The Supreme Court of India and Parliamentary Sovereignty: A Critique of its Approach to the Recent Constitutional Crisis (New Delhi: Sterling Publishers, 1976). A shorter but very valuable account with background is provided in Austin, Working a Democratic Constitution, supra note 60 at 258-77. For a vigorous defence of the Supreme Court, see U. Baxi, "A Pilgrim's Progress: The Basic Structure Revisited" in Courage, Craft and Contention: The Indian Supreme Court in the Eighties (Bombay: N.M. Tripathi, 1985) at 64-110.

394 a situation such as the present, there is a certain deception to talk of a decision of the

Supreme Court.167

III. WHEN THE FORMAL SOURCES RUN OUT: EXTERNAL NORMS IN SUPREME COURT DECISION-MAKING

A. Judicial Globalization

"Courts are talking to one another all over the world," writes Anne-Marie Slaughter. This

conversation has profound consequences for judicial power. "An increase in transjudicial

communication is likely to spell an increase in communication about human rights

I /TO protection." Driven primarily by a need to cut information costs and reduce

uncertainty,1 9 the growing significance of transjudicial communication is evident in the

high visibility of citations of foreign courts by national and international courts and

increasing doctrinal convergence.170 This phenomenon is remarkable given that external

legal materials typically do not have precedential status in the recipient court. According

to the typology suggested by Slaughter, this communication takes three basic forms:

horizontal (communication across national or regional borders between courts of the

1 The Study Group on the Caseload of the U.S. Supreme Court indicated that decision-making in panels would raise a constitutional issue of compliance with the prescription of Article III of the U.S. Constitution of "one Supreme Court." See FederalJudicial Center Study Group Report, supra note 139. 168 A. Slaughter, "A Typology of Transjudicial Communication" (1994) 29 U. Rich. L. Rev. 99 at 99, 135 [hereinafter Slaughter, "Typology of Transjudicialism"]. See also S. Choudhry, "Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation" (1999) 74 Ind. LJ. 819 (describing and explaining the interpretive methodologies applied, and the normative justifications offered, by courts for their use of comparative jurisprudence in constitutional interpretation) [hereinafter Choudhry, "Globalization in Search of Justification."]. 169 See Smithey, Judicial Adaptation to the Uncertainties of Constitutional Transformation, supra note 43. 170 Because judges will not normally feel compelled to look abroad, and there are good reasons for them to avoid doing so, argues Smithey, cross-national citation represents evidence of fairly remarkable influence. See Ibid, at 105.

395 same status, whether national or supranational); vertical (between national courts and

international courts/tribunals); 71 and mixed vertical-horizontal communication.172

Since borrowing precedents from other courts has the utility value of cutting

information costs and reducing uncertainty when confronted with novel issues, less

experienced, or fledging, courts should be expected to look to the more experienced, or

older, courts. Initially, reliance on foreign sources would be considerable, especially as

the former courts are confronted with novel issues. With the accumulation of indigenous

precedents, citation of foreign courts should decline.173 On this account, from the 1960s,

when it first started interpreting constitutional rights provisions, the Supreme Court of

Nigeria should therefore be expected to be highly attentive to rights jurisprudence of

foreign courts. As it confronts more difficult policy issues, the dependence of the

The pure form of vertical communication occurs between international tribunals and national courts within their jurisdiction. But there is also increasing communication between tribunals such as the European Court of Human Rights and national courts outside their jurisdiction. According to Slaughter, "this form of communication may thus ultimately resemble horizontal communication." Ibid, at 111. Ibid. 173 This is acknowledged by the South African Constitutional Court in one of its earliest decisions: "comparative 'bill of rights' jurisprudence will no doubt be of importance, particularly in the early stages of the transition when there is no developed indigenous jurisprudence in this branch of the law on which to draw." State v. Mahvanyane, supra note 71 at 414 (per Chaskalson J). Observers of the court have reported a changing trend. According to one of them, "as the Constitutional Court began to develop a jurisprudence of its own, it sought to rely less on the direct use of comparative law for determination of the meaning and scope of the rights entrenched in [the Constitution]. While judgments and legal writings drawn from other jurisdictions are still frequently cited, particularly from those jurisdictions where the constitutional texts were employed in the writing of the South African text, this form of constitutional borrowing has been increasingly mediated by the political and economic conditions prevailing within the country." D.M. Davis, "Constitutional Borrowing: The Influence of Legal Culture and Local History in the Reconstitution of Comparative Influence" (2003) 1 Int'l J. Const. L. 181 at 194. See also S.I. Smithey, "A Tool, not a Master: The Use of Foreign Case Law in Canada and South Africa" (2001) 34 Comp. Pol. Studies 1188 and Smithey, Judicial Adaptation to the Uncertainties of Constitutional Transformation, supra note 43 at c. IV. For other studies of the Canadian and South African courts' reception of foreign precedents, see also C.L. Ostberg, M.E. Western & C.R. Ducat, "Attitudes, Precedents and Cultural Change: Explaining the Citation of Foreign Precedents by the Supreme Court of Canada" (2001) 34 Can. J. Pol. Sci. 377; C. Manfredi, "The Use of United States Decisions by the Supreme Court of Canada under the Charter of Rights and Freedom" (1990) 23 Can. J. Pol. Sci. 499; I. Bushnell, "The Use of American Cases" (1986) 35 U. New Brunswick LJ 157; H. Webb, "The Constitutional Court of South Africa: Rights Interpretation and Comparative Law" (1998) IU. Pa. J. Const. L. 205.

396 Supreme Court on foreign precedents should actually grow over the years, given its

limited experience. Foreign citations should be particularly prominent with application

of the limitation of rights clause, especially with the explicit benchmark of what is reasonably justifiable in "a democratic society." Evidence from Canada, for example,

shows that the Supreme Court of Canada is more likely to mention non-Canadian policies

in cases where it makes a formal determination of restriction of rights under section 1 of the Charter of Rights and Freedoms.174

The evidence from Nigeria does not conform to the expected pattern. While, as expected, foreign citations have grown, especially in recent years, there has, except for

English cases (for the reasons already stated), been very limited borrowing of foreign precedents. The Court has not been eager to emulate human rights ideas and doctrines available in comparative law. In critical policy areas, such as the death penalty, transjudicialism has had almost no influence on the Supreme Court.1743

The explanation for this limited influence lies partly in the limited institutionalization of the Court. Anne-Marie Slaughter argues that one of the preconditions for transjudicial communication is that courts engaged in it see themselves as autonomous actors forging an autonomous relationship with their foreign or

Smithey, Judicial Adaptation to the Uncertainties of Constitutional Transformation, supra note 43 at 134. 174a Even where it ventures into activist decision-making, Supreme Court opinions are, generally, characterized by dry formalism, See, e.g. Yesufu Garba v. University of Maiduguri [1986] 1 NWLR 550 (rustication of students), holding that a "charge" in disciplinary proceedings indicating commission of a crime, violates the constitutional protection of everyone charged with a crime to have a fair trial in court (following Dr. GO. Sofekun v. Akinyemi & 3 Ors (constituting the Public Service Commission) [1980] N.S.C.C. 175, [1980] 5-7 S.C. 1, [1980] All NLR 153). Cf. R v. Wigglesworth [1987] 2 S.C.R. 541 (S.C.C.); Kadubec v. Slovakia (1998) 23 E.H.R.R. 553; Engel and Ors v. The Netherlands (1976) 1 E.H.R.R. 647; Campbell and Fells v. United Kingdom (1984) 7 E.H.R.R. 165

397 supranational counterparts. In our view, the quality she describes as "autonomous self- conception" grows with institutionalization. The behaviour of courts as autonomous actors directly reinforces the separation of powers, hence their institutionalization as policy makers and effectiveness as rights protectors.

The reception of courts to transjudicial communication is also a function of judicial strategy, as we shall see below. Courts seeking to expand their power, and thus their policy role, may draw on the "wisdom" of comparative law, or what is perceived in effect as a transnational community of law, to persuade their audiences.177 As these courts gain power, reliance on this source may actually become to an extent counterproductive. On the other hand, weak courts reluctant to risk expansion of their power are likely to be less inclined to use comparative law in the first place.

B. Making Room for "Soft" Law: International Law and Human Rights Decision-Making

Transjudicialism has become especially significant in the application of international law norms by national courts in human rights decision-making. In fact, Taavi Annus has

Slaughter, "Typology of Transjudicialism," supra note 168 at 123. n6 u-p0 mg extent that either the cause or a result of a transnational network of courts communicating with one another and with supranational courts is courts' conception of themselves as autonomous actors even beyond state boundaries, as opposed to integral and effectively invisible sub-components of state actors in the international system, the possibility of checking more repressive elements of national governments is increased." Ibid, at 135. 177 See T. Annus, "Comparative Constitutional Reasoning: The Law and Strategy of Selecting the Right Argument" (2004) 14 Duke J. Comp. & Int'l L. 301 at 344 [hereinafter Annus, "The Law and Strategy of Selecting the Right Argument"] ("Relatively young constitutional courts, rather than established regimes, may find particular use for comparative experience based on the need to seek judicial legitimacy by referring to more experienced constitutional courts. For instance, young constitutional courts can justify entering certain areas of policymaking by referring to other courts which have acted similarly. In addition, these courts can persuade other governmental bodies that their judgment is substantively in line with the practice of other democratic countries. This might be especially true for courts in countries undergoing political transition, in order to show the way for democratic development. Further, demonstrating that courts throughout the world have dealt with a particular question might help prevent accusations that the court is interfering with political questions more appropriately addressed by other branches of government.").

398 suggested that international law is the principal way of legitimizing normative reasoning through comparative law.178 In recent years, international human rights norms have become an increasingly important resource in national courts. In Africa alone, their use is

170 1RO enjoined by the Bangalore Principles and its affirmations and by the Latimer House

Principles among others. In Bangalore, the Commonwealth Judicial Colloquium acknowledged the growing tendency of national courts to apply international norms for the purpose of deciding cases where the domestic law is uncertain or incomplete. This tendency is entirely welcome because it respects the universality of fundamental human rights and freedoms and 178 Ibid, at 331. See also R. Bahdi, "Globalization of Judgment: Transjudicialism and the Five Faces of International Law in Domestic Courts" (2002) 34 Geo. Wash. Int'l L. Rev. 555 ("The rising use of international law in domestic courts across jurisdictions constitutes both symptom and cause of this globalization."); Note, "The International Judicial Dialogue: When Domestic Constitutional Courts Join the Conversation" (2001) 114 Harv. L. Rev. 2049 (discussing international judicial conversation on capital punishment). 179 See Commonwealth Secretariat/ Interights, Developing Human Rights Jurisprudence: The Domestic Application of International Human Rights Norms (London: Commonwealth Secretariat, 1988) at ix-x [hereinafter Judicial Colloquium I\ (adopted at the judicial colloquium on the domestic application of international human rights norms convened at Bangalore, India between 24 and 26 February 1988. Except for Justice Ruth Ginsburg of the United States Supreme Court, all participants were Commonwealth judges from nine countries. Zimbabwe's Chief Justice E. Dumbutshena was the only African judge attending). 180 Harare Declaration of Human Rights, para. 10: see Commonwealth Secretariat/ Interights, Developing Human Rights Jurisprudence, Volume 2: A Second Judicial Colloquium on the Domestic Application of International Human Rights Norms (London: Commonwealth Secretariat/ Interights, 1989) at 11; Banjul Affirmation, paras. 7 & 8: see Commonwealth Secretariat/ Interights, Developing Human Rights Jurisprudence, Volume 3: A Third Judicial Colloquium on the Domestic Application of International Human Rights Norms (London: Commonwealth Secretariat/ Interights, 1991) at 2-3 [hereinafter Judicial Colloquium III\; Abuja Confirmation, para. 17(iii): see Commonwealth Secretariat/ Interights, Developing Human Rights Jurisprudence, Volume 4: Fourth Judicial Colloquium on the Domestic Application of International Human Rights Norms (London: Commonwealth Secretariat/ Interights, 1992) at x-xi [hereinafter Judicial Colloquium IV]; Balliol Statement, para. 5: see Commonwealth Secretariat/ Interights, Developing Human Rights Jurisprudence, Volume 5: Fifth Judicial Colloquium on the Domestic Application of International Human Rights Norms (London: Commonwealth Secretariat/ Interights, 1993) at vii; The Bloemfontein Statement, para. 8: see Commonwealth Secretariat/ Interights, Developing Human Rights Jurisprudence, Volume 6: Sixth Judicial Colloquium on the Domestic Application of International Human Rights Norms (London: Commonwealth Secretariat/ Interights, 1995) at vi; and The Georgetown Conclusions, paras. 2 & 4: see Commonwealth Secretariat/ Interights, Developing Human Rights Jurisprudence, Volume 7: Seventh Judicial Colloquium on the Domestic Application of International Human Rights Norms (London: Commonwealth Secretariat/ Interights, 1998) at xi. 181 Commonwealth Secretariat, Commonwealth (Latimer House) Principles on the Three Branches of Government (London: Commonwealth Secretariat, 2004) Annex, para. 1.2 ("Where domestic incorporation has not occurred, international instruments should be applied to aid interpretation.").

399 the vital role of an independent judiciary in reconciling the competing claims of individuals and groups of persons with the general interests of the community. While it is desirable for the norms contained in the international human rights instruments to be still more widely recognized and applied by national courts, this process must take fully into account local laws, traditions, circumstances and needs. It is within the proper nature of the judicial process and well-established judicial functions for national courts to have regard to international obligations which a country undertakes - whether or not they have been incorporated into domestic law - for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or common law.182

Although the situation in Southern Africa is encouraging, in the decade after

1 R4 Bangalore there was very little use of international norms by African courts generally.

Several reasons account for this. Prominently, treaties, the main source of international human rights norms, are not among the formal sources of law in the legal systems of most of Commonwealth Africa, unless where they have been transformed into local legislation.185 The extant strict formalist orientation of the judges effectively puts out of

See Judicial Colloquium I, supra note 179 at x [emphasis added]. 183 For a survey, see O. Tshosa, National Law and International Human Rights: Cases from Botswana, Namibia and Zimbabwe (Aldershot/ Burlington, VT: Dartmouth/ Ashgate, 2001) [hereinafter Tshosa, National Law and International Human Rights]. For South Africa, see R.C. Blake, "The World's Law in One Country: The South African Constitutional Court's Use of Public International Law" (1999) 115 S. Afr. L.J. 668; J. Dugard, "International Law and the South African Constitution" (1997) 8 EJIL 77. But see Z. Motala, "The Constitutional Court's Approach to International Law and its Method of Treating the 'Amnesty Decision:' Intellectual Honesty or Political Expediency" (1996) 21 S. Afr. Y. B. Int'l Law 29 (discussing Azanian Peoples Organization & Ors. v. The President, Republic of South Africa & Ors 1996 (4) SA 671 (CC) (The Court ignored obligation at international law to prosecute human rights violations)). For a useful background, see A. Stemmet, "The Influence of Recent Developments in South Africa on the Relationship between International Law and Municipal Law" (1994) 33 Int'l Lawyer 47-74. 184 See M.E. Adjami, "African Courts, International Law, and Comparative Case Law: Chimera or Emerging Human Rights Jurisprudence?" (2002) 24 Mich. J. Int'l L. 103 185 The so-called principle of dualism of international and national law is constitutionalized in Nigeria in the following terms: "No treaty between the Federation and any other country shall have the force of law

400 consideration treaties or other legal materials outside the strict categories of the formal sources of law.186 The significance of this attitude is illustrated by the experience of

Nigerian courts with the African Charter on Human and Peoples' Rights. In 1983,

Nigeria was one of the first parties to the Charter to implement it through local

except to the extent to which any such treaty has been enacted into law by the National Assembly." See Nigeria Const. 1999, s. 12(1). (This reflects the British practice: A. Aust, Modern Treaty Law and Practice (Cambridge: Cambridge University Press, 2000) at 151-55.) But see Joseph Ibadapo v. Lufthansa Airlines [1997] 4 NWLR 124, 150 (S.C.): Nigeria, like any other Commonwealth country, inherited the English common law rules governing the municipal application of international law. The practice of our courts on the subject is still in the process of being developed and the courts will continue to apply the rules of international law provided they are found not to be over-ridden by clear rules of domestic law. Nigeria, as part of the international community, for the sake of political and economic stability, cannot afford to live in isolation. It shall continue to respect and enforce both the multilateral and bilateral agreements where their provisions are not in conflict with our fundamental law. Per Wali JSC [emphasis added] (holding that although not a High Contracting Party, the Warsaw Convention for the Unification of Certain Rules relating to International Carriage by Air 1929 was locally enforceable in Nigeria because of extension of application of the Convention to the country by colonial legislation by the United Kingdom). A similar dualist regime applies in most of Commonwealth Africa. For a discussion of incorporation of international law in African legal systems, see T. Maluwa, "The Incorporation of International Law and its Interpretation Role in Municipal Legal Systems in Africa: An Exploratory Survey" (1998) 23 S. Afr. Y.B. Int'l L. 45; Maluwa, International Law in Post-Colonial Africa (The Hague/ London/ Boston: Kluwer law Int'l, 1999) at 31-57. 186 Insufficient familiarity of judges and lawyers with international law, usually because of the neglect of the subject in legal training, is probably an equally important factor. This is one of the reasons Thomas Hansen found for the little application of international law by courts of Malawi even though the constitution specifically requires its application: ...some of the lawyers recognized that their own knowledge about international human rights was insufficient and the majority of the responding lawyers believed that the lawyers in Malawi in general do not have sufficient knowledge about international human rights law and the status of international human rights conventions in Malawi. .. .the judges likewise agreed that they felt uncomfortable applying international rights law, because they were not used to doing so and they had difficulties understanding its international nature and how to apply it at domestic level. ...They also felt as well that the knowledge about international human rights was lacking on the part of some lawyers. See T.T. Hansen, "Implementation of International Human Rights Standard through the National Courts in Malawi" (2002) 46 J. Afr. L. 31 at 40. The Commonwealth Judicial Colloquium has also identified "the need for programmes of continuing judicial studies and professional training in international and comparative human rights jurisprudence." See Judicial Colloquium IV, supra note 180 at xi.

401 legislation. There was thus the remarkable situation of the Charter being enforceable as domestic law in Nigeria almost three years before it entered in force as a treaty. With the emergence of a military dictatorship soon after the legislation was enacted, the courts accorded the Charter legislation an extraordinary quasi- or super-constitutional status.

The purpose was to make the Charter rights inviolable and superior to any act of a supposedly absolute military dictatorship. This was possible only because the African

Charter had become a formal source of law by legislation, a status that the UN

Covenants, for example, although also ratified by Nigeria, do not have. When Frans

Viljeon completed a survey of the application of the Charter by African courts by the end of the 1990s, he observed,

[i]t is ironic, but perhaps predictable, that the clearest illustration of the potential effect of the African Charter in domestic law is found in Nigeria under a military regime at 1 on a time of severe repression....

Despite this performance, the African Charter has so far added limited value to the substantive content of the rights protected by the Nigerian Constitution. This is African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act, cap. 10 Laws of the Federation 1990. 188 See Chima Ubani v. Director of State Security Services [1999] 11 NWLR (Pt. 625) 129 [Ct. of Appeal] ("In questions or issues concerning the fundamental rights protected under the African Charter, the provisions of the African Charter are superior to the decrees of the Federal Military Government."); and Fawehinmi v. Abacha [1996] 9 NWLR (Pt. 475) 710 [Ct. of Appeal], aff d [2000] 6 NWLR (Pt. 660) 228 (S.C.). The Supreme Court was divided on the extraordinary status accorded the African Charter Act by the Court of Appeal in both cases. In principle, from the perspective of the law of treaties and state practice, a statute implementing a treaty, such as the African Charter Act, is legally no different from any other legislation. See Aust, Modern Treaty law and Practice, supra, note 185 at 151 ("With dualism the provisions of a treaty which have been incorporated into domestic law have the status only of domestic law, and can be amended or repealed by later legislation. If such action were to result in breach of the treaty, there would be no remedy in domestic law since there would have been no violation of it." [emphasis in original]). 189 See F. Viljeon, "Application of the African Charter on Human and Peoples' Rights by Domestic Courts in Africa" (1999) 43 J. Afr. L. 1 at 7. For a discussion of the use of the Charter by Nigerian courts, see D. Peters, "The Domestication of International Human Rights Instruments and Constitutional Litigation in Nigeria" (2000) 18 Neth. Q. Hum. Rts. 357 at 368-72.

402 because judicial application of the Charter shares the formalist approach that characterizes the Bill of Rights caselaw. In fact, there is a real danger that the liberal language of the Charter's claw back clauses in particular may well be read to effectively render the rights nugatory, unless Nigerian courts pay close attention to comparative law, especially the Charter jurisprudence of the African Commission on Human and Peoples'

Rights. The Commission's jurisprudence requires limitation of rights "must be strictly proportionate with and absolutely necessary" for the legitimate interests of State.190 The

Charter's protection of social and collective rights,191 although also part of the statutory regime, and the relevant Commission's jurisprudence are not yet a significant resource in rights adjudication. Greater reliance on comparative law should be expected in this area because of limited familiarity with the subject by the local courts.

C. The Application of the European Convention Jurisprudence

The caselaw of the European Convention on Human Rights and Fundamental Freedoms has acquired special prestige in comparative human rights law. Not surprisingly, the

European Court of Human Rights has been described as a "sort of world court of human rights," "the jurisprudential influence of which now extends far beyond Europe," to

Africa194 and elsewhere.

190 The Commission has stated that claw-back clauses "must be interpreted against the principles of the Charter. Recourse to [them] should not be used as a means of giving credence to violations of the express provisions of the Charter." See Naldi, "Limitation of Rights under the African Charter," supra note 74 at 114 (digesting the caselaw). 191 See F. Ouguergouz, The African Charter on Human and Peoples' Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (The Hague: Martinus Nijhoff, 2003). 192 See A. Slaughter, "Judicial Globalization" (2000) 40 Va. J. Int'l L. 1103 at 1110 (quoting John B. Attanasio). 193 See Judicial Colloquium IV, supra note 180 at viii. 194 See C. Heyn, "African Human Rights and the European Convention" (1993) 11 S. Afr. J. Hum. Rts. 252 [hereinafter Heyn, "Africa and the European Convention"]. The influence of the caselaw has been

403 But there is almost no indication of this in the work of the Supreme Court of

Nigeria. The Convention caselaw is infrequently cited by the Court, and before the last decade, almost never. This seems counterintuitive. As the less experienced institution, the

Nigerian court would be expected to borrow, or at least, seriously consider, the

Convention jurisprudence, even more so as the Nigerian Bill of Rights closely models the

European Convention. Instead the European caselaw has never been be assigned any special weight in Supreme Court decision-making. When, for example, it considered the very difficult issue of the death penalty recently, the Court cited without discussion the landmark European Court decision, Soering v. United Kingdom} 5 This ordinarily is an especially compelling precedent, providing a very satisfactory mutually consistent reading of the texts of the guarantee of right to life and of human dignity in the European

Convention, which are the same as Nigeria's.

The compelling relevance of the Convention jurisprudence is inescapable. Neo-

Nigerian bills of rights substantially replicate the original text of the Convention.196 This genealogical justification197 apart, the methodologies associated with the Convention jurisprudence have an intrinsic value of their own. First is the evolutive or purposive interpretation of the Convention (the "living instrument" and "practical and effective"

greatest in Zimbabwe. See L. Madhuku, "The Impact of the European Court of Human Rights in Africa: The Zimbabwean Experience" (1996) 8 Afr. J. Int'l & Comp. L. 923 ("...judgements on the Bill of Rights by the Zimbabwe Supreme Court show an increasing readiness, not only to refer to ECHR judgements but also to treat them as if they were a binding body of law. ...While Zimbabwe has relied on many other foreign human rights courts, it would appear that reliance on the ECHR has been more consistent."). See also, Tshosa, National Law and International Human Rights, supra note 183 at 203-255. 195 (1989)11E.H.R.R.439. 196 See supra, chapter 2 §2A. 197 "The starting point for the genealogical use of comparative case law is a family relationship between two legal systems, one of which is the source of comparative insight for the other." See Choudhry, "Globalization in Search of Justification," supra note 167 at 868, and generally, 838-39, 866-85.

404 198 doctrines). Secondly, the European Court has approached the terms of the Convention

as "autonomous concepts,"199 providing it a means to assign the terms meanings they do

not necessarily possess in the domestic law of parties to the Convention. This attitude is a

major plank in the dynamic interpretation enterprise of the Court. Both techniques would

be equally useful to the Supreme Court. At the same time, however, it should approach

the substantive Convention jurisprudence reflectively. 00 Despite its exceptional

quality,2 ' the cosmopolitan character of the European Convention jurisprudence is

contestable, since the European "consensus"202 benchmark the European Court uses

arguably brands its work as a "European standard" of human rights. Second, the Court's

198 See A. Mowbray, "The Creativity of the European Court of Human Rights" (2005) 5 Hum. Rts. L. Rev. 57; P. Mahoney, "Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two Sides of the Same Coin" (1990) 11 Hum. Rts. L.J.57; S. Greer, "Constitutionalizing Adjudication under the European Convention on Human Rights" (2003) 23 Oxford J. Leg. Studies 405. On the approaches to the public interest limitations of the Convention, see A. McHarg, "Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights" (1999) 62 Mod. L. Rev. 671. For general accounts of interpretive techniques applied to the Convention, see F. Matscher, "Methods of Interpretation of the Convention" in R.St. J. Macdonald, F. Matscher & H. Petzold, eds., The European System for the Protection of Human Rights (Dordrecht: Martinus Nijhoff, 1993) 63; F. Ost, "The Original Canons of Interpretation of the European Court of Human Rights" in M. Demas-Marty & C. Chodkiewicz, eds., The European Convention for the Protection of Human Rights: International Protection Versus National Restrictions (Dortrecht/ Boston/ London: Martinus Nijhoff, 1992) 283. 199 See G. Letsas, "The Truth in Autonomous Concepts: How to Interpret the ECHR" (2004) 15 Eur. J.I.L. 279. The principle of autonomous interpretation is equally applicable to other international human rights treaties. See R v. Secretary of State, ex parte Adan [2001] 2 WLR 143, [2001] 1 All ER 593. 200 See Heyn, "Africa and the European Convention," supra note 194 at 262 (African courts should "consider the European Convention jurisprudence critically and cautiously as one of the available options...and [should] not.. .confine themselves to the European Convention."). 201 But see C. Warbrick, "Coherence and the European Court of Human Rights: The Adjudicative Background to the Soering Case" (1990) 11 Mich J. Int'l L. 1073 ("The danger for the Court as I see it is that it will become embroiled in the details of individual cases and, because of its aversion to theory, because of its spare form of constructing its judgements and because of the demand of its case-load, not be able to provide judgments which enable national decision-makers and applicants to know where they stand. ...The coherence of judgments properly demanded of a national constitutional court does not appear to be attainable by the European Court." Ibid, at 1096. ). 202 P.G. Carrozza, "Uses and Misuses of Comparative Law in International Human Rights: Some Reflections on the Jurisprudence of the European Court of Human Rights" (1998) 73 Notre Dame L. Rev. 1217; L.R. Heifer, "Consensus, Coherence and the European Convention on Human Rights" (1993) 26 Cornell Int'l L.J. 133.

405 well established highly deferential "margin of appreciation" doctrine means that its jurisprudence is not always commendable to national courts.204

IV. BEYOND SCISSOR-AND-PASTE TRANSJUDICIALISM: FROM 'RETREAT INTO TEXT' TO MATURE ADJUDICATION

The Supreme Court of Nigeria has summarized its approach to comparative law as

follows:

It has long been the cardinal principle of our constitutional law that on account of the unique character and diversity of our Constitution, the courts should always endeavour to find solutions to Constitutional questions within the Constitution through its interpretation, but the courts may seek guidance as persuasive authorities from the decisions of the courts of other common law jurisdictions on the interpretations...of the constitutions which are in pari materia with the relevant provisions of our Constitution.2 5

The explicit requirement of textual similarity would seem to suggest a restrictive test of

the relevance of comparative law. This accords with the Court's general positivistic legal

2 The "measure of discretion" {marge a" appreciation) was initially formulated with respect to Article 15 of the Convention (public emergencies derogation) but has since been extended to the other articles. 204 See Hovius, "The Limitation Clauses of the European Convention," supra note 61 at 255 ("As the Convention organs are engaged in the enforcement of an inter-state agreement, they sometimes use the doctrine of margin of appreciation to adopt a degree of restraint that should not be duplicated by national courts enforcing a constitutional bill of rights."). 205 Ogugu v. State [1994] 9 NWLR (Pt. 366) 1 at 27-28. This approach has been restated by the Court on many occasions, sometimes with slight variation in language. See, e.g., Kalu v. State [1998] 13 NWLR 531 at 587 (per Iguh JSC): Although our courts may in appropriate cases give due regard to international jurisprudence and seek guidance, as persuasive authorities only, from the decisions of the courts of other common law jurisdictions on the interpretation and construction of similar provisions of their Constitutions which are in pari materia with the relevant provisions of our Constitution, the court will nevertheless accord due weight to our peculiar circumstances, the generally held norms of society and our values, aspirations and local conditions."

406 orientation. While this approach characterized the death penalty cases, it is not always so.

In Agbakoba,2 for example, Indian cases were cited to support an implicit right to hold a passport within the constitutional freedom of movement, even though the Indian

Constitution does not have anything similar to the freedom of movement guarantee of the

Nigerian Constitution. Perhaps therefore rather than similarity, textual divergence is the important factor in the practice of the Supreme Court of Nigeria.

However, even with constitutional difference, comparative law, as Sujit

Choudhry, has argued, should not necessarily become irrelevant; it is as an important stimulus to interpretive self-reflection. In cases of supposed constitutional difference, according to him, "a court may determine that difference to be unfounded. Comparison with a different constitutional perspective exposes one's assumptions as contingent, a first step to interpretive change."207 One would look very hard to find this perspective in the Supreme Court's use of comparative law. There is almost a total absence of serious analysis by the Court of the reasoning in foreign cases or a nuanced application of such reasoning to the Nigerian constitutional provisions. It is in fact difficult to avoid

Choudhry's characterization "judicial window-dressing" - merely citing foreign judgments without much discussion or analysis - to describe the practice of the Court.

Two factors significantly limit the Court's use of comparative law.

Information available to the Supreme Court is limited in quality and diversity. There is heavy reliance on litigants' briefs and oral arguments. The Court uses very little academic literature. Secondly, because of its limited political power, the Court may sometimes be

206 Supra note 33. 207 Choudhry, "Globalization in Search of Justification," supra note 168 at 858 and more fully, 855- 858.

' 407 strategically disinclined to apply comparative law, to avoid overturning government policies.

A. Doctrinal Convergence: Information Flow to the Supreme Court

The significance of information flow in the policy output of courts is only beginning to be understood. The basic concepts of the structure of the flow of information to courts are information input, information conversion, and information output, or as Lamb puts it, the flow of information to, through, and from the judges.209 Although how courts convert information available to them is liable to be underestimated, information input is perhaps the critical aspect of the information flow process. Almost all the inputs in the

Supreme Court of Nigeria formal information flow process are external: case record, lower court opinions, litigants' briefs, and oral argument. Information internal to the

Court is very limited. While they may of course take judicial notice of certain facts, the

Justices do all their research and opinion writing without any support. There are no law clerks or legal secretaries.

As Supreme Court Justices typically have no career background in legal research or law reform,210 it is no surprise that very limited research go into opinion writing. For example, in its very important death penalty case, Kalu v. State,211 the Court was apparently completely unaware of a well marshalled argument for the unconstitutionality of the death penalty in Nigeria by Professor Nwabueze, Nigeria's leading constitutional

208 See CM. Lamb, "Judicial Policy-Making and Information Flow to the Supreme Court" (1976) 29 Vand. L. Rev. 45. See also Seidman, "Judicial Review and Fundamental Freedoms," supra note 88 at 834- 849 (discussing inputs, conversion, and output of African courts as decision-making systems). 209 Lamb, ibid, at 79-80. 210 For discussion of the career background of Justices of the Supreme Court of Nigeria, see chapter 3 §3C of the present study. 211 Supra note 205.

408 scholar.212 (Drawing extensively on United States' precedents, he argued that capital

punishment was incompatible with the constitutional prohibition of inhumane and

degrading treatment.) This material is far from obscure. It is a chapter of the author's

authoritative textbook on the Nigerian Constitution, and what is more, the work had been

widely used by law students for over a decade and half when the Court first took the case.

Again, when the Court considered the question of the constitutionality of the common

law immunity of the State in tort, in Ransome-Kuti, the Court was apparently unaware

of a Supreme Court of Ireland decision repudiating the rule on constitutional grounds

over a decade earlier.214 Nor was the experience of any other common law jurisdiction

outside England with the immunity rule considered.

If this is any indication of the research capacity available to the Court, it probably

accounts for the very little citation of academic literature or, except for English cases,

foreign caselaw. The prominence of these sources in the decision-making of the Supreme

Court of Canada215 is widely attributed partly to expansion of its clerkship programme.216

See B.O. Nwabueze, The Presidential Constitution of Nigeria (London: C. Hurst & co., 1982) at 411-19 (discussing "constitutionality of the death penalty"). The absence of a foundation of "deep research" in Supreme Court decision-making was deprecated by a leading scholar in the seventies. He observed that in one case where it considered certain Australian precedents, "the Court relied on just the 'digest' of these cases in the Australian Digest, when the relevant law reports containing the full report were available at the Court's own library...and also a few miles away at the Law Library.... Such behaviour, to say the least, is not desirable in the highest court of the land, inasmuch as it could not enable its members to peruse and appreciate fully the arguments adduced in favour of those decisions by the Australian courts." See Adeyemi, "The Supreme Court and the Development of Penal Policy," supra note 114a at 134n. 213 Supra note 38. 214 Kathleen Byrne v. Ireland [1972] I.R. 241. 215 See P. McCormick, "Do Judges Read Books, Too? Academic Citations by the Lamer Court 1991- 96" (1998) 9 Supreme Court L.R. (2d) 463; G. Bale, "W.R. Lederman and the Citation of Periodicals by the Supreme Court of Canada" (1994) 19 Queen's L.J. 36; V. Black & N. Richter, "Did She Mention My Name? Citation of Academic Authority by the Supreme Court of Canada 1985-1990" (1993) Dal. L.J. 377. See further chapter 3 of the present study, notes 136-139 and accompanying text.

409 The judges of that court on their part have attested to the value of information from

academic literature and the court's close association with the legal academy.217 This

relationship is also promoted principally by law clerks.

Clerks tend to have had their legal education more influenced by law reviews. They usually rely on the reviews more heavily when forming their opinions and they write more in the style of law reviews than do the Justices.

With the very limited internal information flow therefore, Justices of the Supreme

Court of Nigeria rely heavily on external information inputs. As we have seen, outside

case records and lower court opinions, this makes litigants and their counsel the

overwhelming source of information inputs in the decision-making process. Amicus

briefs are very rare. The informational function performed by amici curiae elsewhere

For the origin and growth of clerkship programme in the supreme courts of Canada and the United States respectively, see M. Mclnnes, J. Bolton & N. Derzko, "Clerking at the Supreme Court of Canada" (1994) 33 Alta L. Rev. 58, and M.J. Herman, "Law Clerking at the Supreme Court of Canada" (1975) 13 Osgoode Hall L.J. 279; and P.R. Baier, "The Law Clerks: Profile of an Institution" (1973) 26 Vand. L. Rev. 1125. For a comparison with a similar programme (referendaires) in the European Court of Justice, see S.J. Kenney, "Beyond Principals and Agents: Seeing Courts as Organizations by Comparing Re/erendaires at the European Court of Justice and Law Clerks at the U.S. Supreme Court" (2000) 33 Comp. Pol. Studies 593. 217 See M. Bastarache, "The Role of Academics and Legal Theory in Judicial Decision-Making" (1999) 37 Alta L. Rev. 739; G. V. La Forest, "Who is Listening to Whom? The Discourse Between the Canadian Judiciary and Academics" in B.S. Markesinis, ed., Law Making, Law Finding and Law Shaping: The Diverse Influences (Oxford: Oxford University Press, 1977) at 69-90 ("in an era of ever-increasing global interdependence, the comparative analysis imported through academic writing ensures that our Court is enlightened by the way in which other countries deal with issues." Ibid, at 89). The significance of academic sources in the decision-making of former chief Brian Dickson is well-known. See R.J. Sharpe & K. Roach, Brian Dickson: A Judge's Journey (Toronto: University of Toronto Press, 2003) at 213-17 ("Judges and Academics: 'Allies in a Common Cause'"); K. Swinton, "Dickson's Style and Sources" in D.J. Guth, ed., Brian Dickson at the Supreme Court of Canada 1973-1990 (Winnipeg: Faculty of Law, The University of Manitoba for the Supreme Court of Canada Historical Society, 1998) 185 at 189-90. 218 L. Sossin, "The Sounds of Silence: Law Clerks, Policy Making and the Supreme Court of Canada" (1996) 30 U.B.C. L. Rev. 279 at 299. Morton and Knopff put the function of law clerks very aptly: they serve "as the conveyor belt from the law schools to the sanctum of the Supreme Court." F.L. Morton & R. Knopff, The Charter Revolution and the Court Party (Peterborough, ON: Broadview Press, 2000) at 112. 219 This is discussed in chapter 4 §3D of the present study. 220 See chapter 4 note 223 of the present study. See also Canadian Council of Churches v. Canada (Minister of Employment and Immigration) [1992] 1 S.C.R. 236 at 256, where the Supreme Court of

410 does not exist. There is very little opportunity to voice the demands of interests and rights advocacy groups in the information flow process. Legislative facts almost never enter the process. The Court is yet to openly welcome such information. The consequences are obvious. As Seidman observes, "if the rules of evidence exclude proof of the data that judges need to make sound judgments, inevitably they fall back upon their 'values.'"221

In the present circumstances, the quality of information available to the Supreme

Court of Nigeria is directly related to the industry and expertise that go into preparation of briefs and arguments. This may be illustrated again with Kalu.222 Foreign caselaw cited by the Justices included the American decision Jones v. Wittenberg,223 but is wrongly identified as a Hungarian case.224 The Court was obvious misled by counsel's error. Nonetheless, since the citation is to a well-known American reporter, even the uninitiated should have little difficulty in spotting the error. A reasonable conclusion is that the Justices did not read the case for themselves. Nor did they closely consider the reasoning of any of the foreign cases cited, but willingly accepted counsel's invitation to

Canada acknowledged, "the views and submissions of interveners on issues of public importance frequently provide great assistance to the courts." 221 Seidman, "Judicial Review and Fundamental Freedoms," supra note 88 at 837. For an illustration of this danger, see Osawe, supra note 89. For the importance of evidence of legislative facts in decision­ making of the Supreme Court of Canada, see supra note 87. 222 Supra note 205. 223 330 F. Supp. 707 (N.D. Ohio 1971). (This citation is wrongly stated in Kalu.) 224 Kalu, supra note 205 at 592 (Opinion for the Court by Iguh JSC), 225 Amicus brief of F.O, Akerele. See ibid, at 583. Counsel apparently confused the case for the Hungarian Constitutional Court decision 23/1990 of 31 October 1990, (1994) 1 East Eur. Case Rep. Const. L. 177 (on the constitutionality of capital punishment). Also reprinted in L. Solyom & G. Brunner, eds., Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court (Ann Arbor: University of Michigan Press, 2000) 118-138.

411 rationalize them formally on account of how the right to life provision was written in the

respective national constitutions.226

B. Judicial Strategy

Courts often use comparative law strategically.227 Foreign citations, for instance, may

serve as political resources forjudges when they refuse to recognize domestic policies as

reasonable limits in a free and democratic society.228 Smithey's study of the Supreme

Court of Canada shows that its Charter of Rights rulings in formal section 1 (limitation of

rights) determinations indicate reliance on nearly twice as many non-Canadian cases as in

229 non section 1 rulings. Judges are in greater need of support when they overturn government policy than when they uphold it. They may build a case for their decisions, strengthening their position vis-a-vis the legislature, by demonstrating that Canadian government policy is out of step with other democratic societies. Therefore, there should be a higher number of foreign citations when the Court rejects the government's s. 1 defence than when such a defence is accepted.230

Use of comparative law may therefore function as an element of strategy in

expanding judicial power. This should especially be true of emergent courts because of

their limited political power. But there are no guarantees. The attenuation of the Supreme

Counsel submitted, the foreign decisions "tend to turn on whether the right to life is qualified or unqualified [in the constitutional text]. In the former, the death penalty has in the main been held to be constitutionally valid. In the latter, it has been held to be unconstitutional." See Kalu, supra note 209 at 618. This submission was adopted wholesale by the Court. See Kalu ibid, at 589 (Iguh JSC), 621 (Ogundare JSC), and 630-31 (Ogwuegbu JSC). Because of this, the Court was rather hasty in reviewing the caselaw. There was very little effort to closely examine the reasoning in each of the cases. Given its profundity and sheer length, Makwanyane, supra note 71, for example, is almost trivialized in Kalu. 227 See Annus, "The Law and Strategy of Selecting the Right Argument," supra note 177 at 343-49 (discussing "the strategy of comparative reasoning."). 228 Smithey, Judicial Adaptation to the Uncertainties of Constitutional Transformation, supra note 43 at 157. 229 Ibid, at 134. 230 Ibid, at 135.

412 Court of Zimbabwe is a constant reminder.231 However, any court that is unwilling to take the risk of institutional expansion is likely to be shy of comparative caselaw. In such circumstances, the question may be less of availability of information on appropriate comparative law than willingness to use it. In Obi, for example, Brett FJ, concurring, cited one of Justice Holmes' constitutional opinions on the U.S. Supreme Court.2 3 But he did not mention the clear-and-present danger doctrine or any of Holmes' freedom of speech opinions. It seems remarkable that anyone who knows something of American constitutional law would not know the doctrine. The failure of Justice Eso in Ransome-

Kuti234 to consider the solution developed by the Irish Supreme Court235 is perhaps more remarkable. Because he had his legal training at Trinity College Dublin (Moderator in

Legal Sci./ LL.B., 1953), where he was a Reid Professorship scholar in constitutional law.236 While it is true of course that this was two decades before the Irish Supreme Court decision, the information was easily accessible. For someone with his background, a search for solutions available in comparative law to justify declaring the common law legal immunity of the State incompatible with the constitution would naturally lead him to Irish law among other sources.

231 See discussion in chapter 1 §4C of the present study, notes 199-215 and accompanying text. 232 Supra note 15. 233 Missouri, Kansas and Texas Railroad v. May (1904) 194 U.S. 267. 234 Supra note 38. 235 See note 218 supra. 236 See J.F. Ade-Ajayi & Y. Akinseye-George, Kayode Eso: The Making of a Judge (Ibadan: Spectrum, 2002) at 51.

413 Chapter Six

THE PERFORMANCE OF THE SUPREME COURT

Judicial review does not exist in a political vacuum, but rather courts are constrained by the positions of other political actors. In new democracies, one of the key variables for the performance of judicial review is the power configuration of political forces.

During most of its first fifty years, the institutional power of the Supreme Court of

Nigeria was not great. As with emergent courts elsewhere, institutional weakness is a critical challenge of human rights decision-making. The Court has however largely escaped the deep public cynicism of political institutions and the political elite today in

Nigeria, as indeed in most of Africa. Still, the Supreme Court's policy role did not grow significantly during the period. The explanation offered by this study is that primarily because it is weakly institutionalized, the Court is yet to acquire the autonomy and institutional support required to become a major political player. But it is consolidating and expanding its power. It's hoped that the reader would find the general tenor of this study less cynical than is apparent in chapter 1. Judicial power must be built gradually.

Emergent courts have to surmount critical environmental challenges in maximizing or husbanding their power. This study provides important insight into elements of judicial politics in Africa and other developing democracies.

In spite of extensive formal jurisdiction, the Supreme Court is a significantly constrained actor. As it is necessarily constantly mindful of the preferences of other political actors, the choices the Court makes are generally never likely to exceed its

T. Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge: Cambridge University Press, 2003) at 89. limited institutional power. Its reticent human rights decision-making therefore reflects this strategic behaviour. This 'reactive' disposition, to use Joel Verner's phrase, is reinforced by a strong formalist-deferential institutional socialization fostered by authoritarianism and a culture of legalism. Our study suggests that the human rights policy output of courts around the world, and, in particular, their contribution to the

"international traffic in ideas about human rights," as Glendon describes it, is more likely to follow a North-South rather than an East-West dichotomy. In other words, the maturity of courts and political institutions and the diffusion of political power may be more important factors in the human rights policy output of courts than national or regional cultural variations regarding human rights norms. If African courts have, at least until recently, not been an important source of the international traffic, it is a measure of their institutional power and political role.

From a longitudinal perspective however the story of the Supreme Court of

Nigeria is a quest of institutional viability, or institutionalization.2 "As a rule, institutionalization translates into political power."3 Growing institutionalization and institutional support is progressively gaining the Court greater policy space, making it an

Discussed in chapter 1 §4C. 2 This discussion is primarily undertaken in chapter 1 §4D. We followed Huntington's definition of institutionalization: a process by which an organization attains value and stability. Institutional viability implies a considerable degree of institutional stability (capacity to withstand environmental shocks). Kirill Bumin, Kirk Randazzo, and Lee Walker's analysis of Latin America and the post-communist states of Eastern Europe indicates that the stability of courts as an organizational entity (institutional durability and autonomy) is the underlying dimension of institutionalization. K. M. Bumin, K. A. Randazzo, & L. D. Walker, "Institutional Viability and High Courts: A Comparative Analysis" (read at the Annual Meeting of the Midwest Political Science Association, Chicago, IL., April 2005). Available online (working paper 2005-02, The S. Sidney Ulmer Project). 3 See K.T. McGuire, "The Institutionalization of the U.S. Supreme Court" (2004) 12 Pol. Analysis 128 at 135.

415 increasingly viable institutional actor in the nation's political life. a However, this delicate expansion of the power of the Supreme Court is not always apparent in the short term. It is idle to expect that in any particular year during the period covered by this study, its decisional output will necessarily produce a visible increase in the power of the

Court over the previous year. Rather, as Kevin McGuire has demonstrated, the impact of institutionalization on judicial power is best assessed longitudinally.3b Accordingly, our view is that the Supreme Court at the end of the nineties is clearly a less timid court than it was in the early sixties. Indeed, a trend of growing assertiveness is increasingly visible.

Information available for the first decade of the twenty-first century already indicates a diminishing reticence in public law adjudication. This result is consistent with the growing institutionalization of the Supreme Court and positive changes in its attentive and mass publics. This as well as a changing incentive structure directly account for the growing assertiveness of the Court.

The framework of this study is limited in scope and method. The Court is relatively young, and the period covered is only four decades. Equally important, this is not a comprehensive survey of the work of the Supreme Court of Nigeria. In fact, our subject, human rights and constitutional cases, is roughly 5 per cent of its decisional output annually. Nonetheless, it is precisely in this area that the Court's reticence is strongest. These cases therefore provide evidence of, and insight into, the significance of

a See H.O. Yusuf, "Robes on Tight Robes: The Judicialisation of Politics in Nigeria" (2008) 8: 2 Global Jurist, Article 3 (available at http://www.bepress.com/gi/vol8/iss2/art3). 3b McGuire, "The Institutionalization of the U.S. Supreme Court," supra note 3.

416 institutional and political constraints on the decision-making of the Supreme Court of

Nigeria.

The institutional analysis applied here frames the Supreme Court as a unitary

actor and an undivided institution. This study seeks to apply insights from positive

institutional theories to the behaviour of the Court, as extrapolated from its output and

anecdotal evidence of public attitudes to it. One limitation of this exercise is that the

theories have been primarily developed from behaviour of Western courts. There is as yet

very little application to African courts, and, whatever there is, is highly tentative.4

Nevertheless, competing explanations of the behaviour of the Supreme Court of Nigeria

are not as compelling as the institutionalist perspective. Neither personal attributes nor

attitudinal analysis of the Justices, for example, is persuasive. Three scores and five

Justices served on the Supreme Court between 1961 and 2000. Although only a small number were expatriates, almost all had their legal education in England. All sixty-five are men. Yet, whatever differences there may be in their character, life experiences and

social and political attitudes appear to have caused very little disagreement within the

This is partly a result of limited informative studies of African judiciaries, a situation lamented two decades ago by Karen Mingst. See K.A. Mingst, "Judicial Systems of Sub-Saharan Africa: An Analysis of Neglect" (1988) 31 Afr. Studies Rev. 135. It is also a result of insufficient information on public and social attitudes in Africa. Many Western studies of African courts rely excessively on international sources. See, e.g., L.R. Remington, "The Legitimacy of African Courts: An Analysis of Public Trust," paper prepared for presentation at the Interim Meeting of the Research Committee for Comparative Judicial Studies, February 2006 (on file with the author) (a cross-national analysis based mainly on information from Afrobarometer (African public opinion research) and Freedom House ). South Africa is about the only African country where the information base is growing apace. See, e.g., J.L. Gibson & G.A. Caldeira, "Defenders of Democracy? Legitimacy, Popular Acceptance, and the South African Constitutional Court" (2003) 65 J. Politics 1. Authoritative surveys done under the auspices of South Africa's Human Sciences Research Council (HSRC) have recently been published. See especially, Human Sciences Research Council, Public Attitudes in Contemporary South Africa: Inputs from an HRSC Survey (Cape Town: HSRC Press, 2002) 20-23 ("institutional trust"). See also U. Pillay, B. Roberts & S. Rule, South African Social Attitudes: Changing Times, Diverse Voices (Cape Town: HSRC Press, 2006).

417 Court. There is almost an unbroken trail of unanimity. There is indeed almost no

disagreement at all in the Court's human rights cases throughout the forty years covered

by our study. This clearly suggests that individual behaviour of the Justices is not a

significant factor in decision-making. In the least, it shows that institutional constraints

are sufficiently strong to suppress the impact of the personality or attitudinal factor.

However, this study does not go as far as to suggest that who gets appointed to the Court

makes no difference whatever to its policy output. Instead, in section III of chapter 3, we

suggested how the Court's recruitment regime may have affected its policy making

capacity. While sustainable activist decision-making depends on the availability of

institutional resources, activism is unlikely in the first place without rights-supportive

judges.5

Our framework assigns decisive weight to exogenous constraints on Supreme

Court decision-making. As such, our account differs from the explanation of strategic

judicial behaviour offered by Shannon Smithey.6 She argues that the expansion of judicial power does not depend nearly as much on external factors as on how judges

establish and maintain their authority through the specific decisions they make and the

manner they make them. According to this view, judges would always act in ways that

See C.R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago: University of Chicago Press, 1998) at 14; C. Harlow & R. Rawlings, Pressure Through Law (London/ New York: Routledge, 1992) at 308-10. See S.I. Smithey, Judicial Adaptation to the Uncertainties of Constitutional Transformation: The Canadian Supreme Court and the Courts of Appeal under the Charter of Rights and Freedoms (Ph.D. Thesis, Ohio State Univ., 1994) at 161 [unpublished] at c. 2 ("Strategic Activism in Interpreting the Charter") [hereinafter, Smithey, Judicial Adaptation to the Uncertainties of Constitutional Transformation]. This argument is extended cross-nationally (Canada, Israel, South Africa, United States, and the European Court of Justice) in Smithey, "Judges as Constitution Makers: Strategic Assertions of Judicial Authority," paper read at the Conference on Scientific Study of the Judiciary, 1999. Available online:

418 are calculated to maintain and possibly expand judicial power. Where their position is weak, judges use strategic activism as a means of simultaneously asserting judicial power and minimizing the risk of counter-attack by other political actors. Strategic activism therefore tends to be more pronounced during the early years, when a court is presumably relatively weak, and becomes progressively less as it matures in age and power. If this claim is true, the early reticence of the Supreme Court of Nigeria may in fact camouflage activist behaviour. If so, these cases, although understandably avoiding outcomes that may erode the Court's institutional power, should reveal a conscious pursuit of policy gains. What our discussion in the preceding chapters shows is that human rights decision­ making by the Supreme Court does not validate this claim.

This concluding chapter evaluates the performance of the Court during that period and identifies the critical institutional challenges of the immediate future. Much of this study, Chapters 3 and 4 and some of Chapter 5, discusses the organization and operation of the Supreme Court. The last section of the present chapter will suggest an agenda for reforming the present structure of the Court. An assessment of its performance based on a structural framework would yield important information about its structural maturity and perhaps its stability as an organizational entity,7 but not whether its power is growing. A functional rather than structural assessment of its institutional performance would do that job better. The functional framework adopted here is performance of an accountability function by the Supreme Court. We follow closely the methodology

7 See C.N. Tate, "Courts and Crisis Regimes: A Theory Sketch with Asian Case Studies" (1993) 46 Pol. Research Q. 311 [hereinafter Tate, "Courts and Asian Crisis Regimes"] (proposing a typology of structural concepts for comparing the constitutional and institutional performance of courts).

419 suggested by Siri Gloppen in her analysis of the accountability function of courts in

Tanzania and Zambia.8 The accountability function of courts refers to their ability to hold

political office-holders accountable. This evaluation of the Supreme Court is undertaken

in Section I. We expect that the performance of the Court would be directly related to its

institutionalization as an accountability institution in the Nigerian political system. The performance of the Court is consistent with this expectation. Although its performance

grew over the period covered by our study, the Supreme Court of Nigeria is yet to

develop a strong accountability function. Partly as a result, its human rights caseload

hardly expanded during the period.

How well a court performs the accountability function is directly related to its

capacity to say "no" to the political branches, and to "make it stick." This capacity is a function of that court's institutional power, not simply its assertiveness. Thus, an activist court whose decisions are routinely ignored by the government or legislature is weak, and would necessarily have a weak accountability function. Therefore, although activist decision-making contributes significantly to the expansion of institutional power of

Gloppen defines courts' accountability function as their ability to prevent illegitimate use of political power or to hold political power-holders to account. According to her, political accountability requires transparency, answerability, and controllability. Political accountability is a situation where political power-holders and organs exercise power in a way that 1. is transparent, in the sense that it enables other institutions — and the public - to see whether it is done in accordance with the rules, 2. where the power-holders are answerable in the sense of being obliged to provide reasons for their decisions in public, and 3. where there are institutional checks or control mechanisms in place to prevent abuse of power and ensure that corrective measures are taken in cases where the rules are violated. See S. Gloppen, "The Accountability Function of the Courts in Tanzania and Zambia" (2003) 10:4 Democratization 112-36, and Gloppen, "How to Assess the Political Role of the Zambian Courts" (working paper, Chr. Michelsen Institute, 2004) [hereafter Gloppen, "Political Role of the Zambian Courts"] [discussing methodology], available online . For the concept of accountability, see A. Schedler, "Conceptualizing Accountability" in A. Schedler, L. Diamond & M. Plattner, eds., The Self-Restraining State: Power and Accountability in New Democracies (Boulder: Lynne Rienner Publishers, 1999) 13-28.

420 courts, it may just as well result in shrinkage of power, such as where a government or legislature reacts defiantly to important policy interventions by a weak court, whether it be by non-compliance or a retaliatory counteraction. This risk means institutional expansion by courts is safe only where it is gradual.

Building on this, section II explains why the growth of the institutional power of the Supreme Court has been small and slow. We suggest that while its power grew visibly from the 1980s, the movement is not considerable. Nor are the gains secure, as the

Court does not have loyal powerful civil society constituencies to rally in the event that its independence or autonomy is threatened. In short, the Court's diffuse support is weak.

This weakness makes the Court reluctant to risk activism. This is vividly demonstrated by its experience in the aftermath of Lakanmi (1970) (reviewed in chapter 1 §4A). This dramatic assertion of authority and independence by a hitherto weak and lethargic court was a strategic move to seize a more visible role before the new military regime was able to consolidate. Indeed, it was clear even before this case that the Court was adroitly expanding its power relative to the regime. But Lakanmi was a decisive move, upon which the entire future of the nascent military dictatorship seemingly depended. It was no surprise at all that the regime reacted defiantly. Nor was it surprising also that without a social base to rally, the regime easily triumphed over the Court. Fortunately, the Court was spared. The limited response of the regime is consistent with the behaviour of the

Asian crisis regimes identified by of Neal Tate. Because of a concern for the appearance of constitutionality, these regimes prefer merely to restrict the scope and depth of courts'

421 decision-making by simply proclaiming the non-challengeability of decrees essential to

establishing and maintaining their rule.

The social base of the Supreme Court is weak largely because, as we have seen

(chapter 4 §3), the Court has failed to partner with social and political activists or the

legal intelligentsia. Although the press is visibly highly supportive, the Court does not

have a record of protecting press freedom. The impact of the limited support of the

Court's mass and attentive publics is aggravated by the absence of a competitive political

environment. The result is that the Supreme Court is weak.

Section III rounds off our study with suggested reform of aspects of the Court's

organization and operation. The context of the suggested reform agenda is our assessment

of the most important challenges of the Court today. None is more critical than the

challenges of institutionalization and of structural/ functional identity respectively. The

section also ties together various points touched upon in our discussion, in chapters 3

through 5, of the organizational and operational aspects of the Court.

I. ACCOUNTABILITY PERFORMANCE

According to Gloppen, courts' accountability performance depends both on their willingness to say 'no' when called for (manifest sanctioning), the extent to which their decisions are respected (compliance), and their actual influence on political behaviour

(latent authority). The accountability performance of a court on each score may be measured by certain indicators identified by Gloppen as follows:

Tate, "Courts and Asian Crisis Regimes," supra note 7.

422 • number or percentage and significance of cases in which courts decide against the State ("displayed judicial independence");10 • government compliance with specific decisions, and compliance over time ("manifest judicial authority"); and • preventive or disciplining function of judicial power ("latent judicial authority"), whereby the government or legislature anticipates court challenges by ensuring scrupulous adherence to law.

As we have seen, the number of successful Bill of Rights challenges in the

Supreme Court of Nigeria is small. Even as a ratio of an equally small human rights caseload the figure remains dismal. Although the situation in subsequent years was not very much different, this was particularly so between 1961 and 1966, as we saw in Table 1

(chapter 1). The performance of the Court is poorer yet when we look closely at the decisions. The Court seem to provide practically unqualified support for suppression of political speech and of, indeed, the political opposition. As a result, the Supreme Court

On the face, this criterion would seem to exclude strategic activism where the government is not specifically sanctioned by the court. This is in fact not so. Gloppen recognizes the significance of strategic activism, although she does not provide a specific benchmark for including such decisions: Meaningful accountability performance measures need to place importance on the significance of the 'blocking events' rather than their frequency, (although the latter also is relevant), and must also consider the substance of the courts' argument in politically significant decisions going either way. It should also be noted that it may not be obvious what the significance of a decision is - or whether a formally contrary ruling actually does inconvenience the State. It is thus crucial that the analysis is based on an in-depth understanding of the broader political situation. See Gloppen, "Political Role of the Zambian Courts," supra note 8. The emphasis on the significance rather than quantum of decisions unfavourable to the government is consistent with the methodology applied in our study (explained in the introductory chapter). See also, J. Finkel, "Supreme Court Decisions on Electoral Rules after Mexico's 1994 Judicial Reform: An Empowered Court" (2003) 35 J. Lat. Amer. Stud. 777-799 (arguing that because of their political significance, electoral rulings are a concrete and efficient way to measure the court's power in relation to other holders of political power). The "performance indicators" suggested by Gloppen are not self-sufficient. According to her, accountability performance of courts is also affected by their structural independence and institutionalization. Chapter I of the present study provides an extended discussion of these two factors in relation to the Supreme Court of Nigeria and, more generally, other African courts.

423 directly undermined the consolidation of democratic values and practices in the fledging postcolonial state. Two of these cases, Awolowo and Obi, involved the Leader of the

Opposition in Parliament and a leader of a minor opposition party respectively. The latter case was in fact a scandalous suppression of political speech. That this was a party leader in Parliament makes it all the more egregious. Similarly, Olawoyin involved the leader of the opposition in Northern Nigeria, an area where political suppression was particularly rife in the 1950s and 60s.

During the same period, the Court was also very reluctant to rein in legally unqualified administrative powers. This reticence is captured vividly in remarkable formalism in Merchant Bank and also Awolowo. The legacy of these cases endures.

Uncontrolled discretionary power continues to be vested in officials. The Supreme Court has also failed to indicate a proportionality test, or any other justification benchmark for that matter, to check gratuitous violation of rights and to provide a ready standard to determine whether legislative and administrative behaviour is measured. The Court's recent activism, in the 1980s and 90s, does not significantly contribute to its accountability

1 9 function, as none of the latter-day cases could be described as important politically.

Rights cases and other legal challenges of high political significance are few.

We saw in chapter 4 that there was practically no growth in the ratio of rights cases in the decisional output of the Court during the forty years studied (Figure 4.2). We attributed 11 Obi, Merchant Bank, and Awolowo are included in Table 1 and are discussed in chapter 1 §2 and chapter 5 § 1 respectively. 12 "Judicial power results from the interaction of three different components: the independent input of the court in producing politically significant outcomes that are complied with by other actors." See Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge: Cambridge University Press, 2003) at 252 [hereinafter Ginsburg, Constitutional Courts] [emphasis in original].

424 this primarily to the Court's reticence as a strong disincentive to potential rights litigators,

and to its failure to liberalize access. These supply-side constraints are in our view the

primary reason why rights cases are consistently at a low equilibrium. Because over the

four decades it was unable to significantly raise the equilibrium of rights cases, the

performance of the Supreme Court of Nigeria is definitely less than satisfactory.13

However, while this supply-side perspective reflects the strength of exogenous

constraints on the Court's decision-making, a complete explanation must go further. It

would also need to account as well for the demand-side of judicial policy making, as

Cornell Clayton has noted. "As reactive institutions, courts must have policy disputes

brought to them in the form of cases before they can make policy."14 The market for

Supreme Court human rights decision-making is very weak. Our study has indicated

several demand-side constraints. The voice of those whose rights are violated is often

unable to enter the legal system, and where it does, legal strategies are inadequate. Quality

legal services are not sufficiently accessible to the most vulnerable populations. Legal resources are limited, and public interest litigators and legal service organizations lack

See Ginsburg, ibid, at 74 ("a successful constitutional court in a new democracy will seek to shift from low-equilibrium judicial review to high equilibrium."). 14 C.W. Clayton, "The Supply and Demand Sides of Judicial Policy-Making (or, Why be So Positive about the Judicialization of Politics?)" (2002) 65 Law & Contemp. Probs. 69 at 77. See, generally, ibid, at 75-82. Demand for judicial policy making may have profound normative significance. Clayton argues, "the inability of the electoral political process to resolve important policy disputes... often pushes political mobilizations into other arenas: Social movements, interest groups, and elites in the elected branches begin to turn to courts and administrative agencies for policy goals that they cannot obtain from a disunified Constitutional Legislature. In this sense, courts are not unwelcome intruders into the democratic process, but invited (and perhaps necessary) release valves for democratic impulses that cannot be addressed through the ordinary legislative route." Ibid, at 77-78. As we noted earlier in the present study, in Africa, inaccessibility and non-transparency of the political process justifies taking policy issues to court. See Introduction, note 52 and accompanying text. Even without this barrier, marginalized groups, whose voice tends to be very weak in the electoral process, may see courts as a suitable platform for voicing their demands.

425 both the financial and organizational resources required for sustained court challenges.

Rights and cause advocacy groups are overdependent on foreign donor funding, and are in any case a marginal constituency of the Supreme Court. The legal profession is unreformed. Large or specialized law firms are practically nonexistent, hence resources that may be dedicated to sustained policy-setting rights litigation are limited. There is, finally, very little linkage between the profession and law schools.15

The manifest authority of the Supreme Court is also weak. On the face, it would in fact seem that the very opposite is true. Outside the periods of the military dictatorships, and compared with the treatment of lower court decisions, non-compliance by the government with specific decisions of the Supreme Court is in general highly exceptional.1 Even under military rule, almost the only counterattack on the Court was in the aftermath of Lakanmi, when that decision was not only reversed by legislation but the laws of the regime were made unreviewable by courts. In Gloppen's terms, however, "to determine government compliance with adverse court decisions the political situation must be followed over time (It is for example a common phenomenon that people released from police custody on court orders are rearrested shortly after.)."17 In measuring the manifest authority of courts compliance with particular decisions is therefore not conclusive.

It should also be considered whether the state only yields with regard to the particular case, or change behaviour patterns (repeatedly) sanctioned by the courts,

15 The supply-side constraints and demand-side variables are discussed in chapter 4 §1B and §3. 16 The finality of the Supreme Court is also an important factor. Frequently, the government may ignore unfavourable decisions of High Courts and even the Court of Appeal ostensibly because it has appealed or indicated intention to appeal, even where it has not obtained or sought a stay. 17 See Gloppen, "Political Role of the Zambian Courts," supra note 8 at 7.

426 as well as the institutional framework for pursuing claims originating from judicial decisions.18

From this perspective, the record of compliance with Supreme Court's decisions does not add up to considerable manifest authority. In the first place, the government is rarely unsuccessful in the Court as we have seen, and where it is, compliance has almost always been limited to the immediate parties in a given case and the remedies granted.

Other persons affected by any law or policy impugned or annulled by the Court typically have to pursue independent remedies in order to take advantage of the ruling. There has never been a general policy review as a result of a ruling of the Court. On the contrary, the particular official conduct or practice found unconstitutional or otherwise unlawful almost always remains official policy and continues to be enforced as such. Quite often, statutory provisions or regulations struck down by the Court remain in the statute book without modification.

The latent authority is perhaps the most important measure of the accountability function of courts anywhere. Gloppen observes that it is arguably the main mechanism by which firmly institutionalized courts exercise authority. The latent authority is indicated by the extent to which other actors are influenced by their anticipation of potential sanction by courts. Official policy or action is accordingly designed or implemented in a manner that makes it less likely to be struck down in the event of court challenge. "The fact that courts frequently intervene in policy-making processes," observes John Ferejohn,

"also means that other political actors, as well as groups seeking political action, have reason to take the possibility of judicial reaction into account. Proposals need to be framed

427 in a way to ensure that legislation will neither be struck down nor interpreted in undesirable ways. In order to achieve such a result, part of the policy debate over new legislation must aim at anticipating the response of legal institutions."19

Unfortunately, because the extent to which the behaviour of other actors is influenced by their anticipation of potential sanction by courts is not always obvious, effective measurement of their latent authority appears elusive. This makes assessing it less reliable than the other two indicators. Nonetheless, the extent of the disciplining function of judicial review may be gleaned from the behaviour of officials and political actors generally. According to Gloppen,

One possible path is to look at whether there are administrative processes to check for constitutionality in the drafting process of laws and policies in order to prevent adverse court decisions. Another path may be to analyse the extent to which issues of constitutionality are central in public and parliamentary debate, and whether threats of court action (or complaints to other accountability institutions) have a disciplining function.

This information is regrettably not readily available for Nigeria. However, given

the Supreme Court's reticence and weak manifest authority, it may be assumed that the

likelihood is that its latent authority also is not considerable. It would be clearly absurd if

a court's latent authority was greater than its manifest authority. At any rate, there is

certainly no evidence that this is so with the Supreme Court. If anything, one

J. Ferejohn, "Judicializing Politics, Politicizing Law" (2002) 65 Law & Contemp. Probs. 41 at 41- 42 [hereinafter Ferejohn, "Judicializing Politics"]. For an illustration, see B.M. Wilson, "Changing Dynamics: The Political Impact of Costa's Constitutional Court" in R. Sieder, L. Schjolden & A. Angel, eds., The Judicialization of Politics in Latin America (New York: Palgrave Macmillan, 2005) 47 at 57 (Costa Rican deputies modify bills in anticipation of potential ruling by the constitutional court). 20 Gloppen, "Political Role of the Zambian Courts," supra note 8 at 7 [emphasis added].

428 consequence of the failure of the Court to establish a strong norm of justification is that respect for rights is not a visible element of public policy making. Rights are gratuitously eroded by legislation, and officials routinely exert authoritarian and wide discretionary powers. The Supreme Court has missed several opportunities to set appropriate boundaries to public power, in particular, the draconian discretionary power of officials.

In summary, the record of the Supreme Court is unsatisfactory on all three performance indicators provided by Gloppen. The frequency and significance of the

Court's sanctioning of the government is very low. While specific compliance is generally good, the overall manifest authority of the Supreme Court is less than satisfactory. In our view, its latent authority is not any greater. This weak accountability performance is confirmed by its limited ability to scrutinize decision-making by public office-holders. Political accountability requires that power is exercised with transparency and that power-holders are obliged to provide reasons for their decisions. In short, the exercise of power, especially where rights are restricted, requires justification. By ensuring that the restriction of rights does not gratuitously exceed what is required for a legitimate public purpose, courts enable transparency and public scrutiny of exercise of power. This is a specific mandate of the Bill of Rights. Regrettably, the Supreme Court of

Nigeria has neglected this responsibility. By failing to establish a strong justification norm, the public power is largely unconstrained.

See chapter 5 §1.

429 II. THE EXPANSION OF INSTITUTIONAL POWER Activism grows with institutional power. This is because institutionalization, with a

significant institutional (diffuse) support, impels judicial assertiveness, and escalates the

political cost of non-compliance.22 What matters is not so much activism but the manifest

authority of courts: how often a court renders decisions sanctioning the government is not

nearly as significant as whether it is able to make them stick. Because to the extent that it

is either unable or rarely able to so, its institutional power is low. For weak courts,

activism is not likely to translate to power, unless where they are able to get away with

intervention in policy. In fact, non-compliance or a counterattack by the government or

other powerful actors may render an institutionally insecure court weaker and compliant.

(As the experience of the Zimbabwe Supreme Court teaches, activism by weak courts is a high-risk, presumably reckless, behaviour.23) Because of this, strategy is an important

In Canada, for example, where although the authority to override judicial decisions on the application of the Charter of Rights is explicitly reserved to Parliament and the Provincial legislatures, this override power quickly fell practically into desuetude. The rapid post-Charter ascendancy of judicial legitimacy simply meant that the political cost of override became too high. 23 The recent degradation of the Supreme Court of Zimbabwe from an independent-activist to an attenuated-activist court amply demonstrates the challenges of institutional expansion by African courts. We alluded to this development earlier in this study (See the introductory chapter in the present study; and chapter 1, notes 199-215 and accompanying text). From 1985 until its decline in 2001, the Court not only developed a very impressive mass of human rights caselaw that is widely cited in the Commonwealth and beyond but was also able to transform itself into a major national policy maker. For survey of the work of the Court, see A. de Bourbon, "Human Rights Litigation in Zimbabwe: Past, Present and Future" (2003) 3 Afr. Hum. Rts. L.J. 195; A.R. Gubbay, "The Protection and Enforcement of Fundamental Human Rights: the Zimbabwean Experience" (1997) 19 Hum. Rts. Q. 227. Experience soon exposed the meagreness of the Court's political resources. Its institutional support is very weak. While for a time specific compliance with its decisions was good, the government, through parliament, almost always counteracted by amending the constitution to reverse the Court. From 1981 until the governing party lost constitutional majority in parliament in 2000 (regained in 2005), fifty-eight amendments were made to the Declaration of Rights provisions of the Zimbabwe constitution, almost invariably to override a ruling of the Court or to pre-empt imminent constitutional challenge of legislation or policy (See chapter 1 of the present study, notes 199- 202 and accompanying text.). There was apparently very little or no political cost to the government for counteracting the Court in this manner, nor indeed was there any when it finally moved decisively against the Court in 2001. The weakness of the Zimbabwe court was the result partly of low institutional support and partly because of absence of political diffusion or power fragmentation. Until the national elections of

430 element in the behaviour of emergent courts. During the early years, when they are

presumably more insecure, courts are likely to avoid frontal confrontation with the

political branches. As these courts are constantly mindful of policy preferences of the

government, or other actors, molar expansion of institutional power is rarely possible.

Instead, because institutional resources are low, courts more often prefer to expand their

policy space gradually, and only where risk of a counter-attack by the political branches

is minimal or relatively low.

Since institutional expansion occurs over time, for many emergent courts,

sufficient time may not have elapsed for any meaningful longitudinal evaluation of the

development of their power. The relatively young age of the Supreme Court of Nigeria

may therefore be an important consideration in assessing whether the growth of its power

is satisfactory. We suggested early in this study, using Joel Verner's classification, that

the Supreme Court is a stable-reactive, rather than a reactive-compliant, institution.24

Despite an extended record of reticence, the Court, it must be remembered, has had very

limited space indeed to act relatively unconstrained in national policy making.25 Public

chastisement of the Court by the Prime Minister in the aftermath of Doherty v. Balewa,

2008 Zimbabwe was firmly in the grip of a dominant, hegemonic and authoritarian governing party. Political and civil society opposition are constantly harassed by the government, which, partly as a result, was never until now under any real risk of losing power. For a study, see S. Dansereau, "Liberation and Opposition in Zimbabwe" in H. Melber, ed., Limits to Liberation in Southern Africa: The Unfinished Business of Democratic Consolidation (Capetown: HSRC Press, 2003) 23-46. 24 J.G. Verner, "The Independence of Supreme Courts in Latin America: A Review of the Literature" (1984) 16 J. Lat. Amer. Studies 463. See discussion in the Introduction to the present study, notes 44-47 and accompanying text. 25 Ginsburg, Constitutional Courts, supra note 12 at 68.

431 very early in its life, apparently had a chilling effect, because, as we saw in chapter 1,

the Court did not sustain any other challenge to national legislation or policy until after

the fall of that government in 1966 (see Table 1). It is not that the Supreme Court was

necessarily overawed by the Prime Minister, but it was not in a position to engage in a

head-on confrontation with the government.

The Supreme Court's power during this and later periods reflects the level of its

institutionalization and the support of mass and attentive publics (diffuse support).

Expansion of the power of the Court is also constrained by the absence of a competitive

party system in Nigeria. The result is that, as with most emergent courts, even small

policy gains come with a constant risk of collision with the government, for which the

Court would most likely be put to the worse.

Lakanmi was a milestone in the Court's quest for expanded institutional power. It

was the first and, until quite recently, only time in the Commonwealth that a court

purported to subject an incumbent military dictatorship to the very constitution it

overthrew.27 This development was the high point of a strategic expansion of the power

of the Court vis-a-vis a nascent regime. Before this case, it would be recalled, in spite of

formal statutory immunity from judicial review, the Court already successfully asserted

the power to annul legislation of the Military Governors of the states of the Nigeria

federation that was inconsistent with that of the central government. With Lakanmi, the

26 I discuss this incident in chapter 1 note 125 and accompanying text. (The case is included in Table 1-) 27 See T. Mahmud, "Jurisprudence of Successful Treason: Coup d' Etat & Common Law" (1994) 27 Cornell Int'l L. J. 49 at 126 ("The only case where an incumbent usurper regime was refused validation by the courts was the Lakanmi case of Nigeria."). But see now J. Hatchard & T.I. Ogowewo, Tackling the Unconstitutional Overthrow of Democracies: Emerging Trends in the Commonwealth (London: Commonwealth Secretariat, 2003) at 50ff (discussing recent Fiji cases).

432 Court expanded this power in three important ways. First, by annulling a legislation of the Military Governor of Western Nigeria, not so much for conflict with federal law, but

because a legislation of the central government on the same subject was intended to

"cover the field." Secondly, more significantly, the Court also struck down a federal

legislation of the regime notwithstanding that its specific terms immunized it from judicial review. Finally, it ruled that in spite of the displacement of the constitutional government by a successful coup d'etat, the Nigerian Constitution of 1963 remained the supreme law, binding on the regime subject only to such extra-constitutional powers that are justified by the doctrine of necessity and "reasonably necessary to achieve the purpose which the Federal Military Government set out to fulfil."28

This was perhaps the Court's finest hour, even though the power it claimed for itself was lost almost as soon as it was pronounced. Here is a Court that raised its voice and spoke very firmly at a time when there was practically no political opposition in the country. Political parties were disbanded, and most of the political elite displaced from power by the military were co-opted by the new regime. Emergency rule was in force throughout the country. The nation emerged from a brutal 30-month civil war only three months before the Court announced its decision. The military government was exceedingly popular. Unlike the government which projected itself as a "corrective" regime, there was a public perception that the Court was protecting the discredited, corrupt political elite.29

28 Lakanmi v. Attorney General [1970] N.S.C.C. 143 at 164. 29 A leading national newspaper, for example, accused the Court of "giving the impression that fraud is being encouraged by legal technicalities." See New Nigerian, Tuesday, 12 May 1970, quoted in A. Ojo,

433 Although the Supreme Court emerged seemingly unscathed from this confrontation with the government, its psyche was bruised and its will weakened. The

Court recoiled completely from contesting the legal supremacy of the dictatorship and instead settled into the comfort zone of reticence during the next three decades. So remarkable was the passivity of the Supreme Court that a senior Justice of the Court of

Appeal (later briefly sitting on the Supreme Court) lamented that, "decisions of the

Supreme Court with respect to the inviolability of [the military government's] decrees, however their attributes, have created a situation where a court may without a careful understanding of those decisions find it difficult to wriggle out of a net that appears overwhelmingly suffocating in the administration of justice particularly with respect to interpreting ouster clauses."30

The limited growth of its power notwithstanding, the Supreme Court has a remarkable record of institutional stability, especially given that the country was under military dictatorships during two-thirds of the period studied. Assault on the authority of the Court has been minimal. Except for the counter-Lakanmi episode, there was no interference with its jurisdiction, nor, but for the two cases of 1975, with tenure of its

Justices. At least since the eighties tenure on the Court has been completely secure. The mark of a stable-reactive court, compared with the less powerful reactive-compliant court, according to Verner, is that the former is able to set general limits to executive, legislative, and administrative behaviour, and its decisions are routinely respected by the

"Public Law, the Military Government and the Supreme Court" in A.B. Kasunmu, ed., The Supreme Court of Nigeria 1956-1970 (Ibadan: Heinemann, 1977) 90 at 105. 30 Guardian Newspapers v. Attorney General [1995] 4 NWLR 703 at 739 (Pats-Acholonu JCA).

434 government. But it does not go as far as activist courts by attempting to make or change basic policies initiated or supported by the government. The capacity, and willingness, of the Supreme Court to set general limits to public power has increased over time. As we have seen, even though its manifest authority is not strong, non-compliance with decisions of the Supreme Court is in general highly exceptional.

It is the failure of the Court to significantly enlarge and consolidate its policy role over the four decades studied that has prevented it from becoming a viable actor in national policy making. As Tom Ginsburg has noted, to fulfil the important role of contributing to democratic stability and deliberation, courts must develop their own power over time by expanding their policy role.31 From a longitudinal perspective, in spite of a strong record of reticence, the institutional power of the Supreme Court shows some small growth during the period studied, especially in the late eighties and the nineties. For the future, however, perhaps even as early as the second decade of this century, the Court is likely to become significantly more powerful. This is a combined dividend of progressive institutionalization of the Court (discussed in chapter 1 §4) and rising institutional support respectively. At the present time though, this support is largely specific support associated with increasing popular satisfaction with its policy outputs in recent years. While this support is valuable, it is not nearly as significant as diffuse support (that is, support regardless of whether specific decisions are satisfactory), or legitimacy, which we believe continues to be low. Although Gibson, Calderia, and Baird have suggested that diffuse support could result from accumulated specific support over

31 See Ginsburg, Constitutional Courts, supra note 12 at 247.

435 time, there is always the danger that any decision that generates negative specific support

could easily have a long-term effect. Even one highly unpopular or controversial decision

could significantly erode support for the Court. This may also create distrust and less

resort to the Court. This, as we saw in chapter 4, partly accounts for the prolonged

dormancy of the federalism jurisdiction between the mid 1960s and the early eighties.

The slow, molecular expansion of the Court's policy role is also a function of the

extant non-competitive political environment. A principal flaw of the Nigerian political

system, for our purpose at least, is the lack of a significant diffusion of power. National

political power has always been monopolized by one dominant party, or the military,

during every period. The legislature is constantly under the shadow of that party or of the

executive power. Although unlike the experience elsewhere in Africa before the

nineties,32 Nigeria has never been officially under a one-party regime, power has always

been controlled by some hegemonic dominant party or alliance during the successive

periods of democratic rule. Except at the State or local council level, opposition parties

have never succeeded in taking power by elections. This low electoral turnover is also

because elections are far from credible. It is noteworthy that no governing party has ever

lost power through elections at the national level in Nigeria. Power is only successfully

wrested by military coups d'etat, with the ensuing dictatorship not unlike a dominant

ruling party type regime. In this environment of non-competitive politics, the prospect of judicial expansion is understandably dim. As there is very little risk of losing political

See supra, chapter 1 notes 168-170b and accompanying text.

436 power, dominant political parties, like Nigeria's, are likely to constrain constitutional

courts.323

In contrast, as Ramseyer has argued, the uncertainty of a competitive political

environment drives governing politicians as rational actors to value judicial

independence. Where a party system is fragmented, with the ruling and opposition

parties respectively roughly equal in strength, constitutional courts are likely to be strong

political players. The ruling party will be expected to cultivate a strong court as

"insurance" in the event that it loses political power, while parties out of power seek to

constrain the government by resorting to court challenges of official policy.34 A similar

situation is a fragmentation of power within the political branches, where control of the

executive and the legislature,35 or of the central government and the states, respectively,

a In the South African context of a dominant political party (the African National Congress), Theunis Roux argues that, it enables the Constitutional Court to make unpopular decisions despite the fact that the court has never enjoyed much public support, since such decisions are unlikely to be the subject of political reprisals so long as the court "fulfilled some functions useful to the political branches over the long run." See T. Roux, "Principle and Pragmatism on the Constitutional Court of South Africa" (2009) 7 Int'l J. Const. L. 106 at 111. 33 See J.M. Ramseyer, "The Puzzling (In)Dependence of Courts: A Comparative Approach" (1994) 23 J. Leg. Stud. 721. 34 For Ginsburg, political diffusion is the critical force in expansion of institutional power: it is the reason "why some courts are more willing to exercise the power of judicial review more than others, both across different countries and over time." Dominant parties are less likely to design open and powerful systems of judicial review and are less likely to tolerate powerful courts exercising independent power once the constitution enters into force. .. .Political diffusion creates more disputes for courts to resolve and hinders authorities from overruling or counteracting courts. In sum, political diffusion is good for judicial power. See Ginsburg, Constitutional Courts, supra note 12 at 261. 35 See M. Iaryczower, P.T. Spiller & M. Tommasi, "Judicial Independence in Unstable Environments, Argentina 1935-1998" (2002) 46 Am. J. Pol. Sci. 699. Ferejohn's "fragmentation hypothesis" argues that, "where the political branches cannot act, people seeking resolution to conflicts will tend to gravitate to institutions from which they can get solutions; courts (and associated legal processes) often offer such avenues. At least in the United States, with its system of checked legislative powers, a divided legislature cannot easily stop courts from making policy - even quite unpopular policies." See Ferejohn, "Judicializing Politics," supra note 19 at 55. Political diffusion also engenders a judicial self-

437 is not by the same party. The latter is clearly an important factor in the recent rise of the

federalism jurisdiction of the Supreme Court. This clearly confirms the expectation of a

positive impact on the power of courts of even limited political diffusion.36

In Nigeria, as in most of Africa, this power monopoly is aggravated by

neopatrimonial personal rule and clientage, and a relatively weak civil society. The

tendency, and temptation, to abuse political and administrative power, and to contain judicial power, is great. "Law itself," notes Yash Ghai, "becomes a commodity that only

the State may mobilize and manipulate. ...Limitations on the powers of the government

are inconceivable. So on the whole are challenges to the government to attempt to

•jo enforce human rights." Independent centres of power capable of countervailing State

power, and hence potentially powerful constituencies of courts, are either marginal or all

but completely absent.

perception of political importance. This explains, for instance, the growing assertiveness of the Supreme Court of Mexico since the reform of 1994 that expanded its jurisdiction and independence. Pilar Domingo attributes this activism to the Court's changing self-perception. While the reform has been very helpful, the unprecedented loss of parliamentary majority by the ruling PRI provided an important incentive for the new self-perception. See P. Domingo, "Judicialization of Politics: The Changing Political Role of the Judiciary in Mexico" in R. Sieder, L. Schjolden & A. Angel, eds., The Judicialization of Politics in Latin America (New York: Palgrave Macmillan, 2005) 21 at 37. 36 An additional factor here is the increased receptiveness of the Supreme Court to constitutional challenges against the federal government. The rise of federalism cases in the business of the Court in recent years (Figure 4.1) is mainly the result of centrifugal elements in Nigeria responding to a clearly receptive court over frustrating electoral politics. The significance of the supply side factor is clearly evident. Between 1960 and 1966 a similar political fragmentation had almost no impact on the federalism jurisdiction because of the powerful disincentive of the Court's highly deferential disposition at this time (see chapter 4 §1A). See R. Joseph, Democracy and Prebendal Politics in Nigeria: The Rise and Fall of the Second Republic (New York: Cambridge University Press, 1987); See also M. Bratton & N. van de Walle, "Neopatrimonial Regimes and Political Transitions in Africa" (1994) World Politics 453; N. van de Walle, "Africa's Range of Regimes" (2002) 13 J. Democracy 66. 38 Y. Ghai, "The Theory of the State in the Third World and the Problem of Constitutionalism. (1991) 6 Conn. J. Int'l L. 411, 421. For an extended exploration of this theme, see H.W.O. Okoth-Ogendo, "Constitutions without Constitutionalism: Reflections on an African Political Paradox" in D. Greenberg et al., eds., Constitutionalism and Democracy: Transitions in the Contemporary World (New York: Oxford University Press, 1973)65-82.

438 Peter Vondoepp rejects the view that the neopatrimonial political environment necessarily weakens the role of courts as important political players in Africa. Discussing the experience of Malawi and Zambia, Vondoepp finds that the governments of these countries have a real problem reining in the judiciary.39 Because of the high fluidity of political allegiances associated with neopatrimonialism, the uncertainty created by expectation of electoral turnover generates a powerful incentive structure for judges to take a position independent of the government. This argument does not significantly differ from the political diffusion hypothesis of Ginsburg and others. Nor does

Vondoepp's explanation work for Nigeria, where as we have already noted, electoral turnover at the national level is almost illusory. In addition, he correctly identifies the high visibility of foreign (Western) donors in African politics and economies as an important factor limiting the ability of the African governments to control the judiciary.

Because of this leverage, these governments are usually reluctant to risk donor displeasure. However, this is far less true of Nigeria than it is with most African countries. Although foreign donors have been highly influential in empowerment of civil society constituencies, their influence on the Nigerian government is relatively weak and insufficient to deter abuse of power. Public finance is far less dependent on donor funding in Nigeria than in almost every other country in Sub-Saharan Africa.41 A

39 P. Vondoepp, "The Problem of Judicial Control in Africa's Neopatrimonial Democracies: Malawi and Zambia" (2005) 120 Pol. Sci. Q. 275 [hereinafter Vondoepp, "The Problem of Judicial Control in Africa"]. 40 See chapter 4 note 180. 41 The importance of donor influence is discussed in Vondoepp, "The Problem of Judicial Control in Africa," supra note 39 at 287-89. Also, in Uganda, Erica Bussey has recently noted, "while [President] Museveni might wish to ignore the court's rulings, he is aware of the necessity of at least giving the appearance of respecting democratic procedures and the rule of law, since it is only by doing so that he can

439 measure of this is the fact that in 2006, it became the only African country to completely

pay off its external debt.42

Although the framework of the present study assigns primacy to constraints of

weak institutionalization/ limited institutional support and the political environment of

the Supreme Court, expansion of judicial power is not purely exogenously determined. 3

It depends also on how active judges are in advancing their role in government and

nurturing loyal constituencies. Consistent with the strategic view of judicial behaviour, judges, all things being equal, presumably act with a view to maximize judicial power.

The reality however is that for African courts, all things are far from being equal. They

work, in Ginsburg's terms, in very limited institutional tolerance zone. Aggressive

expansion of power by courts is often frustrated by non-compliance. Because

counterattack by the political branches can be especially drastic, as the experience of

Zimbabwe's Supreme Court shows, activist courts risk marginalization. The risk is

diminished only where the governing regime is weak, or where there is expectation of

electoral turnover. Still, whether in this particular environment the pursuit of institutional

expansion by African courts can be characterized benignly as a dialogue between courts

and the political branches is contestable.44 This much is obvious. Institutional weakness

maintain the support of Uganda's donor countries." E. Bussey, "Constitutional Dialogue in Uganda (2005) 48 J.Afr.L. Iatl5. 42 See "Nigeria Settles Paris Club Debt" BBC News (April 21, 2006), online: BBC News (reporting that Nigeria has paid off its multi-billion dollar Paris Club debt, becoming the first African nation to settle with its official lenders). 43 For a comparison of endogenous and exogenous constraints in positive institutional theory, see F. Maltzman, J.F. Spriggs & P.J. Wahlbeck, "Strategy and Judicial Choice: New Institutionalist Approaches to Supreme Court Decision-Making" in C.W. Clayton & H. Gillman, Supreme Court Decision-Making: New Institutionalist Approaches (Chicago: University of Chicago press, 1999) 43-63. 44 But see Bussey, "Constitutional Dialogue in Uganda," supra note 41. Bussey attempts a rationale of recent constitutional activism of Ugandan courts from the perspective of the Canadian theory of

440 discourages aggressive expansion of judicial power. In short, judicial reticence is both the result as well as a cause of the weakness of courts.

Nonetheless, courts could nurture valuable political constituencies by expanding access to public interest litigators and by taking seriously constitutional and public law challenges. The present situation of a complete denial of any form of public interest standing or intervention prevents the Supreme Court of Nigeria from building critical constituencies and thereby generating vital institutional support. The significance of this is borne out by the complete absence of any support by civil society groups and even the legal academy for the Court to resist the regime's counter-Lakanmi retaliation. This reluctance of the Court to expand access reflects its institutional character. As we pointed out in chapter 4, a willingness to liberalize standing is a mark of an activist court.45 The

Supreme Court is not one.

III. THE FUTURE OF THE COURT The Supreme Court of Nigeria is in transition. How it would transform over the long term is for the time being largely speculative. During the first forty years there was little structural or other institutional change. Indeed, almost the only significant structural alteration has been the emergence of the three-panel structure. In the immediate future the principal challenges of the Court as an organization are its institutionalization as well as institutional dialogue. For an extended defence of that framework, see K. Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Toronto: Irwin Law, 2001) at 175-204, 239-96, building on P.W. Hogg & A.A. Bushell, "The Charter Dialogue between Courts and Legislatures (or Perhaps the Charter of Rights isn't such a Bad Thing After All)" (1997) 35 Osgoode Hall L.J. 75. The Canadian theory is perhaps more relevant as a normative model (legitimizing judicial review) than a theory of how courts behave. For a critique of the dialogue theory's performance as a normative model, see L.B. Tremblay, "The Limits of Judicial Review: The Limits of Dialogue between Courts and Legislatures" (2005) 3 Int'l J. Const. L. 617. 45 See chapter 4 §3.

441 structural and functional maturation. These challenges include a lingering crisis of institutional and functional identity, the rationalization of its workload, the optimization of the present recruitment regime, and upgrading the quality of opinions in rights cases.

That is not to suggest that there are no major operational challenges as well. Indeed, we discuss some of them below in association with the organizational challenges of the

Court. In spite of these challenges, however, as we noted in chapter one, there is a clear indication of a progressive institutionalization of the Supreme Court. It is now firmly established as a permanent institution in Nigeria's legal and political order. While it is now not yet great, the Court's second half century should likely see the process of institutionalization accelerate, as this presumably increases with age. For now, however the capacity of the Court to respond effectively to a particularly challenging political environment, what Huntington calls adaptability, cannot as yet be taken for granted.

The institutional identity crisis of the Court is no longer the challenge it once was, but it is yet to be completely resolved. Its identity has crystallized steadily over the years.

Briefly, during its early life, non-permanent justices were prominent on the Court.

Indeed, from 1957 through the sixties, lower court judges temporarily assigned to the

Supreme Court dominated it.46 This tended to suppress the Court's identity as a separate institution. Even worse still, a High Court chief justiceship was generally regarded as more prestigious than a seat on the Supreme Court other than the Chief Justice of Nigeria.

Experience shows that leaving the Supreme Court for a High Court chief justiceship was

See supra, chapter 4 §2B.

442 seen as career advancement. By the close of the seventies, however, the practice of temporary assignment of lower court judges to the Supreme Court and the problem of proper ranking of the Justices were resolved. The use of ad hoc justices has not been resorted to since the eighties, and must now be considered out of the question. Even in the nineties when the Court was severely depleted, there was no temptation to revert to the old practice. As a matter of fact, a decade after the establishment of the Court of

Appeal, judges of the High Courts were no longer directly appointed to the Supreme

Court.48 And also its Justices now enjoy formal precedence over judges of other courts in

Nigeria.

But the Court is still mired in a functional identity crisis. Samuel Huntington suggested that the adaptability of organizations, a benchmark of their institutionalization, is partly according to their functional age, that is, whether they outlive their original functions. The Supreme Court has evolved from an intermediate court of appeal, subordinate to the Privy Council, to a final court of appeal. It has also shed almost all the original jurisdiction that was initially associated with it. The evolution of its decision­ making brings its structurally closer to the Supreme Court of India than either the

Supreme Court of Canada or the South African Constitutional Court. The Nigerian and

Indian courts are the quintessential final court of appeal in the Commonwealth: a court of general jurisdiction with its business comprising mainly routine caseload.49 Recruitment, docket, and decision-making structures of the two courts are similar. With maturation,

47 See supra, chapter 3 notes 77-79 and accompanying text. 48 The trend is charted in Figure 3.3, supra. 49 The caseload of the Supreme Court of Nigeria and the Indian Supreme Court respectively are discussed in chapter 4 §2A and the excursus to chapter 4 §2D.

443 this institutional structure may very well engender institutionalization of the Nigerian

Supreme Court, as has been the experience of its Indian counterpart.

However, although the dominant functional orientation of the Supreme Court of

Nigeria has always been error-correction, its functional identity actually remains far from settled. It has fluctuated between the contrasting visions of its original blueprint as a general court of appeal and the limited, discretionary jurisdiction under the 1976 court plan.50 Before that year the Court functioned basically as the sole appellate court of the

Nigerian judicial system. Because of this, it was unavoidable that the volume of appeals was large. However, the caseload situation was not different when it was an intermediate court of appeal, below the Privy Council, from its founding in 1956 until 1963, and cases rarely went beyond the Supreme Court.51 Thus, during the first two phases of the history of the Court, when it functioned as an intermediate court of appeal and as a final court respectively, there was no difference in its docket. However, the next phase, the creation of the present intermediate court of appeal in 1976, saw a revision of the jurisdiction of the Supreme Court. It was relieved of most of the mandatory non-constitutional appeals it was hitherto burdened with. The eminently sensible rationale of the reform, making a second appeal largely discretionary, was curiously abandoned only three years later.

Since then, access to the Supreme Court has been on similar terms as the Court of

Appeal.52 Thus, despite a changing structure of the Nigerian court system during these

See chapter 3 §2. See chapter 4 note 114.

444 phases of the Court's development, the business of the Supreme Court has been constant.

It is difficult to justify this.

Partly because of this absence of a distinct function, the Supreme Court has been ambivalent in its public law adjudication role. Even with the recent rise of the federalism jurisdiction, public law remains a minor aspect of the Court's agenda annually. Largely because potential rights litigators are shut out by an iron-cast, ill-thought restrictive access rule established in Adesanya, human rights and constitutional issues are marginal on the agenda. Although decided over two decades ago, and in spite of its flaws, there is no sign that the Court would change its mind imminently. We argued in chapter 4 that any rule which immunizes unconstitutional laws and policies, such as Adesanya, critically undermines constitutionalism, and it is neither good for the Court nor for the

Rule of Law.

The ambivalence of the Court in the development of public law has robbed it of a consistent leadership role in the judicial system. While it demonstrated commendable leadership during its so-called "Golden Age" of administrative review activism of the eighties and nineties, we have noted, for example, that the Court had no hesitation whatsoever in affirming State impunity as a principle of public law of perfect constitutional standing. In fact, during the last two decades of the period studied, it is instead the Court of Appeal that has provided leadership on the death penalty, application of international law, the right to passport, and subjugating the dictatorship to legality.

This case and its antecedents are discussed in chapter 4 §3C.

445 Third, closely related to the problem of the functional identity of the Supreme

Court is the challenge of caseload. The present caseload of the Court cannot be sustained.

We suggested in chapter 4 that unless controlled, the caseload should be expected to grow at progressively increasing rates. Today, putting aside the numerically marginal original jurisdiction, the docket of the Supreme Court is fed by ten divisions of the Court of Appeal, comprising a total of over sixty judges, sitting typically in panels of three. The rapid growth of the intermediate appellate court since its establishment thirty years ago is itself a strong indication of potential pressure on the Supreme Court.54 The future of the

Supreme Court depends as much on urgently pruning its caseload as on anything else.

The present proposals for reform of the Supreme Court submitted to the National

Assembly by the National Judicial Council in 2004 envisages a much leaner Court, with jurisdiction strictly limited to constitutional and other "important matters."55 Although this would be sufficient to rid the Court of most of its routine workload, it does not go as far as the proposal of the Public Service Reform Commission of the 1970s.56 The present proposal essentially rehashes the short-lived reform of 1976.

However, pressure on the Court's time cannot be measured solely by caseload.

There are many aspects of its operation that put unnecessary pressure on the Court's time.

Under the present practice civil cases are heard on Mondays and Tuesdays, with

54 See chapter 4 §3C. The official proposal by the judiciary (joint memorandum of the National Judicial Council, the National Judicial Institute, and the Supreme Court) canvasses reducing the number of Supreme Court Justices and restricting its jurisdiction to constitutional issues and "general issues of law." See "Constitution Review: Reduce Number of Supreme Court Justices -Belgore" Thisday (20 January 2004) 1. Available online (Justice Belgore was then Vice-Chairman of National Judicial Council and senior associate Justice of the Supreme Court; later Chief Justice of Nigeria). 56 The Commission's proposal is discussed in chapter 3 §2B.

446 Thursdays for criminal appeals. Wednesdays and Fridays are reserved for conference and announcement of decisions respectively. It is difficult to justify setting aside a full day for oral delivery of decisions. Thirty years ago, the Public Service Reform Commission lamented the "waste many hours of sitting time during the course of a session"57 from the practice. It recommended that judgments should simply be handed down. It is remarkable that Court has not modified the practice in any form. If anything it is even less justifiable today than when the recommendation was made given the present proliferation of individual opinions, which, we argued in chapter 5, by sheer volume alone undermines the institutional integrity of the Court.

The rotational sitting of the Court's three panels is also inefficient. The two-week recess between sittings means that, allowing for the annual vacation, it is impossible for any panel to sit for more than a total of four months every year. Concurrent sitting was rejected by the Court, understandably, to avoid the appearance of a permanent partition.

Nevertheless, the cost in time is excessive. The better solution, we argued in chapter 5, is for the Court to move closer to sitting per curiam or at least as a single panel, except perhaps for leave and certain interlocutory applications and routine criminal appeals.

Then of course the present size of the Court would no longer be necessary.

57 Report of The Public Service Review Commission (Lagos: Federal Government Printer, 1974) at para. 284. See also A.B. Kasunmu, "The Supreme Court of Nigeria: An Examination of its Composition and Functions" in A.B. Kasunmu, ed., The Supreme Court of Nigeria, supra note 29 1 at 44: "Much time would.. .be saved if the Court discarded the present practice that its every judgement regardless of its length must be read in open court. .. .It seems to be a waste of valuable time to read out judgments when the Court could have adopted the practice of appellate courts in some other common law jurisdictions of handing down its judgment in typed form to counsel on both sides but only reading the consequential orders made on the outcome of the appeal."

447 Hence a necessary corollary of reform of jurisdiction is pruning the Court itself.

Whether it emerges as a more mature institution would seem to depend a great deal on rationalizing the size of the Court. Most of the expansion occurred in the seventies and eighties. Although the present Constitution permits the National Assembly to increase the number of sitting Justices up to twenty-two, a third larger than it is at present, it is obvious that any addition to the present number would be highly counterproductive. As a matter of fact the Chief Justice has recently publicly voiced his opposition to further enlargement, and it is fairly certain that any viable reform of the Court must contemplate significant downsizing.

In spite of the urgency, imminent reform of the Supreme Court seems unlikely at the present time. Reform of the Court is not high on the legislature's agenda.

Fourth, a risk associated with sustained activism by the Court is a potential demand to open recruitment to political control. The present recruitment regime practically shuts out any political control or intervention, except for the confirmation power vested in the Senate of the National Assembly. Although even this is potentially highly significant, as the American experience shows, it is so far almost an unnecessary formality. But this is mainly because judges are not active policy makers, or at least, are certainly not perceived as such. However, even if they were, as long the extant practice of the preferment of senior appellate judges for Supreme Court recruitment is maintained,58 active political intervention in the confirmation process is likely to be counterproductive.

This is particularly because of the inflexibility imposed by the limited pool of candidates

58 See chapter 3 §3.

448 and a need to satisfy equity considerations. Inevitably, however, political input in selection of candidates will increase over time, and it is quite possible that the selection process may become sensitive to this and therefore anticipate potential adverse political reaction to a candidate for the Court.

The present recruitment regime has the special merit of minimizing political influence in the composition of the Supreme Court. As we argued in chapter 3, this is valuable safeguard of the independence of the Supreme Court, and it advances the

Court's institutionalization. However, we believe also that merit as well as equity could be meaningfully accommodated in the present recruitment process. It is particularly well- suited to the existing machinery that vests responsibility for recruitment essentially in the judiciary itself (National Judicial Council and the Judicial Service Commission). As we have seen, this is quite similar to the system that has worked well for the Supreme Court of India.

However, this system has been operated for a relatively short period in the Court's history. It is not yet clear whether it would over time improve diversity on the Supreme

Court, or whether it would reinforce the homogeneity that has characterized its entire history. No woman, for example, was appointed to the Court until its fiftieth year (2005).

Very rarely does any candidate come to the Court with extensive experience in public policy making or law reform. If that trend is maintained, in the immediate future at least,

449 the Court will presumably remain oriented more to formalism than mature and pragmatic adjudication.59

Finally, there is a need, perhaps above all else, to improve the quality of the opinions of the Supreme Court. It must move from its trademark formalism to mature adjudication. Some of the causes of the poor quality of opinions were discussed in chapter 5. Prominently, informational input in the decision-making making process is very limited. This is particularly evident in the Court's use, or the want of it, of transjudicial resources. Even with the stricture of the Court's traditional positivistic outlook, the caselaw and literature of the European Convention on Human Rights and the neo-Nigerian Bills of Rights, especially of the Caribbean, has been largely ignored. Of course, that little attention is paid to this and other helpful resources of foreign courts is partly a result of the Supreme Court's history as a captive court, beholden to English courts and legal mindset.

It is difficult, however, for the Justices to cope with volume of the resources of contemporary rights adjudication without adequate support, as is presently the case. The

Court should consider urgently assigning research assistants to the Justices, and acquiring direct access to the major electronic legal databases, and so on. This should be an aspect of a larger programme of building a stable and sustainable linkage between the Court and the legal academy. To be sure, that the Court has very little intellectual energy is partly because of its neglect by the law schools. There is no law school publication dedicated to the work of the Court (there is nothing akin to a supreme court review, whether

59 Of course, legalism is sometimes a pragmatic tactic. See R.A. Posner, How Judges Think (Cambridge, Mass.: Harvard University Press, 2008) at 230-265.

450 separately or as a section of a law review). Nor has any critical or scholarly biography of the Court ever been published. The only significant special study of the Court from the legal academy was three decades ago. In short, except for the precedential value of its decisions, the Court is of little scholarly interest to this branch of the legal profession.

Frankly, the casual observer is likely to gain a better sense of the work of the Supreme

Court from the newspapers than from law school publications.

There is probably little unfortunately the Supreme Court decision-making could have learned from the legal academy. The prevailing scholarly outlook of Nigerian law schools is perhaps as positivistic as the Supreme Court's. Paul Weiler could as well have been addressing the Nigerian situation when he observed, "too often the quality of our academic reflection matches the level of interest of our lawyers and judges in making use of them."60 But the Court can help. An open willingness to look to the academy for cues and usable information may spur a vigorous rights scholarship.

Apart from any consideration of an informational partnership, the Supreme Court needs to groom the legal academy into an actively loyal constituency. It would then become one of the civil society pillars of the Court. One of the tragedies of the trial of the

Supreme Court in the aftermath of Lakanmi was that not even one of the many scholarly commentaries on the case supported the Court. The tragedy was not so much that every one of these commentators would prefer the Court to take a narrowly positivistic, deferential approach to the powers claimed by the regime but that in a critical test of the

P.C. Weiler, "Of Judges and Scholars: Reflections in a Centennial Year" (1975) LIII Can. Bar Rev. 563 at 564.

451 will of the final court of the land, the legal academy unanimously validated the position of the regime.

The best that can hoped for in the present circumstances is that the influence of empirical and comparative law information in the Court's human rights decision-making would grow as this resource becomes more accessible to the Justices through lawyers' arguments and briefs, periodicals, seminars, and so on, and as the judges are provided research assistants and a ready access to legal information databases. In the immediate future, however, the role of transmitting this information to the Court will continue to rest primarily with rights advocacy and legal service organizations, because of specialized information available to them locally or through their foreign liaisons. Therefore, the use of these materials would increase as these groups become more active before the Court.

In addition, rights-supportive and law reform-minded judges are likely over the next several years to become more visible on the Court of Appeal, as such candidates move up from the various High Courts, which now have a considerable number of judges recruited directly from academic institutions and corporations, or from lawyers practising law after an academic career or graduate studies. The potential impact of this development is two-fold. In the first place, the quality and diversity of recruitment pool for the Supreme Court will be significantly enhanced. Secondly, the invariable sophistication of Court of Appeal opinions in rights cases reviewed by the Supreme Court would no doubt impact on the quality of the latter's work.

452 Postscript

THE COURT BEYOND 2000

Nearly a decade has elapsed since the period covered by this study. Almost the entire bench of 2000 has been replaced with new faces. Only three of the names included in Table 3.1 remain on the Court at the beginning of 2009. The seat of the Chief Justice has had three occupants since 2000. This rapid turnover confirms our findings in Chapter

3. The recruitment pattern also confirms the expectation that the Court of Appeal is now likely to exclusively provide candidates for the Supreme Court. All sixteen appointments since 2000 conform to this pattern. It follows therefore that the recruitment of Supreme

Court Justices may now be said to have become highly institutionalized, as our study anticipated.

It is still not possible to anticipate when the reform of the Court will be implemented, if ever. There have been no changes in the structure of the Court's business. Human rights cases are still marginal on the docket. The explanation provided in Chapter 4 remains very adequate. The decision-making resource of the Court is still limited, for reasons provided in Chapter 5, and the quality of its opinions in rights and constitutional cases, in our opinion, has not improved.

However, the public is generally pleased with the output of the Supreme Court in electoral and federalism cases, hence specific support for the Court is growing. But this is not a consistent pattern. Recently, the Court was widely vilified, and even accused of corruption, for affirming the election of the President, because the 2007 general election was widely, locally and internationally, seen as completely lacking credibility.

453 APPENDICES

Appendix 1* Sixth Schedule to Nigeria Deprivation of Life (Constitution) Order in Council, 1954 l.-(l)No person shall be deprived (Fundamental Rights)** intentionally of his life, save in the execution of the sentence of a court in respect of a criminal offence of which Appendices 1 and 1A are the original he has been found guilty. and definitive forms respectively of the (2) A person shall not be regarded Nigerian model bill of rights. Appendix 1 was constitutionalized the year before Nigeria's as having been deprived of his life in independence. But it is the version of the bill of contravention of sub-paragraph (1) of rights that appeared subsequently in the this paragraph if he dies as the result of Independence Constitution (Appendix 1A) that the use, to such extent and in such was the model for neo-Nigerian bills of rights in circumstances as are permitted by law, Africa and the Commonwealth. In Nigeria itself, as explained in Chapters 1 and 2, this bill of such force as is reasonably justifiable of rights has been re-constitutionalized almost half a dozen times since, with little else besides (i) for the defence of any person minor editorial changes. The Republican from violence or the defence Constitution of 1963 removed references to the of property; "Crown" in the bill of rights. (ii) in order to effect an arrest or The Nigeria (Constitution) (Amendment No. 3) Order in Council, 1959 to prevent the escape of a L.N. 228 of 1959, Supplement to Official person detained; Gazette Extraordinary No. 66, Vol. 46, 27th (iii) for the purpose of October 1959 at 534-B539. [Headings indicated suppressing a riot, for each section appear as marginal notes in the insurrection or mutiny; or text.] Unlike the Independence Constitution, the enforcement provision does not appear in the Sixth Schedule. Rather it is inserted as independent clause (s. 245) in the Constitution to this Order in their application of 1954 by L.N. 228: to a Region arises in the course of (1) Any question regarding the proceedings before any court provisions of the Sixth Schedule other than the High Court of the to this Order [in Council] in their Region that court may hear and application to a Region shall be determine the question. heard and determined by the High (3) Nothing in this section shall Court of the Region, and the High prevent any court established for Court shall have power to make a Region other than the High such orders, issue such writs and Court from exercising jurisdiction give such directions as it may in respect of any or all of the think fit for the purposes of matters referred to in subsection enforcing those provisions within (1) of this section in accordance the Region. with any provision in that behalf (2) If any question regarding the in any law in force in the Region. provisions of the Sixth Schedule (iv) in order to prevent the required instead of such commission by that person of service; a criminal offence. (c) any labour required in the (3) The use of force in any part of event of an emergency or Nigeria in circumstances in which and calamity threatening the life to the extent to which it would be or well-being of the authorized in that part on the first day of community; or November, 1959, by the Criminal Code (d) any labour that forms part of Law established by the Criminal Code normal communal or other Ordinance, as amended, shall be civil obligations. regarded as reasonably justifiable for the purposes of sub-paragraph (2) of Deprivation of Personal Liberty this paragraph. 4.-(1) No person shall be deprived of his personal liberty save in the Inhuman Treatment following cases and in accordance with 2.-(l)No person shall be subjected to a procedure permitted by law — torture or to inhuman or degrading (a) in the execution of the punishment or other treatment. sentence or order of a court (2) Nothing in this paragraph shall in respect of a criminal invalidate any law by reason only that it offence of which he has been authorizes the infliction in any part of found guilty or in Nigeria of any punishment that is lawful consequence of his unfitness and customary in that part on the first to plead to a criminal charge; day of November, 1959. (b) by reason of his failure to comply with the order of a Slavery and Forced Labour court or in order to secure 3.-(l)No person shall be held in the fulfilment of any slavery or servitude. obligation imposed upon (2) No person shall be required to him by law; perform forced labour. (c) for the purpose of bringing (3) For the purpose of this him before a court of law in paragraph "forced labour" does not execution of an order of a include — court or upon reasonable (a) any labour required in suspicion of his having consequence of the sentence committed a criminal or order of a court; offence or to such extent as (b) any labour required of may be reasonably necessary members of the armed forces to prevent his committing a of the Crown in pursuance of criminal offence; their duties as such or, in the (d) in the case of a minor, for case of persons who have the purpose of his education conscientious objections to or welfare; military service, any labour (e) in the case of persons suffering from infectious or

455 contagious disease, persons or a police force, as the case may be, in of unsound mind, persons respect of an offence of which he has addicted to drugs or alcohol been found guilty and which is or vagrants, for the purpose punishable by such detention. of their care or treatment or the protection of the Determination of Rights community; or 5. -(1) hi the determination of his civil (f) for the purpose of preventing rights and obligations a person shall be the unlawful entry of any entitled to a fair hearing within a person into Nigeria or for the reasonable time by a court or other purpose of effecting the tribunal established by law and expulsion, extradition or constituted in such a manner as to other lawful removal from secure its independence and Nigeria of any person or the impartiality: taking of proceedings Provided that nothing in this sub­ relating thereto. paragraph shall invalidate any law by (2) Any person who is arrested or reason only that it confers on any detained shall be promptly informed of person or authority power to determine the reason for his arrest or detention and questions arising in the administration given particulars of any criminal of a law that affect or may affect the offence with which he is charged. civil rights and obligations of any (3) Any person who is arrested or persons. detained in accordance with head (c) of (2) Whenever a person is charged sub-paragraph (1) of this paragraph with a criminal offence, he shall, unless shall be brought before a court without the charge is withdrawn, be entitled to a undue delay, and if he is not tried within fair hearing within a reasonable time by a reasonable time he shall (without a court. prejudice to any further proceedings (3) The proceedings of a court or that may be brought against him) be the proceedings of any tribunal relating released either unconditionally or upon to the matters mentioned in sub­ such conditions as are reasonably paragraph (1) of this paragraph necessary to ensure that he appears for (including the announcement of the trial at a later date. decisions of the court or tribunal) shall (4) Any person who is unlawfully be held in public: arrested or detained shall be entitled to Provided that - compensation. (a) a court or such a tribunal (5) Nothing in this paragraph shall may exclude from its invalidate any law by reason only that it proceedings, persons other authorizes the detention for a period not than the parties thereto in the exceeding three months of a member of interest of defence, public the armed forces of the Crown or a order, public morality, the member of a police force in the welfare of minors, the execution of a sentence imposed by an protection of the private officer of the armed forces of the Crown lives of the parties, or to

456 such extent as it may Provided that nothing in this sub­ consider necessary by reason paragraph shall invalidate any law by of special circumstances in reason only that it imposes upon any which publicity would be such person the burden of proving contrary to the interest of particular facts. justice; and (5) Every person charged with a (b) if in any proceedings before criminal offence shall be entitled — a court or such a tribunal, the (a) to be informed promptly, in Governor-General or (in the the language that he case of proceedings in a understands and in detail, of court or tribunal in a Region the nature of the offence; or the Southern Cameroons*) (b) to be given adequate time the Governor or the and facilities for the Commissioner of the preparation of his defence; Cameroons,* as the case may (c) to defend himself in person be, certifies that it would not or by legal representatives of be in the public interest for his own choice; any matter to be publicly (d) to examine in person or by disclosed, the court or his legal representative the tribunal shall make witnesses called by the arrangements for evidence prosecution before any court relating to that matter to be and to obtain the attendance heard in camera and shall and carry out the take any other action as may examination of witnesses to be necessary or expedient to testify on his behalf before prevent disclosure of the the court on the same matter, including (without conditions as those applying prejudice to the generality of to the witnesses called by the the foregoing) such action prosecution; for that purpose as the (e) to have without payment the Governor-General may by assistance of an interpreter if regulations prescribe. he cannot understand the (4) Every person who is charged language used at the trial of with a criminal offence shall be the offence: presumed to be innocent until he is Provided that nothing in this proved guilty: sub-paragraph shall invalidate any law by reason only that it prohibits legal representation in native courts. [* Until 1961, Southern Cameroons (sometimes stated in the text simply as the (6) When any person is tried for any "Cameroons") was administered by the United criminal offence, the court shall keep a Kingdom, as a Mandatory Power. It was record of the proceedings, and the administratively part of Nigeria during British accused or any person authorized by colonial rule.] him in that behalf shall be entitled to

457 obtain copies of the record within a (b) for the purpose of protecting reasonable time upon payment of such the rights and freedom of fees as may be prescribed by law. other persons. (7) No person shall be held to be guilty of a criminal offence on account Freedom of Conscience of any act or omission that did not, at 7. -(1) Every person shall be entitled to the time it took place, constitute such an freedom of thought, conscience and offence, and no penalty shall be religion, including freedom to change imposed for any criminal offence his religion or belief and freedom, either heavier that the penalty in force at the alone or in community with others and time the offence was committed. in public or in private, to manifest and (8) No person who shows that he propagate his religion or belief in had been tried by any competent court worship, teaching, practice and for a criminal offence and either observance. convicted or acquitted shall again be (2) No person attending any place tried for that offence or for an offence of education shall be required to receive having the same ingredients as that religious instruction or to take part in or offence save upon the order of a attend any religious ceremony or superior court; and no person who observances if such instruction, shows that he has been pardoned for a ceremony or observances relate to a criminal offence shall again be tried for religion other than his own. that offence. (3) No religious community or (9) No person who is tried for a denomination shall be prevented from criminal offence shall be compelled to providing religious instruction for give evidence at the trial. pupils of that community or (10) No person shall be convicted of denomination in any place of education a criminal offence unless that offence is maintained wholly by that community defined and the penalty thereof is or denomination. prescribed in a written law. (4) Nothing in this paragraph shall invalidate any law that is reasonably Private and Family Life justifiable in a democratic society — 6. -(1) Every person shall be entitled to (a) in the interest of defence, respect for his private and family life, public safety, public order, his home and his correspondence. public morality, public (2) Nothing in this paragraph shall health; or invalidate any law that is reasonably (b) for the purpose of protecting justifiable in a democratic society — the rights and freedom of (a) in the interest of defence, other persons, including public safety, public order, their rights and freedom to public morality, public observe and practise their health or the economic well- religions without the being of the community; or unsolicited interference of members of other religions.

458 Freedom of Expression (a) in the interest of defence, 8. -(1) Every person shall be entitled to public safety, public order, freedom of expression, including public morality, public freedom to hold opinions and to receive health; or and impart ideas and information (b) for the purpose of protecting without interference. the rights and freedoms of (2) Nothing in this paragraph shall other persons; or invalidate any law that is reasonably (c) imposing restrictions upon justifiable in a democratic society — persons holding office under (a) in the interest of defence, the Crown, members of the public safety, public order, armed forces of the Crown public morality, public health; or or members of a police (b) for the purpose of protecting force. the rights, reputations and freedom of other persons, Freedom of Movement preventing the disclosure of 10. -(1) Every person to whom this information received in paragraph applies is entitled to move confidence, maintaining the freely throughout Nigeria and to reside authority and independence of in any part thereof; and no such person the courts, or regulating shall be expelled from Nigeria or telephony, wireless refused entry thereto. broadcasting, television, or the (2) Nothing in this paragraph exhibition of cinematograph shall invalidate any law that is films; or reasonably justifiable in democratic (c) imposing restrictions upon society - persons holding office under (a) restricting the movement or the Crown, members of the residence of any person armed forces of the Crown within Nigeria in the interest or members of a police of defence, public safety, force. public order, public morality or public health; or Freedom of Peaceful Assembly and (b) for the removal of persons Association from Nigeria to be tried 9. -(1) Every person shall be entitled to outside Nigeria for criminal assemble freely and associate with other offences or to undergo persons and in particular he may form imprisonment outside or belong to trade unions and other Nigeria in execution of associations for the protection of his sentences of courts in interests. respect of criminal offences (2) Nothing in this paragraph shall of which they have been invalidate any law containing any found guilty. provisions that are reasonably (3) Nothing in this paragraph justifiable in a democratic society - shall invalidate any law by reason only that it imposes restrictions with respect

459 to the acquisition of land or other recognized by law under the property in Nigeria or any part thereof. age of eighteen years of a (4) This paragraph applies to any person to whom any of the person who belongs to Nigeria. foregoing applies. (5) For the purpose of this paragraph a person shall be deemed to Freedom from Discrimination belong to Nigeria if he is a British 11. -(1) A person of a particular subject or a British protected person and community, tribe, place of origin, religion or political opinion shall not by (a) was born in Nigeria or of reason only that he is such a person — parents who at the time of (a) be subjected either expressly his birth were ordinarily by, or in the practical resident in Nigeria; or application of, any law or (b) has been ordinarily resident any executive or in Nigeria continuously for a administrative action of any period of seven years or government in Nigeria to more and since the disabilities or restrictions to completion of such a period which persons of other of residence has not been communities, tribes, places ordinarily resident of origin, religions or continuously for a period of political opinions are not seven years or more in any made subject; or other part of Her Majesty's (b) be accorded either expressly dominions; or by, or in the practical (c) has obtained the status of a application of, any law or British subject by reason of any such executive or the grant by the Governor of administrative action or Nigeria or the Governor- privilege or advantage that is General of a certificate of not conferred on persons of naturalization under the other communities, tribes, British Nationality and places of origin, religions or Status of Aliens Act, 1914, political opinions. the [Nigerian] Naturalization (2) Nothing in this paragraph shall of Aliens Ordinance or the invalidate any law by reason only that British Nationality Act, 1948; or (a) it prescribes qualifications (d) is the wife of a person to for service in an office under whom the foregoing heads the Crown or as a member of applies not living apart from the armed forces of the such a person under a decree Crown or a member of a of a court or a deed of police force or for the separation; or service of a body corporate (e) is the child, stepchild or directly established by any child adopted in a manner

460 law enacted by any Interpretation legislature in Nigeria; 12. In this Schedule, unless it is (b) it imposes restrictions with otherwise expressly provided or respect to the appointment of required by the context — any person to an office under "court" means the Federal Supreme the Crown or as a member of Court, the High Court of a Region or the armed forces of the the Southern Cameroons or Lagos or a Crown or a member of a court established under section 142, police force or for the 142D or 143 of this Order (other than service of a body corporate a court-martial), and includes the directly established by any Judicial Committee of Her Majesty's law enacted by any Privy Council; legislature in Nigeria; Provided that, in relation to a member (c) it imposes restrictions with of the armed forces of the Crown it respect to the acquisition by also includes a court-martial; any person of land or other "law" includes an unwritten rule of property in Nigeria or any law; part thereof; "member of the armed forces of the (d) it imposes restrictions upon Crown" includes any person who is the employment, movements subject to military law; or residence within Nigeria "member of a police force" includes a of persons to whom person who is subject to any law paragraph 10 of this relating to the discipline of a police Schedule does not apply or force; provides for the expulsion of "minor" means a person who has not such persons from Nigeria or attained the age of general legal the refusal to allow them to capacity under any law in force in enter Nigeria; or Nigeria; (e) it imposes any disability or "native court" means a court restriction or accords any established by or under the Naive privilege or advantage that, Courts Law, 1956, or the Moslem having regard to its nature Court of Appeal Law, 1956, of the and to special circumstances Northern Region, the Customary pertaining to the persons to Courts Law, 1957, of the Western whom it applies, is Region, the Customary Courts Law, reasonably justifiable in a 1956, of the Eastern Region, or the democratic society. Customary Courts Law, 1956, of the Southern Cameroons, as amended, or any law replacing any of those laws.

461 Appendix 1A

Independence Constitution of the Criminal Code Ordinance, as amended, Federation of Nigeria 1960, Ch. 3* shall be regarded as reasonably [Fundamental Rights] justifiable for the purposes of this section. Deprivation of life 17. -(1) No person shall be deprived Inhuman treatment intentionally of his life, save in 18 -(1) No person shall be subjected to execution of the sentence of a court in torture or to inhuman or degrading respect of a criminal offence of which punishment or other treatment. he has been found guilty. (2) Nothing in this section shall (2) A person shall no be regarded invalidate any law by reason only that it as having been deprived of his life in authorizes the infliction in any part of contravention of this section if he dies Nigeria of any punishment that was as the result of the use, to such extent lawful and customary in that part on the and in such circumstances as are first day of November 1959. permitted by law, of such force as is reasonably justifiable - Slavery and forced labour (a) for the defence of any person 19 -(1) No person shall be held in from violence or for the slavery or servitude. defence of property; (2) No person shall be required to (b) in order to effect an arrest or perform forced labour. to prevent the escape of a (3) For the purposes of this section person detained; "forced labour" does not include — (c) for the purpose of (a) any labour required in suppressing a riot, consequence of the sentence insurrection or mutiny; or or order of a court; (d) in order to prevent the (b) any labour required of commission by that person members of the armed forces of a criminal offence. of the Crown in pursuance of (3) The use of force in any part of their duties as such or, in the Nigeria in circumstances in which and case of persons who have to the extent to which it would have conscientious objections to been authorized in that part on the first service in the armed forces, day of November 1959, by the Code of any labour required instead Criminal Law established by the of such service; (c) any labour required in the Constitution of the Federation of event of any emergency or Nigeria, being second schedule to the Nigeria calamity threatening the life (Constitution) Order in Council L.N. 159 of or well-being of the 1960, Supplement to Official Gazette community; or Extraordinary No. 62, Vol. 67, 30th September 1960B221atB240-B247.

462 (d) any labour that forms part of addicted to drugs, alcohol or a normal communal or other vagrants, for the purpose of civil obligations. their care or treatment or the protection of the community; Deprivation of personal liberty or 20. -(1) No person shall be deprived of (f) for the purpose of preventing his personal liberty save in the the unlawful entry of any following cases and in accordance with person into Nigeria or for the a procedure permitted by law - purpose of effecting the (a) in consequence of his expulsion, extradition or unfitness to plead to a other lawful removal from criminal charge, in execution Nigeria of any person or the of the sentence or order of a taking of proceedings court in respect of a criminal relating thereto. offence of which he has been (2) Any person who is arrested or found guilty or in the detained shall be promptly informed, in execution of the order of a language that he understands, of the court of record punishing reasons for his arrest or detention. him for contempt of itself; (3) Any person who is arrested or (b) by reason of his failure to detained in accordance with paragraph comply with the order of a (c) of subsection (1) of this section shall court or in order to secure be brought before a court without undue the fulfilment of any delay and if he is not tried within a obligation imposed upon reasonable time he shall he shall him by law; without prejudice to any further (c) for the purpose of bringing proceedings that may be brought against him before a court in him) be released either unconditionally execution of the order of a or upon such conditions as are court or upon reasonable reasonably necessary to ensure that he suspicion of his having appears for trial at a later date. committed a criminal (4) Any person who is unlawfully offence or to such extent as arrested or detained shall be entitled to may be necessary to prevent compensation. his committing a criminal (5) Nothing in this section shall offence; invalidate any law by reason only that it (d) in the case of a person who authorizes the detention for a period not has not attained the age of exceeding three months of a member of twenty-one years, for the the armed forces of the Crown or a purpose of his education or member of the police force in execution welfare; of a sentence imposed by an officer of (e) in the case of persons the armed forces of the Crown or a suffering from infectious or police force, as the case may be, in contagious disease, person respect of an offence punishable by of unsound mind, person

463 such a detention of which he has been circumstances in which found guilty. publicity would be contrary to the interest of justice; and Determination of Rights (b) if in any proceedings before a 21. -(1) In the determination of his civil court or such a tribunal a rights and obligations a person shall be Minister of the Government of entitled to a fair hearing within a the Federation or a Minister of reasonable time by a court or other the Government of a Region tribunal established by law and certifies that it would not be in constituted in such a manner as to the public interest for any secure its independence and matter to be publicly disclosed, impartiality: the court or tribunal shall make Provided that nothing in this arrangements for evidence subsection shall invalidate any law by relating to that matter to be held reason only that it confers on any in camera and shall take such person or authority power to determine other action as may be questions arising in the administration necessary or expedient to of a law that affect or may affect the prevent the disclosure of the civil rights and obligations of any matter. person. (4) Every person who is charged (2) Whenever any person is with a criminal offence shall be charged with a criminal offence, he presumed to be innocent until he is shall, unless the charge is withdrawn, be proved guilty: entitled to a fair hearing within a Provided that nothing in this reasonable time by a court. section shall invalidate any law by (3) The proceedings of a court or reason only that the law imposes upon the proceedings of a tribunal relating to any such person the burden of proving the matters mentioned in subsection (1) particular facts. of this section (including the (5) Every person who is charged announcement of the decisions of the with a criminal offence shall be court or tribunal) shall be held in public: entitled — Provided that — (a) to be informed promptly, in (a) a court or such a tribunal may the language he understands exclude from its proceedings and in detail, of the nature of persons other than the parties the offence; thereto in the interests of (b) to be given adequate time defence, public safety, public and facilities for the order, public morality, the preparation of his defence; welfare of persons who have (c) to defend himself in person not attained the age of twenty- or by legal representatives of one years, the protection of the his own choice; private lives of the parties or to (d) to examine in person or by such extent as it may consider his legal representatives the necessary by reason of special witnesses called by the prosecution before any court (8) No person who shows that he and to obtained the has been tried by any competent court attendance and carry out the for a criminal offence and either examination of witnesses to convicted or acquitted shall again be testify on his behalf before tried for that offence or for a criminal the court on the same offence having the same ingredients as conditions as those applying that offence save upon the order of a to the witnesses called by the superior court; and no person who prosecution; and shows that he has been pardoned for a (e) to have without payment the criminal offence shall again be tried for assistance of an interpreter if that offence. he cannot understand the (9) No person who is tried for a language used at the trial of criminal offence shall be compelled to the offence: give evidence at the trial. Provided that nothing in this subsection (10) No person shall be convicted shall invalidate any law by reason only of a criminal offence unless that offence that the law prohibits legal is defined and the penalty therefore is representation in a court established by prescribed in a written law: or under the Native Courts Law, 1956, Provided that nothing in this the Sharia Court of Appeal Law, 1960, subsection shall prevent a court of or the Court of Resolution Law, 1960, record from punishing any person for of Northern Nigeria, the Customary contempt of itself notwithstanding that Courts Law, 1957, of Western Nigeria, the act or omission constituting the or the Customary Courts Law, 1956, of contempt is not defined in a written law Eastern Nigeria, as amended, or any law and the penalty therefore is not so replacing any of those laws. prescribed. (6) When a person is tried for any criminal offence, the court shall keep a Private and family life record of the proceedings and the 22. -(1) Every person shall be entitled accused person or any person to respect for his private and family life, authorized by him in that behalf shall be his home and his correspondence. entitled to obtain copies of the record (2) Nothing in this section shall within a reasonable time upon payment invalidate any law that is reasonably of such fee as may be prescribed by justifiable in a democratic society — law. (a) in the interest of defence, (7) No person shall be held to be public safety, public order, guilty of a criminal offence on account public morality, public of any act or omission that did not, at health or the economic well- the time it took place, constitute such an being of the community; or offence and no penalty shall be imposed (b) for the purpose of protecting for any criminal offence heavier than the rights and freedom of the penalty in force at the time the other persons. offence was committed.

465 Freedom of Conscience and impart ideas and information 23. -(1) Every person shall be entitled without interference. to freedom of thought, conscience and (2) Nothing in this section shall religion, including freedom to change invalidate any law that is reasonably his religion or belief and freedom, either justifiable in a democratic society — alone or in community with others, and (a) in the interest of defence, in public or in private to manifest and public safety, public order, propagate his religion or belief in public morality or public worship, teaching, practice and health; observance. (b) for the purpose of protecting (2) No person attending any place the rights, reputations and of education shall be required to receive freedom of other persons, religious instruction or to take part in or preventing the disclosure of attend any religious ceremony or information received in observances if such instruction, confidence, maintaining the ceremony or observances relate to a authority and independence religion other than his own. of the courts or regulating (3) No religious community or telephony, wireless denomination shall be prevented from broadcasting, television, or providing religious instruction for the exhibition of pupils of that community or cinematograph films; or denomination in any place of education (c) imposing restrictions upon maintained wholly by that community persons holding office under or denomination. the Crown, members of the (4) Nothing in this section shall armed forces of the Crown invalidate any law that is reasonably or members of a police justifiable in a democratic society - force. (a) in the interest of defence, public safety, public order, Peaceful assembly and association public morality or public 25. -(1) Every person shall be entitled health; or to assemble freely and associate with (b) for the purpose of protecting other persons and in particular he may the rights and freedoms of form or belong to trade unions and other other persons, including associations for the protection of his their rights and freedom to interests. observe and practise their (2) Nothing in this section shall religions without the invalidate any law that is reasonably unsolicited intervention of justifiable in a democratic society — members of other religions. (a) in the interest of defence, public safety, public order, Freedom of Expression public morality or public 24. —(1) Every person shall be entitled health; to freedom of expression, including (b) for the purpose of protecting freedom to hold opinions and to receive the rights, reputations and

466 freedom of other persons, (c) imposing restrictions upon preventing the disclosure of the movement or residence information received in within Nigeria of members confidence, maintaining the of the public service of the authority and independence Federation or the public of courts or regulating service of a Region, telephony, wireless members of the armed forces broadcasting, television, or of the Crown or members of the exhibition of a police force. cinematography films; or (4) Nothing in this section shall (c) imposing restrictions upon invalidate any law by reason persons holding office under only that the law imposes the Crown, members of the restrictions with respect to the armed forces of the Crown acquisition or use by any person or members of a police of land or of other property in force. Nigeria or any part thereof.

Freedom of movement Freedom from discrimination 26. -(1) Every citizen of Nigeria is 27. -(1) A citizen of Nigeria of a entitled to move freely throughout particular community, tribe, place of Nigeria and to reside in any part origin, religion or political opinion shall thereof; and no citizen of Nigeria shall not, by reason only that he is such a be expelled from Nigeria or refused person — entry thereto. (a) be subjected either expressly (2) Nothing in this section shall by, or in the political invalidate any law that is reasonably application of, any law in justifiable in a democratic society — force in Nigeria or any (a) restricting the movement or executive or administrative residence of any person action of the Government of within Nigeria in the interest the Federation or the of defence, public safety, Government of a Region to public morality or public disabilities or restrictions to health; which citizens of Nigeria of (b) for the removal of persons other communities are not from Nigeria to be tried made subject; or outside Nigeria for criminal (b) be accorded either expressly offences or to undergo by, or in the particular imprisonment outside application of, any law in Nigeria in execution of the force in Nigeria or any sentences of courts in executive or administrative respect criminal offences of action any privilege or which they have been found advantage that is not guilty; conferred on citizens of Nigeria of other

467 communities, tribes, places justifiable for the purpose of dealing of origin, religions or with the situation that exists during that political opinions. period of emergency. (2) Nothing in this section shall Provided that nothing in this section invalidate any law by reason only that shall authorise any derogation from the the law — provisions of section 17 of this (a) prescribes qualifications for Constitution except in respect of deaths service in an office under the resulting from acts of war or any Crown or as a member of the derogation from the provisions of armed forces of the Crown subsection (7) of section 21 of this or a member of a police Constitution. force or for the service of a (2) In this section "period of body corporate established emergency" means a period of directly by any law in force emergency for the purposes of section in Nigeria; 65 of this Constitution. (b) imposes restrictions with respect to the acquisition or Reference to Tribunal in Certain Cases use by any person of land or 29.-(1) Where — other property; or (a) any person is detained in (c) imposes restriction with pursuance of an Act of respect to the acquisition or Parliament derogating from use by any person of land or the provisions of section 20 other property; or of this Constitution; or (d) imposes any disability or (b) the movement or residence restriction or accords any of any person within Nigeria privilege or advantage that, who is a citizen of Nigeria is having regard to its nature lawfully restricted and to special circumstances (otherwise than by order of a pertaining to the persons to court) in the interest of whom it applies, is defence, public safety, reasonably justifiable in a public safety, public order, democratic society. public morality or public health, Derogation from fundamental rights that person shall be entitled 28. -(1) An Act of Parliament shall not to require that his case be invalid by reason only that it should be referred within provided for the taking, during periods one month of the beginning of emergency, of measures that of the period of detention or derogate from the provisions of section restriction and thereafter 17, 20, 21 or 27 of this Constitution but during that period at no such measures shall be taken in intervals of not more than pursuance of any such Act during any six months to a tribunal period of emergency save to the extent established by law and that that those measures are reasonably tribunal may make

468 recommendations amends or replaces any such law and concerning the necessity or does not — expediency of continuing the (a) add to the kinds of detention or restriction to the property that may be taken authority that ordered it; possession of or the rights Provided that such over and interests in authority, unless it is property that may be otherwise provided by law, acquired; shall not be obliged to act in (b) add to the purposes for accordance with any such which or circumstances in recommendation. which such property may (2) A tribunal established for the be taken possession of or purposes of this section shall be acquired; constituted in such a manner as to (c) make the conditions ensure its independence and impartiality governing entitlement to and its chairman shall be appointed by any compensation or the the Chief Justice of the Federation from amount thereof less among the persons qualified to practise favourable to any person in Nigeria as advocates or solicitors. owning or interested in the property; or Compulsory acquisition of property (d) deprive any person of 30. —(1) No property, movable or any such right as is immovable, shall be taken possession of mentioned in paragraph (bO compulsorily and no right over or of subsection (1) of this interest in any such property shall be section. acquired compulsorily in any part of (3) Nothing in this section shall Nigeria except by or under the be construed as affecting any general provisions of a law that — law — (a) requires the payment of (a) for the imposition or adequate compensation enforcement of any tax, therefore; and rate or due; (b) gives to any person (b) for the imposition of claiming such penalties or forfeitures for compensation a right of breach of the law, whether access for determination of under civil process or after his interest in the property conviction of an offence; and the amount of (c) relating to leases, tenancies, compensation, to the High mortgages, charges, bills of Court having jurisdiction in sale or any other rights or that part of Nigeria. obligations arising out of (2) Nothing in this section shall contracts; affect the operation of any law in force (d) relating to the vesting and on the thirty-first day of March, 1958, administration of the or any law made after that date that property of persons

469 adjudged or otherwise Special Jurisdiction of High Courts in declared bankrupt or relation to this Chapter insolvent, of persons of 31. — (1) Any person who alleges that unsound mind, of deceased any of the provisions of this Chapter has persons and of companies, been contravened in any territory in other bodies corporate and relation to him may apply to the High incorporate societies in the Court of that territory for redress. course of being wound up; (2) Subject to the provisions of (e) relating to the execution of section 108 of this Constitution, the judgments or orders of High Court of a territory shall have courts; original jurisdiction to hear and (f) providing for the taking of determine any application made to it in possession of property that pursuance of this section and may make is in a dangerous state or is such orders, issue such writs and give injurious to the health of such directions as it may consider human beings, plants or appropriate for the purpose of animals; enforcing, or securing the enforcement, (g) relating to enemy property; within that territory of any rights to (h) relating to trusts and which the person who makes the trustees; applications may be entitled may be (i) relating to limitation of entitled under this chapter. actions; (3) Parliament may make (j) relating to property vested provision with respect to the practice in bodies corporate directly and procedure of the High Courts of the established by any law in territories for the purposes of this force in Nigeria; section and may confer upon those (k) relating to the temporary courts such powers in addition to those taking of possession of conferred by this section as may appear property for the purposes to necessary or desirable for the purpose of any examination, of enabling those courts more investigation or enquiry; or effectively to exercise the jurisdiction (1) providing for the carrying conferred upon them by this section. out of work on land for the purpose of soil Interpretation conservation. 32. In this Chapter, unless it is (5) The provisions of this otherwise expressly provided or section shall apply in relation to the required by the context — compulsory taking of possession of "court" means any court of law property, movable or immovable, and in Nigeria (other than a court-martial) the compulsory acquisition of rights and includes Her Majesty in Council: over and interests in such property by or Provided that, in relation to a member on behalf of the Crown. of the armed forces of the Crown, it also includes a court-martial;

470 "law" includes unwritten rule of "member of a police force" law; includes a person who is subject to any "member of the armed forces of law relating to the discipline of a police the Crown" includes any person who is force. subject to naval, military or air force law;

471 Appendix 2

Supreme Court Act* [Excerpts]

An Act to amend and consolidate the "justice" means the Chief law relating to the Supreme Court Justice of Nigeria or any other Commencement justice of the Supreme Court and [2nd June 1960] any person lawfully acting as such; "magistrate's court" includes Short Title any district or similar court established 1. This Act may be cited as the by State law; Supreme Court Act. "matter" includes every Interpretation proceeding in court not in a cause; 2. In this Act, unless the context "Registrar" means the Chief otherwise requires - Registrar of the Supreme Court "appellant" includes a person or any registrar or deputy who has been convicted and registrar of that court; desires to appeal under the "rules of court" means rules of Constitution or under any Act or court made under or in law; pursuance of section 216 of the "cause" includes any action, suit Constitution; or other original proceeding "sentence" includes between a plaintiff and a recommendation; defendant; "suit" includes action; "Constitution" means the "Supreme Court" means the Constitution of the Federal Supreme Court of Nigeria Republic of Nigeria and any established under section 210 of Constitution substituted for it; the Constitution; "court below" means the court "verdict" includes the decision from which an appeal is brought; of a Judge or court as to whether "judgment" includes decision or or not the accused person is order; guilty in cases where such decision rests with the judge or court. Cap. 424 Laws of the Federation of Nigeria 1990 [Originally enacted as Federal Part I. —General Supreme Ordinance, No. 12 of 1960, Laws of the Federation of Nigeria 1960 at A43]. Number of Justices and tenure of office Headings indicated for each section appear as of Justices marginal notes in the text. References to the Nigerian Constitution in this statute are to the Constitution of 1979 (now superseded by the Constitution of 1999).

472 3. (1) The number of Justices of the Registrar of the Supreme Court and Supreme Court shall not exceed such registrars, deputy registrars and fifteen.1 other officers as may be deemed (2) Any person holding the office of a necessary. Justice shall vacate that office when he (2) The Chief Registrar and other attains the age of sixty-five years.2 officers appointed under subsection (1) of this section shall exercise such Precedence of Justices powers and perform such duties as may 4. The Chief Justice shall take be conferred or imposed upon them by precedence of the other Justices of the an Act or rules of court, and subject Supreme Court, and the other Justices thereto, by any directions of the Chief shall take precedence after the Chief Justice of Nigeria. Justice in accordance with the instructions of the President acting on Seal of Supreme Court the advice of the Advisory Judicial 7. The Supreme Court shall have and Committee. use as occasion may require a seal having a device or impression approved Salaries and Allowances of the Justices by the Chief Justice of Nigeria, with the of the Supreme Court inscription "The Supreme Court of 5. (1) There shall be paid to the Chief Nigeria." Justice of Nigeria and to each of the Justices such salaries and allowances as Process of Supreme Court may be prescribed by the National 8. (1) The process of the Supreme Assembly. Court shall run throughout the (2) The salaries and allowances Federation. payable under the provisions of this (2) Any judgment of the Supreme section shall be charged on and paid out Court shall have full force and effect in of the Consolidated Revenue Fund. the Federation and shall be enforceable by all courts and authorities in any part Officers of the Supreme Court of the Federation in like manner as if it 6. (1) The Federal Judicial Service were a judgment of the High Court of Commission may appoint a Chief that part of the Federation.

Practice and Procedure 11 Cf. Nigeria Constitution of 1999, s. 230(2): "The Supreme Court of Nigeria shall 9. Subject to the provision of any other consist of (a) the Chief Justice of Nigeria; and enactment the practice and procedure of (b) such number of Justices of the Supreme the Supreme Court shall be in Court, not exceeding twenty-one, as may be accordance with this Act and Rules of prescribed by an Act of the National Court. Assembly."] [2 See now Nigeria Constitution of 1999, Number of Justices of the Supreme s. 291 (1): "a judicial officer appointed to the Court Supreme Court or the Court of Appeal may 10. The Supreme Court shall be duly retire when he attains the age of sixty-five and constituted if it consists of not less than he shall cease to hold office when he attains the five Justices. age of seventy years."]

473 appears to the Court to be expedient, Power of Single Justice of Supreme call in the aid of one or more assessors Court specially qualified, and hear the cause 11. A single Justice of the Supreme or matter wholly or partially with their Court may exercise any power vested in assistance. that court other than the final (2) The remuneration, if any, to be determination of any cause or matter: paid to such assessors shall be Provided that — determined by the Court. (a) in criminal causes or matters, if any Justice refuses an application Costs for the exercise of any such 14. The Supreme Court shall have power, the person making the power to award costs in all civil application shall be entitled to proceedings in the Court, and, subject to have his application determined any other enactment or to rules of by the Supreme Court; and Court, it shall be in the discretion of the (b) in civil causes or matters, any Court to determine by whom and to order, direction or decision made what extent the same shall be paid. or given in pursuance of the powers conferred by this section Right of audience may be varied, discharged or 15. (1) Subject to the provisions of any reversed by the Supreme Court. other enactment, in all proceedings before the Supreme Court the parties Reserved Judgments may appear in person or be represented 12. When, after any case has been fully by a legal practitioner entitled by or heard by the Supreme Court, judgments under any enactment or rules of court to thereon is reserved for delivery another practise in that Court. day, then, on the day appointed for (2) A person entitled to practise in delivery of the judgment, it shall not be the Supreme Court immediately before necessary for all those Justices before the commencement of this Act shall be whom the cause or matter was heard to entitled to practise as a legal be present together in court, and it shall practitioner in the Supreme Court unless be lawful for the opinion of any of them he is suspended or prohibited from so to be reduced into writing and to be practising by or under the provisions of read by any other Justice; and in any any enactment or rules of court. such case the judgment of the court shall have the same force and effect as Jurisdiction to hear appeals in certain if the Justice whose opinion is so read matters had been present in court and declared 16. (1) Where rights of appeal, with or his opinion in person. without leave, from decisions of the Court of Appeal given in the exercise of Trial with assessors its appellate jurisdiction in respect of 13. (1) In the exercise of its original State matters prescribed by the Law of a jurisdiction the Supreme Court may, in State, the Supreme Court shall, except any civil cause or matter in which it in so far as other provision is made by

474 any law enacted by the National of legal proceedings concerning Assembly, have like jurisdiction to hear any of the matters avoided; and determine appeals from decisions of (c) subject to the express the Court of Appeal given in the provisions of any enactment, in exercise of its appellate jurisdiction. all matters in which there was (2) In this section - formerly or is any conflict or "decision" has the meaning assigned to variance between the rules of it in section 277 of the Constitution of equity and the rules of the the Federal Republic of Nigeria; common law with reference to "State matters" means a matter other the same matter, the rules of than a matter included in the Exclusive equity shall prevail; Legislative List or the Concurrent (d) in addition to any other Legislative List. powers conferred upon the Supreme Court by any Part II. — ORIGINAL JURISDICTION enactment, the Supreme Court shall have and exercise all Provisions applying too exercise of powers and authorities which original jurisdiction are vested in or capable of being 17. With respect to the exercise of the exercised by it under the original jurisdiction conferred upon the Constitution of the Federal Supreme Court by subsection (1) of Republic of Nigeria; section 212 of the Constitution or which (e) the Supreme Court shall may be conferred upon it in pursuance observe and enforce the of section 212 (2) of the Constitution, observance of customary law to the following provisions shall apply — the same extent as such law is (a) subject to the express observed and enforced in the provisions of any enactment, Nigerian Courts. law and equity shall be administered concurrently; Witnesses in cases heard in original (b) in every cause or matter jurisdiction pending before it the Supreme 18 (1) For the purpose of any cause Court shall grant, absolutely or before the Supreme Court in its original on such terms and conditions as jurisdiction the Court may require the the Court thinks just, all such attendance of persons to give evidence remedies whatsoever as any of or to produce documents or both. the parties thereto may appear (2) Any person present in court entitled to in respect of any legal during the hearing of any such cause or equitable claim properly may if the Court thinks fit, be ordered to brought forward by them in the give evidence or to produce documents. cause or matter, so that as far as (3) A Justice of the Supreme Court, possible, all matters in if it appears to him that the attendance controversy between the parties of any person confined in any part of may be completely and finally the Federation as a prisoner under any determined, and all multiplicity sentence or order or commitment for

475 trial or otherwise, or under civil Proceedings between the Federation process, is necessary for the purpose of and States obtaining in any such case as aforesaid 20. Any proceedings before the pending or to be inquired of in the Supreme Court arising out of a dispute court, may issue a warrant for bringing referred to in section 212(1) of the up the said person before the court and Constitution and brought by or against the superintendent of prison or other the Federation or a State shall — official in whose custody the person is (a) in the case of the Federation be shall forthwith obey such warrant. brought in the name of the Attorney-General of the Power of transfer in certain cases Federation; 19 (1) This section shall apply to any (b) in the case of a State be brought cause or matter which is in respect of in the name of the Attorney- any of the matters mentioned in section General of the State. 212(1) of the Constitution. (2) The Supreme Court may order Part III. — APPEALS IN CIVIL any cause or matter which is before it to CASES be transferred to High Court or a magistrate's court having ordinary Application of Part III jurisdiction in the place where the cause 21 (1) This Part shall apply to the of action arose and power to grant the exercise of the jurisdiction of the relief sought, for hearing and Supreme Court to hear appeals in civil determining, or to be otherwise cases. disposed of by such court. (2) Where in the exercise by the (3) Where an Order of Transfer is Court of Appeal of its jurisdiction an made under subsection (2) of this interlocutory order or decision is made section the court to which the cause or in the course of any suit or matter an matter is transferred shall have appeal shall, by leave of that court or of jurisdiction to hear and determine it, to the Supreme Court, as the case may be, the extent set out in the Order of lie to the Supreme Court; but no appeal Transfer, as if it were a cause or matter shall lie from any order made ex parte, within the ordinary jurisdiction of that or by consent of the parties, or relating court. only too costs. (4) A transfer under subsection (2) (3) Nothing in subsection (2) of this of this section may be ordered at any section shall be construed so as to time and at any stage of the proceedings authorize an application to the Supreme in a cause or matter before final Court in the first instance for leave to judgment, and either with or without appeal from an interlocutory order or application in that behalf by any of the decision made in the course of any suit parties thereto, and may apply to any or matter brought in the Court of cause or matter in its entirety or in Appeal. respect of any part thereof or procedure required to be taken therein.

476 General power of the Supreme Court Part V* — APPEALS IN CRIMINAL 22. The Supreme Court may, from time CASES FROM THE COURT OF to time, make any order necessary for APPEAL determining the real question in controversy in the appeal, and may Application of Part V amend any defect or error in the record 25. This Part shall apply to the exercise of appeal, and may direct the curt below of the jurisdiction of the Supreme Court to inquire and certify its findings on any to hear appeals from decisions of the question which the Supreme Court Court of Appeal in criminal proceedings thinks fit to determine before final in which an appeal has been brought to judgment in the appeal and may make that court. an interim order or grant any injunction which the court below is authorized to Determination of an appeal make or grant and may direct any 26. On the hearing of an appeal under necessary inquiries or accounts to be this Part, the Supreme Court may made or taken and generally shall have exercise any power that could have full jurisdiction over the whole been exercised by the Court of Appeal proceedings as if the proceedings had or may order the case to be retried by a been instituted and prosecuted in the court of competent jurisdiction. Supreme Court as a court of first instance and may rehear the case in PART VI. — PROCEDURE whole or in part or may remit it to the court below for the purpose of such Time for appealing rehearing or may give such other 27. (1) Where a person desires to directions as to the manner in which the appeal to the Supreme Court he shall court below shall deal with the case in give notice of appeal or notice of his accordance with the powers of that application for leave in such manner as court. may be directed by the Rules of Court* within the period prescribed by subsection (2) of this section that is applicable to the case. Stay of execution (2) The periods prescribed for the 24. An appeal under this Part shall not giving of notice of appeal or notice of operate as a stay of execution, but the application of leave to appeal are - Supreme Court may order a stay of (a) in an appeal in a civil case, execution either unconditionally or fourteen days in an appeal upon the performance of such against an interlocutory conditions as may be imposed in decision and three months in accordance with rules of court.

[* Part IV of the original statute (No. 12 of 1960) ["Appeals in criminal cases from a court sitting as a court of first instance"] has been expunged in the present statute.] * http://www.nigeria-law.org/SupremeCourtRules.htm

477 an appeal against a final the trial to attend and be examined decision; before the Court, whether they were (b) in an appeal in a criminal or they were not called at the trial, case, thirty days from the or order the examination of any date of the decision appeal such witnesses to be conducted in a against. manner provided by the rules of (3) Where an application for leave court, or, in the absence of rules of is made in the first instance to the court court making provision on that below, a person making such behalf, as it may direct, before any application shall, in addition to the judge of the Court or before any period prescribed by subsection (2) of officer of the Court or other person this section, be allowed a further period appointed by the Court for that of fifteen days, from the date of the purpose, and allow the admission of hearing of the application by the court any depositions so taken as below, to make an application to the evidence before the Court; and Supreme Court. (c) receive the evidence, if tendered, of (4) The Supreme Court may extend any witness (including the the periods prescribed in subsection (2) appellant) who is a competent but of this section. not compellable witness and, if the appellant makes an application for Legal assistance to appellant the purpose, of the husband or wife 28. The Supreme Court may at any of the appellant, in cases where the time assign counsel to an appellant in evidence of the husband or wife any appeal or proceedings preliminary could not have been given at the or incidental to an appeal in which, in trial except on such an application; the opinion of the Court, it appears and desirable in the interests of justice that (d) where any question arising on the the appellant should have legal aid, and appeal involves prolonged that he has not sufficient means to examination of documents or enable him obtain that aid. accounts, or any scientific or local investigation, which cannot in the Supplemental powers of court opinion of the Court conveniently 29. In the exercise of its appellate be conducted before the Court, jurisdiction, the Supreme Court may if order the reference of the question it thinks it necessary or expedient in the in manner provided by rules of interest of justice — court, or, in the absence of rules of (a) ordering the production of any court making provision in that document, exhibit, or other thing behalf, as it may direct, for enquiry connected with the proceedings, the and report of any such production of which appears to it commissioner appointed by the necessary for the determination of Court, and act upon the report of the case; and any such commissioner so far as it (b) order any witnesses who would thinks fit to adopt it; and exercise in have been compellable witnesses at relation to the proceedings of the

478 Court any such powers which may his presence is advisable for the due for the time being be prescribed by determination of the appeal, in which rules of court and issue any event such expenses as aforesaid shall warrants necessary for enforcing be defrayed out of Consolidated the orders or sentence of the Court: Revenue Fund. Provided that in no case shall any (4) An appellant who does not sentence be increased by reason of or in appear at the hearing of his appeal or consideration of any evidence that was application for leave to appeal by not given at the trial. counsel may present his appeal and argument in writing, and any appeal or Right of the appellant to be present argument so presented shall be 30. (1) On the hearing of an appeal in a consolidated by the Supreme Court. criminal case an appellant, notwithstanding that he is in custody, shall be entitled to be present, if he desires, except where the appeal is on Procedure with respect to frivolous some ground involving a question of appeals on questions of law law alone but, in that case, and on an 32. If it appears to the Registrar that application for leave and on any any notice of an appeal against a proceedings preliminary or incidental to conviction purporting to be on a ground an appeal, shall not be entitled to be of appeal which involves a question of present, except where rules of court law alone, does not show any provide that he shall have the right to be substantial ground of appeal, the present or where the Supreme Court Registrar may refer the appeal to any gives him leave to be present. Justice of the Supreme Court and such (2) The power of the Supreme Justice may if he is of the same opinion, Court to pass any sentence under this direct the Registrar to refer the appeal to Act may be exercised notwithstanding the Supreme Court for summary that the appellant is for any reason not determination, and when the case is so present. referred, the Court may, if it considers (3) The right of an appellant who is that the appeal is frivolous or vexatious, in custody to be present at the hearing and can be determined without of his appeal shall be subject to his adjourning the same for a full hearing, paying all expenses of and incidental to dismiss the appeal summarily, without his transfer to and from the place where calling on any person to attend the the Supreme Court sits for the hearing or to appear for the Government determination of his appeal: thereon. Provided that the Court may direct that he be brought before the Court in any case where, in the opinion of the Court,

479 BIBLIOGRAPHY

A. Monographs Abel-Smith, B. & R. Stevens. Lawyers and the Courts: A Sociological Study of the English Legal System 1750-1965 (Cambridge, Mass.: Harvard University Press, 1967).

Ade-Ajayi, J.F. & Y. Akinseye-George. Kayode Eso: The Making of a Judge (Ibadan: Spectrum Books, 2002).

Adewoye, O. The Legal Profession in Nigeria, 1865-1962 (Ibadan: Longman Nigeria, 1977).

. The Judicial System in Southern Nigeria 1854-1954: Law and Justice in a Dependency (London: Longman, 1977).

Africa Watch. Zimbabwe: A Break with the Past (New York: Human Rights Watch, 1989).

Ajomo, M.A. & I. Okagbue, Human Rights and the Administration of Criminal Justice in Nigeria (Lagos: Nigerian Institute of Advanced Legal Studies, 1991).

Alabi, M.O.A. The Supreme Court in the Nigerian Political System, 1963-1997 (Ibadan: Demyaxs Press, 2002).

Alexy, R. A Theory of Constitutional Rights, trans. J. Rivers (Oxford: Oxford University Press, 2002)

Allen, J. Inquiry into the Rise and Growth of the Royal Prerogative in England New Ed. (London: Longman, Brown, Green, and Longman, 1849).

Allen, T. The Right to Property in Commonwealth Constitutions (Cambridge: Cambridge University Press, 2000).

Amissah, A.N.E. The Contribution of the Courts to Government: A West African View (Oxford: Clarendon Press, 1981).

Anderson, E. Judging Bertha Wilson: Law as Large as Life (Toronto: University of Toronto Press, 2001).

Anene, J.C. Southern Nigeria in Transition, 1885-1906 (London: Cambridge, 1966). Arikpo, O. The Development of Modern Nigeria (Harmondsworth: Penguin Books, 1967).

Aust, A. Modern Treaty Law and Practice (Cambridge: Cambridge University Press, 2000).

Austin, G. Working a Democratic Constitution: The Indian Experience (New Delhi: Oxford University Press, 2000).

Awa, E. Federal Government in Nigeria (Berkeley: University of California Press, 1964).

Awolowo, O. Awo: the Autobiography of Chief Obafemi Awolowo (Cambridge: Cambridge University Press, 1960).

Barak, A. The Judge in a Democracy (Princeton, N.J.: Princeton University Press, 2006).

. Purposive Interpretation in Law (Princeton: Princeton University Press, 2005).

Barrow, D.J. & T.G. Walker. A Court Divided: The Fifth Circuit Court of Appeals and the Politics of Judicial Reform (New Haven: Yale University Press, 1988).

Basu, D.D. Introduction to the Constitution of India, 15th ed. (New Delhi: Prentice-Hall of India, 1993).

Baum, L. Judges and Their Audiences: A Perspective on Judicial Behavior (Princeton & Oxford: Princeton University Press, 2006).

. The Puzzle of Judicial Behavior (Ann Arbor: University of Michigan Press, 1997).

Baxi, U. The Future of Human Rights (New Delhi: Oxford University Press, 2002).

. Courage, Craft and Contention: the Indian Supreme Court in the Eighties

(Bombay: Tripathi, 1985).

. The Indian Supreme Court and Politics (Lucknow: Eastern Book Co., 1980).

Beatty, D.M. The Ultimate Rule of Law (Oxford: Oxford University Press, 2004).

. Constitutional Law in Theory and Practice (Toronto: University of Toronto Press, 1995).

481 . Talking Heads and the Supremes: The Canadian Production of Constitutional Review (Toronto: Carswell, 1990).

Becker, T. Comparative Judicial Politics: The Political Functioning of Courts (Chicago: RandMcNally, 1970).

Bennion, F.A.R. The Constitutional Law of Ghana (London: Butterworths, 1962).

Blackstone, W. Commentaries on the Laws of England vol. 1 19th ed. (London: S. Sweet, 1836)

Botting, G. Fundamental Freedoms and Jehovah's Witnesses (Calgary: University of Calgary Press, 1993)

Brodie, I. Friends of the Court: The Privileging of Interest Group Litigants in Canada (Albany: SUNY Press, 2002).

Bushnell, I. The Captive Court: A Study of the Supreme Court of Canada (Montreal & Kingston: McGill-Queen's University Press, 1992).

Burns, A. History of Nigeria 8th ed. (London: George Allen & Unwin, 1972).

Canadian Bar Association. Report of the Special Committee of the Canadian Bar Association on the Caseload of the Supreme Court of Canada (Ottawa: Canadian Bar Association, 1973).

Casper, G. & R.A. Posner. The Workload of the Supreme Court (Chicago: American Bar Foundation, 1976).

Chagla, M.C. Roses in December (Bombay: Bharatiya Vidya Bhavan, 1974).

Chakrabarty, M. Judicial Behaviour and Decision-Making of the Supreme Court of India (New Delhi: Deep & Deep, 2000).

Chaskalson, M., et al. Constitutional Law of South Africa (Cape Town: Juta, 1998).

Chukura, O., ed. Privy Council Judgments: Opinions of the Judicial Committee of the Privy Council in Appeals from West Africa, 1841 to 1973 (Ibadan: Gillford & Co., 1981).

Coker, F. Sir Adetokunbo Ademola, A Biography (Lagos: Times Press, 1972).

482 Coleman, J.S. Nigeria: Background to Nationalism (Berkeley: University of California Press, 1963).

Commonwealth Secretariat. Commonwealth (Latimer House) Principles on the Three Branches of Government (London: Commonwealth Secretariat, 2004).

Commonwealth Secretariat/ Interights. Developing Human Rights Jurisprudence, Volume 7: Seventh Judicial Colloquium on the Domestic Application of International Human Rights Norms (London: Commonwealth Secretariat/ Interights, 1998).

. Developing Human Rights Jurisprudence, Volume 6: Sixth Judicial Colloquium on the Domestic Application of International Human Rights Norms (London: Commonwealth Secretariat/ Interights, 1995).

. Developing Human Rights Jurisprudence, Volume 5: Fifth Judicial Colloquium on the Domestic Application of International Human Rights Norms (London: Commonwealth Secretariat/Interights, 1993).

. Developing Human Rights Jurisprudence, Volume 4: Fourth Judicial Colloquium on the Domestic Application of International Human Rights Norms (London: Commonwealth Secretariat/ Interights, 1992).

. Developing Human Rights Jurisprudence, Volume 3: A Third Judicial Colloquium on the Domestic Application of International Human Rights Norms (London: Commonwealth Secretariat/ Interights, 1991).

. Developing Human Rights Jurisprudence, Volume 2: A Second Judicial Colloquium on the Domestic Application of International Human Rights Norms (London: Commonwealth Secretariat/ Interights, 1989).

. Developing Human Rights Jurisprudence: The Domestic Application of International Human Rights Norms (London: Commonwealth Secretariat, 1988).

Conteh-Morgan, E. Democratization in Africa: The Theory and Dynamics of Political Transitions (Westport: Praeger, 1997).

Cook, A.N. British Enterprise in Nigeria (London: Frank Cass, 1964).

Corder, H., et al. A Charter for Social Justice: A Contribution to the South African Bill of Rights Debate (Cape Town: University of Cape Town, 1992).

Crane, B.A., & H.S. Brown. Supreme Court of Canada Practice (Scarborough, Ont: Carswell, 1998).

483 DeMerieux, M. Fundamental Rights in Commonwealth Caribbean Constitutions (Bridgetown: University of the West Indies, 1992).

Dhavan, R. Litigation Explosion in India (Bombay: Tripathi, 1986).

. Justice on Trial: The Supreme Court Today (Allahabad: Wheeler, 1980).

. The Supreme Court under Strain: the Challenge of Arrears (Bombay: Tripathi, 1978). . The Supreme Court of India: A Socio-Legal Critique of its Juristic Techniques (Bombay: Tripathi, 1977).

. The Supreme Court and Parliamentary Democracy: A Critique of its Approach to the Recent Constitutional Crisis (Delhi: Sterling Publishers, 1976).

Dhavan, R. & A. Jacob. Selection and Appointment of Supreme Court Judges: A Case Study (Bombay: Tripathi, 1978). van Dijk, P. & G.J.H van Hoof. Theory and Practice of the European Convention on Human Rights 3rd ed. (The Hague/ Boston: Kluwer Law IntT, 1998).

Dicey, A.V. Introduction to the Study of the Law of the Constitution 10th ed. (London: Macmillan, 1959).

Donnelly, J. Universal Human Rights in Theory and Practice 2nd ed. (Ithaca: Cornell University Press, 2003).

Dugard, J. Human Rights and the South African Legal Order (Princeton, N.J.: Princeton University Press, 1978).

Dworkin, R. Law's Empire (Cambridge, Mass.: Harvard University Press, 1986).

. A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985).

'•. Taking Rights Seriously, (Cambridge, Mass.: Harvard University Press, 1977).

Easton, D. A Framework for Political Analysis (Englewood-Cliffs, N.J.: Prentice-Hall, 1965).

. A Systems Analysis of Political Life (New York: Wiley, 1965).

484 Ebrahim, H. The Soul of the Nation: Constitution-Making in South Africa (Cope Town: Oxford University Press, 1998).

Elias, T.O. The Nigerian Legal System 2nd ed. (London: Routledge & Kegan Paul, 1963).

. British Colonial Law (London: Steven, 1962).

Emiliou, N. The Principle of Proportionality in European Law: A Comparative Study (Dordrecht: Kluwer, 1996)

Epp, C.R. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago: University of Chicago Press, 1998).

Epstein, L. et al. The Supreme Court Compendium: Data, Decisions & Developments 3rd ed. (Washington, D.C.: CQ Press, 2003).

Epstein, L. & J. Knight. The Choices Justices Make (Washington, D.C.: CQ Press, 1998).

Eso, K. The Mystery Gunman: History, Politics, Power-Play, Justice (Ibadan: Spectrum, 1996).

. Thoughts on Law and Jurisprudence (Lagos: MIJ Professional Publishers,

1990).

Ezejiofor, G. Protection of Human Rights under the Law (London: Butterworths, 1964).

Fatayi-Williams, A. Faces, Cases and Places (London: Butterworths, 1983).

Fawehinmi, G., ed. Bench and Bar in Nigeria (Lagos: Nigerian Law Publications, 1988).

. Digest of Supreme Court Cases, 1956-1984 (Lagos: Nigerian Law Publications, 1985). Federal Judicial Center. Report of the Study Group on the Caseload of the Supreme Court (Washington, D.C.: Federal Judicial Center, 1972).

Forsyth, C. In Danger of their Talents: a Study of the Appellate Division of the Supreme Court of South Africa from 1950-1980 (Cape Town: Juta, 1985).

Frankfurter, F. & J.M. Landis. The Business of the Supreme Court: A Study in the Federal Judicial System (New York: Macmillan, 1928).

485 Friedland, M.L. A Place Apart: Judicial Independence and Accountability in Canada (Ottawa: Canadian Judicial Council, 1995).

Ghai, Y.P. & J.P.W.B. McAuslan. Public Law and Political Change in Kenya: A Study of the Legal Framework of Government from Colonial Times to the Present (London: Oxford Univ. Press, 1970).

Gilligan, C. In a Different Voice: Psychological Theory and Women's Development (Cambridge, Mass.: Harvard University Press).

Ginsburg, T. Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge: Cambridge University Press, 2003).

Glendon, M.A. Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991).

Gluckman. M., The Judicial Process among the Barotse of Northern Rhodesia (Manchester: Manchester University Press, 1955).

Gonzalez-Casanova, P. Democracy in Mexico 2nd ed. trans. D. Salti (London/ New York: Oxford University Press, 1970).

Gower, L.C.B. Independent Africa: A Challenge to the Legal Profession (Cambridge, Mass.: Harvard University Press, 1967).

Greene, I., et al. Final Appeal: Decision-Making in Canadian Courts of Appeal (Toronto: Lorimer, 1998).

Griffin, S.M. American Constitutionalism: From Theory to Politics (Princeton, N.J.: Princeton University Press, 1996).

Gupta, V.K. Decision Making in the Supreme Court of India (A Jurimetric Study) (Delhi: Kaveri Books, 1995).

Gyandoh, S.O. & J. Griffiths. A Sourcebook of Constitutional Law of Ghana (Legon: Faculty of Law, University of Ghana, 1972).

Gyekye, K. Tradition and Modernity: Philosophical Reflections on the African Experience (New York: Oxford University Press, 1997).

Hahlo, H.R. & E. Kuhn. The Union of South Africa: the Development of its Laws and Constitution (London: Stevens, 1960).

486 Harlow, C. & R. Rawlings. Pressure Through Law (London/ New York: Routledge, 1992).

Hegel, G.W.F. The Philosophy of History (Amherst, N.Y.: Prometheus Books, 1991).

Hart, H.L.A. The Concept of Law 2nd ed. (Oxford: Oxford University Press, 1994).

Hatchard, J. Individual Freedoms & State Security in the African Context: the Case of Zimbabwe (Athens, Ohio: Ohio University Press, 1993).

Hatchard, J. & T.I. Ogowewo. Tackling the Unconstitutional Overthrow of Democracies: Emerging Trends in the Commonwealth (London: Commonwealth Secretariat, 2003)

Hatchard, J., M. Ndulo & P. Slinn. Comparative Constitutionalism and Good Governance in the Commonwealth: An Eastern and Southern African Perspective (Cambridge: Cambridge University Press, 2004).

Hertslet, E. The Map of Africa by Treaty 3rd ed. Vol. 1 (London: Frank Cass, 1967).

Hirschl, R. Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, Mass.: Harvard University Press, 2004).

Hogg, P.W. Constitutional Law of Canada Students' ed. (Toronto: Carswell, 2002).

Horowitz, D.L. A Democratic South Africa: Constitutional Engineering in a Divided Society (Berkeley: University of California Press, 1991).

Howard, J.W. Courts of Appeals in the Federal Judicial System: A Study of the 2nd, 5th and District of Columbia Circuits (Princeton: Princeton University Press, 1981).

Howard, R.E. Human Rights and the Search for Community (Boulder: Westview Press, 1995).

. Human Rights in Commonwealth Africa (Totowa, N.J.: Rowman & Littlefield, 1986).

Human Sciences Research Council. Public Attitudes in Contemporary South Africa: Inputs from an HRSC Survey (Cape Town: HSRC Press, 2002).

Huntington, S.P. Political Order in Changing Societies (New Haven: Yale University Press, 1968).

487 Heyn, C, ed. Human Rights Law in Africa 1996 (The Hague: Kluwer Law International, 1996).

Ibhawoh, B. Human Rights Organizations in Nigeria: an Appraisal Report on the Human Rights NGO Community in Nigeria (Copenhagen: Danish Centre for Human Rights, 2001).

International Commission of Jurists. The Rule of Law and Human Rights: Principles and Definitions as Elaborated at the Congresses and Conferences held under the auspices of the International Commission of Jurists, 1955-1966 (Geneva: ICJ, 1966).

. African Conference on the Rule of Law: A Report of the Proceedings of the Conference (Geneva: ICJ, 1961).

Janis, M.W., R.S. Kay & A.W. Bradley. European Human Rights Law: Text and Materials 2nd ed. (Oxford: Oxford University Press, 2000).

Jayawickrama, N. The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge: Cambridge University Press, 2002).

Jefferson, T. Letters (Raleigh, N.C.: Alex Catalogue, 1996), available online: http://www.netLibrary.com/urlapi.asp?action=summary&v=l&bookid=l 085925

Jeffries, C. The Colonial Empire and its Civil Service (Cambridge: Cambridge University Press, 1938).

Jennings, I. The Approach to Self-Government (Cambridge: Cambridge University Press, 1956).

. Some Characteristics of the Indian Constitution (Madras: Oxford University Press, 1953).

Justice/ Public Law Project. A Matter of Public Interest: Reforming the Law and Practice on Interventions in Public Interest Cases (London: Justice, 1996).

Kabudi, P.J. Human Rights Jurisprudence in East Africa: A Comparative Study of Fundamental Rights and Freedoms of the Individual in Tanzania, Kenya and Uganda (Baden-Baden: Nomos Verlagsgesellschaft, 1995).

Karibi-Whyte, A.G. History and Sources of Criminal Law (Ibadan: Spectrum Law Publishing, 1993).

488 Kennedy, D. A Critique of Adjudication (fin de siecle) (Cambridge, Mass.: Harvard University Press, 1997).

Kirk-Greene, A.H.M. Lugard and the Amalgamation of Nigeria: A Documentary Record (London: Frank Cass & Co., 1968).

Knopff, R. & F.L. Morton. Charter Politics (Scarborough, ON: Nelson Canada, 1992).

Lazarus, E. Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court (New York: Penguin Books, 1999).

Lewis, W.A. Politics in West Africa (Toronto: Oxford University Press, 1965).

Llewellyn, K. The Common Law Tradition: Deciding Appeals (Boston: Little Brown & Co, 1960).

Lugard, Lord. The Dual Mandate in Tropical Africa (London: Frank Cass & Co, 1965).

Lynn, M., ed. Nigeria: Moving to Independence 1953-1960 (London: The Stationery Office, 2001).

Lyttelton, O. The Memoirs of Lord Chandos (London: Reader's Union, 1964).

Mackintosh, J.P. Nigerian Government and Politics (London: Allen & Unwin, 1966).

Maluwa, T. International Law in Post-Colonial Africa (The Hague: Kluwer Law Int'l, 1999).

Mamdani, M. Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton, N.J.: Princeton University Press, 1996).

Manfredi, C.P. Feminist Activism in the Supreme Court: Legal Mobilization and the Women's Legal Education and Action Fund (Vancouver: UBC Press, 2004).

. Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism 2nd ed. (Don Mills, Ont: Oxford University Press, 2001).

Marshall, G. Parliamentary Sovereignty and the Commonwealth (Oxford: Clarendon Press, 1957).

Marx, K. The Eighteenth Brumaire of Louis Bonaparte (1852) (Moscow: Progress Publishers, 1954).

489 McCormick, P. Supreme at Last: the Evolution of the Supreme Court of Canada (Toronto: James Lorimer & Co., 2000).

Monahan, P. Politics and the Constitution: The Charter, Federalism and the Supreme Court of Canada (Toronto: Carswell, 1987).

Morton, F.L. & R. Knopff. The Charter Revolution and the Court Party (Peterborough, ON: Broadview Press, 2000).

Muhammed, K. Rendezvous: An Authorized Biography of Chief Justice Mohammed Bello (Lagos: Malthouse Press, 1995).

Murphy, W.F. Elements of Judicial Strategy (Chicago: University of Chicago Press, 1964).

Nayar, K. The Judgement (New Delhi: Vikas Publishing House, 1977).

, ed. Supersession of Judges (New Delhi: Indian Book Co., 1973).

Newman, K.J. Essays on the Constitution of Pakistan (Dacca: Pakistan Co-operative Book Society, 1956).

Nicolson, I.F. The Administration of Nigeria 1900-1960: Men, Method, and Myths (Oxford: Clarendon Press, 1969).

Nwabueze, B.O. Military Rule and Constitutionalism in Nigeria (Ibadan: Spectrum Law Publishing, 1992).

. Federalism in Nigeria under the Presidential Constitution (London: Sweet & Maxwell, 1983).

. A Constitutional History of Nigeria (Essex: Longman, 1982).

. The Presidential Constitution of Nigeria (London: C. Hurst & Co., 1982).

. Judicialism in Commonwealth Africa: the Role of the Courts in Government

(London: C. Hurst & Co., 1977).

. Presidentialism in Commonwealth Africa (London: C. Hurst & Co., 1974).

. Constitutionalism in the Emergent States (London: C. Hurst & Co., 1973).

. Constitutional Law of the Nigerian Republic (London: Butterworths, 1964).

490 . The Machinery of Justice in Nigeria (London: Butterworths, 1963).

O'Brien, D.M. Storm Center: The Supreme Court in American Politics 6th ed. (New York: W.W. Norton, 2003).

O'Connor, S.D. The Majesty of the Law: Reflections of a Supreme Court Justice (New York: Random House, 2003).

Odumosu, O.I. The Nigerian Constitution: History and Development (London: Sweet & Maxwell, 1963).

Okafor, O. Legitimizing Human Rights NGOs: Lessons from Nigeria (Trenton, N.J.: Africa World Press, 2005).

Okonjo, I.M. British Administration in Nigeria 1900-1950: A Nigerian View (New York: NOK Publishers, 1974).

Okpaluba, C. Judicial Approach to Constitutional Interpretation in Nigeria (Enugu: Matt Madek, 1992

Olarewaju, A. et al. Justice Obaseki: Supreme Court Years, 1975-1991 (Lagos: Nigerian Law Publishers, 1991).

. Justice Eso: Supreme Court Years, 1978-1990 (Lagos: Nigerian Law

Publishers, 1990).

Oyudo, G.O. Locus Standi and Declaratory Actions (Owerri: Government Printer, 1987).

Orr, C, The Making of Northern Nigeria (London: Frank Cass and Company, 1965). Ouguergouz, F. The African Charter on Human and Peoples' Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (The Hague: Martinus Nijhoff, 2003).

Palley, C. The Constitutional History of Southern Rhodesia, 1888-1965 with Special Reference to Imperial Control (Oxford: Clarendon, 1966).

Peaslee, A.J., ed. Constitutions of Nations rev. 4th ed. by D. Peaslee Xydis Vol. I (The Hague: Martinus Nijhoff, 1974).

. ed. Constitutions of Nations rev. 3rd ed. by D. Peaslee Xydis Vol. I (The Hague: Martinus Nijhoff, 1965).

491 Perry, H.W. Deciding to Decide: Agenda Setting in the United States Supreme Court (Cambridge, Mass.: Harvard University Press, 1991).

Perry, M.J. The Idea of Human Rights: Four Inquiries (New York: Oxford University Press, 1998).

Peter, CM. Human Rights in Tanzania: Selected Cases and Materials (Koln: Koppe, 1997).

Pillay, U., B. Roberts & S. Rule. South African Social Attitudes: Changing Times, Diverse Voices (Cape Town: HSRC Press, 2006). du Plessis L. & H. Corder. Understanding South Africa's Transitional Bill of Rights (Cape Town: Juta, 1994).

Posner, R.A. How Judges Think (Cambridge, Mass.: Harvard University Press, 2008)

. Aging and Old Age (Chicago: University of Chicago Press, 1995).

. Overcoming Law (Cambridge, Mass.: Harvard University Press, 1995).

Pritchett, C.H. Civil Liberties and the Vinson Court (Chicago: University of Chicago Press, 1954).

. The Roosevelt Court: A Study in Judicial Politics and Values, 1937-1947 (New York: Macmillan, 1948).

Prosser, T. Test Cases for the Poor: Legal Techniques in the Politics of Social Welfare (London: Child Poverty Action Group, 1983).

Rao, B.S. The Framing of India's Constitution: Select Documents Vol. Ill (New Delhi: The Indian Institute of Public Administration, 1967).

Razack, S. Canadian Feminism and the Law: The Women's Legal Education and Action Fund and the Pursuit of Equality (Toronto: Second Story Press, 1991).

Rehnquist, W.H. The Supreme Court rev. ed. (New York: Alfred Knopf, 2001).

Rhode, D.W. & H.J Spaeth. The Supreme Court and the Attitudinal Model Revisited (New York: Cambridge University Press, 2002).

. Supreme Court Decision Making (San Francisco: W.H. Freeman, 1976).

492 Roach, K. The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Toronto: Irwin Law, 2001)

. Constitutional Remedies in Canada, looseleaf (Aurora, ON.: Canada Law Book, 1994).

Robert-Wray, K. Commonwealth and Colonial Law (New York: Praeger, 1966).

Russell, P.H. The Judiciary in Canada: The Third Branch of Government (Toronto: McGraw-Hill Ryerson, 1987).

Sachs, A. Advancing Human Rights in South Africa (Capetown: Oxford University Press, 1992).

Sagay, I.E. A Legacy for Posterity: The Work of the Supreme Court (1980-1988) (Lagos: Nigerian Law Publications, 1988).

Sathe, S.P. Judicial Activism in India: Transgressing Borders and Enforcing Limits (New Delhi: Oxford University Press, 2002).

Schabas, W.A. The Death Penalty as Cruel Treatment and Torture: Capital Punishment Challenged in the World's Courts (Boston: Northeastern University Press, 1996).

Schubert, G., Political Culture and Judicial Behavior: Political Culture and Judicial Elites - A Comparative Analysis (Lanham, MD: University Press of America, 1985).

. The Judicial Mind: The Attitudes and Ideology of Supreme Court Justices, 1946-1963 (Evanston, 111.: Northwestern University Press, 1965).

ed. Judicial Decision-Making (New York: Free Press, 1963).

Schwartz, B., Decision: How the Supreme Court Decides Cases (New York: Oxford University Press, 1996).

Segal, J.A. & H.J Spaeth. The Supreme Court and the Attitudinal Model (New York: Cambridge University Press, 1993).

Seidman, R.B. The State, Law and Development (London: Croom Helm, 1978).

Sharpe, R.J. & K. Roach. Brian Dickson: A Judge's Journey (Toronto: University of Toronto Press, 2003).

493 Sheldrick, B. Perils and Possibilities: Social Activism and the Law (Halifax: Femwood: 2004).

Shivji, I.G., ed. The State and the Working People in Tanzania (Dakar: CODESRIA, 1985).

Sopinka, J. & M.A. Gelowitz. The Conduct of an Appeal 2nd ed. (Toronto: Butterworths, 2000).

Simpson, A.W.B. Human Rights and the End of the Empire: Britain and the Genesis of the European Convention (New York: Oxford University Press, 2001).

Sharma, S. The Parliament and the Supreme Court: Institutional Conflict for the Supremacy of Power (Gurgaon: Indira Publications, 1986).

Shklar, J.N. Legalism: Law, Morals, and Political Trials (Cambridge, Mass.: Harvard University Press, 1964).

Sklar, R.L. Nigerian Political Parties: Power in an Emergent African Nation (New York: Nok Publishers, 1983).

Smith, I.O. & D. Ogunremi. Taslim Olawale Elias: A Jurist of Distinction (Lagos: Lagos State University, 1991). de Smith, S.A. The New Commonwealth and its Constitutions (London: Stevens, 1964).

Snell, J.G. & F. Vaughan. The Supreme Court of Canada (Toronto: Osgoode Society, 1985).

Solyom, L. & G. Brunner, eds., Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court (Ann Arbor: University of Michigan Press, 2000)

Spaeth, H.J. & J.A. Segal. Majority Will or Minority Will: Adherence to Precedence on the U.S. Supreme Court (New York: Cambridge University Press, 1999).

Stephen, J.F. History of the Criminal Law ofEngland vol. 3 (London: Macmillan, 1883).

Stock, R. Africa South of the Sahara: A Geographical Interpretation (New York: Guilford Press, 1995).

Stone, A. The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (Oxford: Oxford University Press, 1992).

494 Sweet, A.L. Governing with Judges: Constitutional Politics in Europe (Oxford: Oxford University Press, 2000).

Tamuno, T.N. The Evolution of the Nigerian State: the Southern Phase, 1898-1914 (London: Longman, 1972).

Tate, C.N. & Vallinder, T., eds. The Global Expansion of Judicial Power (New York: New York University Press, 1995).

Tshosa, O. National Law and International Human Rights: Cases of Botswana, Namibia and Zimbabwe (Aldershot: Ashgate/ Dartmouth, 2001).

Udoma, U. History and Law of the Constitution of Nigeria (Lagos: Malthouse Press, 1994).

Ume, F.U. The Courts and the Administration of Law in Nigeria (Enugu, Nigeria: Fourth Dimension Publishing, 1989).

Wadehra, B.L. Public Interest Litigation: A Handbook (Delhi: Universal Law Publishing Co., 2003).

Weiler, P. In the Last Resort: A Critical Study of the Supreme Court of Canada (Toronto: Carswell, 1974).

Welch, C.E. Protecting Human Rights in Africa: Roles and Strategies of Non- Governmental Organizations (Philadelphia: University of Philadelphia Press, 1995).

Widner, J. A. Building the Rule of Law (New York: W.W. Norton & Co., 2001).

Winch, P. The Idea of a Social Science and its Relation to Philosophy (London: Routledge & Kegan Paul, 1958).

Wright, M., ed. British Colonial Constitutions (Oxford: Clarendon Press, 1952).

Young, C. The African Colonial State in Comparative Perspective (New Haven: Yale University Press, 1994).

Zimba, L. Zambian Bill of Rights: An Historical and Comparative Study of Human Rights in Commonwealth Africa (Nairobi: East Africa Publ. House, 1984).

495 B. Articles & Chapters Adesopo, A.A. & A.S. Asaju. "Natural Resource Distribution, Agitation for Resource Control Right and the Practice of Federalism in Nigeria" (2004) 15 J. Hum. Ecol. 277.

Adeyemi, A.A., "Death Penalty: Criminological Perspectives - The Nigerian Situation" (1987) 58 Revue Internationale de Droit Penal 485.

. "The Contribution of the Court to the Development of Penal Policy" in A.B. Kasunmu, ed., The Supreme Court of Nigeria 1956-1970 (Ibadan: Heinemann, 1977)133

Adjami, M.E. "African Courts, International Law, and Comparative Case Law: Chimera or Emerging Human Rights Jurisprudence?" (2002) 24 Mich. J. Int'l L. 103.

African National Congress. "Constitutional Guidelines for a Democratic South Africa" (1989)5S.A.J.Hum. Rts. 131.

Aihe, D.O. "Neo-Nigerian Human Rights in Zambia: A Comparative Study with Some Countries in Africa and West Indies" (1971-72) 3 & 4 Zambia L. J. 43.

Ajibola, B. "Judicial Independence under Colonial Rule" in B. Ajibola & D. van Zyl, eds., The Judiciary in Africa (Kenwyn: Juta, 1998) 110.

Alexy, R. "Balancing, Constitutional Review, and Representation" (2005) 3 Int'l J. Const. L. 574

Allen, D.W. "What are Transaction Costs?" (1991) 14 Res. L. & Econ. 1.

Allen, T. "Commonwealth Constitutions and the Right not to be Deprived of Property" (1993) 42 Int'l & Comp. L.Q. 523.

Allott, A.N. "The Independence of the Judiciary in Commonwealth Countries: Problems and Provisions" (1994) 20 Comm. L. Bull. 1428.

Alvaro, A. "Why Property Rights were Excluded from the Canadian Charter of Rights and Freedoms" (1991) XXIV Can. J. Pol. Sci. 309

Angell, E. "The Amicus Curiae: American Development of English Institutions" (1967) 16 Int'l & Comp. L.Q. 1017.

. "The Amicus Curiae" (1960) 56 Nw. U.L. Rev. 469.

496 An-Na"im, A.A. "Problems of Universal Cultural Legitimacy for Human Rights" in A.A. An-Naim & Deng, eds., Human Rights in Africa: Cross-Cultural Perspectives (Washington, D.C.: Brookings Institution, 1990) 345-55.

Annus, T. "Comparative Constitutional Reasoning: The Law and Strategy of Selecting the Right Argument" (2004) 14 Duke J. Comp. & Int'l L. 301.

Asiwaju, A.I. "Control through Coercion: a Study of the Indigenat Regime in French West Africa Administration, 1887-1946" (1979) 41 Bulletin de l'IFAN 35.

Atkins, B.M. "Opinion Specialization on the United States Courts of Appeal: The Question of Issue Specialization" (1974) 27 Western Pol. Q. 409.

. "Judicial Behavior and Tendencies towards Conformity in Three Member Small Group: A Case Study of Dissent Behavior on the U.S. Court of Appeals" (1973) 54 Social Sci. Q. 41.

Atkins, B.M. & J.J. Green, "Consensus on the United States Courts of Appeals: Illusion or Reality" (1976) 20 Am. J. Pol. Sci. 735.

Atkins, B.M. & W. Zavoina., "Judicial Leadership on the Court of Appeals: A Probability of Panel Assignment in Race Reform Cases on the Fifth Circuit" (1974) 18 Am. J. Pol. Sci. 701.

Austin, G. "The Supreme Court and the Struggle for Custody of the Constitution" in B.N. Kirpal, et al., eds., Supreme But Not Infallible: Essays in Honour of the Supreme Court of India (New Delhi: Oxford University Press, 2000).

Bahdi, R. "Globalization of Judgment: Transjudicialism and the Five Faces of International Law in Domestic Courts" (2002) 34 Geo. Wash. Int'l L. Rev. 555.

Baier, P.R. "The Law Clerks: Profile of an Institution" (1973) 26 Vand. L. Rev. 1125.

Bale, G. "W.R. Lederman and the Citation of Periodicals by the Supreme Court of Canada" (1994) 19 Queen's L.J. 36.

Bastarache, M. "The Role of Academics and Legal Theory in Judicial Decision-Making" (1999)37Alta.L.Rev.739.

Baxi, U. '"A Known but an Indifferent Judge': Situating Ronald Dworkin in Contemporary Indian Jurisprudence" (2003) 1 Int'l J. Const. L. 557.

497 . "Preface" in S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits (New Delhi: Oxford University Press, 2002) ix-xxi.

. "The Avatars of Indian Activism: Explorations in the Geographies of [Injustice" in S.K. Verman & Kusum, eds., Fifty Years of the Supreme Court of India: Its Grasp and Reach (New Delhi: Oxford University Press, 2000) 156.

. "On the Shame of not being an Activist: Thoughts on Judicial Activism" in N. Tiruchelvam & R. Coomaraswany, eds., The Role of the Judiciary in Plural Societies (New York: St. Martin's Press, 1987) 168.

. "A Pilgrim's Progress: The Basic Structure Revisited" in Courage, Craft and Contention: The Indian Supreme Court in the Eighties (Bombay: N.M. Tripathi, 1985)64-110.

. "Taking Suffering Seriously: Social Litigation in the Supreme Court of India" in R. Dhavan, R. Sudarshan & S. Khurshid, eds., Judges and the Judicial Power: Essays in Honour of Justice V.R. Krishna Iyer (London: Sweet & Maxwell, 1985) 289.

Baum, L. "Recruitment and the Motivations of Supreme Court Justices" in C.W. Clayton & H. Gillman, Supreme Court Decision-Making: New Institutionalist Approaches (Chicago: University of Chicago Press, 1999) 201.

. "Membership Change and Collective Voting Change in the United States Supreme Court" (1992) 54 J. Politics 3.

Beatty, D. "Human Rights and the Rules of Law" in D. Beatty, ed., Human Rights and Judicial Review: A Comparative Perspective (Dordrecht: Martinus Nijhoff, 1994) 1.

Bedau, H.A. '"Anarchical Fallacies: ^Bentham's Attack on Human Rights" (2000) 22 Hum.Rts. Q. 261.

Beller, G.E. "Benevolent Illusions in a Developing Society: The Assertion of Supreme Court Authority in Democratic India" (1983) 36 Western Pol. Q. 513.

Berat, L. "The Constitutional Court of South Africa and Jurisdictional Questions: In the Interest of Justice? (2005) 3 IntlT J. Const. L. 39.

. "Courting Justice: A Call for Judicial Activism in Transformed South Africa" (1993) 37 St. Louis U. L.J. 849.

498 . "A New South Africa?: Prospects for an Africanist Bill of Rights and a Transformed Judiciary" (1991) 13 Loy. L.A. Int'l & Comp. LJ. 467.

Black, D. "The Mobilization of Law" (1973) 2 J. Leg. Stud. 125.

Blackshield, A.R. '"Fundamental Rights' and the Institutional Viability of the Indian Supreme Court" (1966) 8 J.I.L.I. 139.

Black, V. & N. Richter. "Did She Mention My Name? Citation of Academic Authority by the Supreme Court of Canada 1985-1990" (1993) Dal. L.J. 377.

Blake, R.C. "The World's Law in One Country: The South African Constitutional Court's Use of Public International Law" (1999) 115 S. Afr. L. J. 668.

Blom-Cooper, L. & C. Gelber. "The Privy Council and the Death Penalty in the Caribbean: A Study in Constitutional Change" [1998] Eur. H.R.L. Rev. 386.

Bochenek, M.G. "Compensation for Human Rights Abuses in Zimbabwe" (1995) 26 Colum. Hum. Rts L. Rev. 483. de Bourbon, A. "Human Rights Litigation in Zimbabwe: Past, Present and Future" (2003) 3 Afr. Hum. Rts. L.J. 195.

Bowen, O.A. "The Scope and Finance of the Nigerian Legal Aid Scheme" in Law, Development and Administration in Nigeria (Lagos: Federal Ministry of Justice, 1990) 655.

. "An Operational Assessment of the Nigerian Legal Aid Scheme" in Omotola & Adeogun, eds., Law and Development in Nigeria (Lagos: Lagos University Press, 1987)259.

Brenner, S. "Granting Certiorari by the United States Supreme Court: An Overview of the Social Science Studies" (2000) 92 Law Library J. 193.

. "Issue Specialization as a Variable in Opinion Assignment" (1984) 46 J. Politics 1217.

. "Another Look at Freshman Indecisiveness on the United States Supreme Court" (1983) 16 Polity 320.

Brenner, S. & H.J. Spaeth. "Issue Specialization in Majority Opinion Assignment on the Burger Court" (1986) 39 Western Pol. Q. 520.

499 Brett, L. "The Role of the Judiciary in a Federal Constitution with Particular Reference to Nigeria" in L. Brett, ed., Constitutional Problems of Federalism in Nigeria (Lagos: Times Press, 1960) 12.

Brodie, I. "Interest Group Litigation and the Embedded State: Canada's Court Challenges Program" (2001) 34 Can. J. Pol. Sci. 357.

Brown, J.R. & A.H. Lee. "Neutral Assignment of Judges at the Court of Appeals" (2000) 78 Tex. L. Rev. 1037.

Brunner, G. "Structure and Proceedings of the Hungarian Constitutional Judiciary" in L. Solyom & G. Brunner, eds., Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court (Ann Arbor: University of Michigan Press, 2000) 65.

Bryce, J. "Two South African Constitutions" in J. Bryce, Constitutions (New York: Oxford University Press, 1905) 228-69.

Bryden, P. "Public Interest Intervention in the Courts" (1987) 66 Can. Bar Rev. 490.

Bushnell, S.I. "The Use of American Cases" (1986) 35 U. New Brunswick LJ 157.

. "Leave to Appeal Applications to the Supreme Court of Canada: A Matter of Public Importance" (1982) 3 Supreme Court L.R. 479. Bussey, E. "Constitutional Dialogue in Uganda (2005) 48 J. Afr. L. 1.

Caldeira, G.A. & J.R. Wright. "Amici Curiae Before the Supreme Court: Who Participates, When, and How Much?" (1990) 52 J. Politics 782.

. "Organized Interests and Agenda Setting in the U.S. Supreme Court" (1988) 82 Am. Pol. Sci. Rev. 1109.

Calderia, G.A. & C.J.W. Zorn, "Of Time and Consensual Norms in the Supreme Court" (1998) 42 Am. J. Pol. Sci. 874.

Canon, B.C. "Defining the Dimensions of Judicial Activism" (1983) 66 Judicature 236.

Capenter, G. "Pre-Independence Namibia: Conscription and Human Rights" (1988/89) 14S. Afr. Y.B. Int'lL. 157.

500 Carrozza, P.G. "Uses and Misuses of Comparative Law in International Human Rights: Some Reflections on the Jurisprudence of the European Court of Human Rights" (1998) 73 Notre Dame L. Rev. 1217.

Choudhry, S. "Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation" (1999) 74 Ind. L.J. 819.

Choudhry, S. & C.E. Hunter. "Measuring Judicial Activism on the Supreme Court of Canada: A Comment on Newfoundland (Treasury Board) v. NAPE" (2003) 48 McGill L.J. 525

Choudhuri, K. "The Judges of the Supreme Court and the Philosophy of a Judge" in R.A. Sharma, Justice and Social Order in India (New Delhi: Intellectual Publishing House, 1984) 95.

Clayton, C.W. "The Supply and Demand Sides of Judicial Policy-Making (or, Why be So Positive about the Judicialization of Politics?)" (2002) 65 Law & Contemp. Probs. 69.

Cleary, S.M. "A Bill of Rights as a Normative Instrument: Southwest Africa/Namibia 1975-1988" (1988) XXI CILSA 291.

Coase, R.H. "The Problem of Social Cost" (1960) 3 J. L. & Econ. 1.

Cochalia, F. "A Report on the Convention for a Democratic South Africa" (1992) 8 S.A. J. Hum. Rts. 249.

Cohen, B. & M. Staunton. "In Pursuit of a Legal Strategy: The National Council for Civil Liberties" in J. Cooper & R. Dhavan, eds., Public Interest Law (Oxford: Basil Blackwell, 1986)286.

Coleman, J.S. "The Character and Viability of African Political Systems, in Nationalism and Development in Africa: Selected Essays (Berkeley: University of California Press, 1994)85.

Collins, P.M. "Friends of the Court: Examining the Influence of Amicus Curiae Participation in U.S. Supreme Court Litigation" (2004) 38 Law & Soc'y Rev. 807.

Cook, B.B. "Will Women Judges Make a Difference in Women's Legal Rights? A Prediction from Attitudes and Simulated Behaviour" in M. Rendel, eds., Women, Power and Political Systems (London: Croom Helm, 1981) 216-39.

501 Cortner, R.C. "Strategies and Tactics of Litigants in Constitutional Cases" (1968) J. Pub. L. 287.

Cowen, D.V. "Human Rights in Contemporary Africa" (1964) 9 Nat. L. For. 1.

. "The Entrenched Sections of the South Africa Act: Two Great Legal Battles" (1953) S.A.L.J. 70.

Craig, P.P. & S.L. Deshpande. "Rights, Autonomy and Process: Public Interest Litigation in India" (1989) 9 Oxford J. Legal Stud. 356.

Cross, F.B. "Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance" (1997) 92 Nw. U. L. Rev. 251.

Dahl, R.A. "Decision-Making in a Democracy: the Supreme Court as a National Policy- Maker" (1957) 6 J. Pub. L. 279.

Danelski, D.J. "The Influence of the Chief Justice in the Decisional Process of the Supreme Court" in J.B. Grossman & R.S. Wells, eds., Constitutional Law and Judicial Policy Making 2nd ed. (New York: John Wiley, 1980).

Dankwa, E.V.O. & C. Flinterman. "Judicial Review in Ghana" (1977) 14 U. Ghana L.J. 1.

Dansereau, S. "Liberation and Opposition in Zimbabwe" in H. Melber, ed., Limits to Liberation in Southern Africa: The Unfinished Business of Democratic Consolidation (Capetown: HSRC Press, 2003) 23-46.

Davis, S. "The Voice of Sandra Day O'Connor" (1993) 77 Judicature 134.

. "Do Women Judges Speak 'In a Different Voice'? Carol Gilligan, Feminist Legal Theory, and the Ninth Circuit" (1993) 8 Wis. Women's LJ 143.

Days, D.S., et al. Justice Enjoined: the State of the Judiciary in Kenya (New York: R.F. Kennedy Memorial Center for Human Rights, 1992).

Desai, N.M. "The Presidential System in Kenya: Does it Impede the Rights of the Accused, the Detained, and the Imprisoned?" (1999) 25 New Eng. J. on Crim. & Civ. Confinement 181.

Devlin, R., A.W. Wayne & N. Kim. "Reducing the Democratic Deficit: Representation, Diversity and the Canadian Judiciary, or Towards a 'Triple P' Judiciary" (2000) 38 Alta. L. Rev. 734.

502 Dhavan, R. "Law as Struggle: Public Interest Law in India" (1994) 36 J.I.L.I. 302.

. "The Constitution as the Situs of Struggle: India's Constitution Forty Years On" in L.W. Beer, ed., Constitutional Systems in Late Twentieth Century Asia (Seattle: University of Washington Press, 1992) 373.

Dickens, B. "A Canadian Development: Non-Party Intervention" (1977) 40 Mod. L. Rev. 666.

Dlamini, C.R.M. "The Influence of Race on the Administration of Justice in South Africa" (1988) 4 S. Afr. J. Hum. Rts. 37.

Domingo, P. "Judicialization of Politics: The Changing Political Role of the Judiciary in Mexico" in R. Sieder, L. Schjolden & A. Angel, eds., The Judicialization of Politics in Latin America (New York: Palgrave Macmillan, 2005) 21-46.

. "Judicial Independence: The Politics of the Supreme Court in Mexico" (2000) 32 J. Lat. Amer. Studies 705.

Donnelly, J. "Human Rights and Asian Values: A Defence of Western Universalism" in J.R. Bauer & D.A. Bell, eds., The East Asian Challenge for Human Rights (Cambridge: Cambridge University Press, 1999) 60-87.

Douglas, W.O. "The Supreme Court and its Case Load" (1960) 45 Cornell L.Q. 401.

Dubey, H.P. "The Supreme Court of India: A Comparative Study of its Constitution, Organization, Powers and Functions with Historical Background" (1974) 10 Banaras L.J. 50.

Dubois, P.L. "The Illusion of Judicial Consensus Revisited: Partisan Conflict on an Intermediate State Court of Appeals" (1988) 32 Am. J. Pol. Sci. 946.

Dugard, J. "International Law and the South African Constitution" (1997) 8 EJIL 77.

Ebeku, K.S.A. "Nigerian Supreme Court and the Ownership of Offshore Oil" (2003) 27 Nat. Res. For. 291.

Egede, E. "Who Owns the Nigerian Offshore Seabed: Federal or States? An Examination of the Attorney General of the Federation v. Attorney General ofAbia State & 35 Ors Case" (2005) 49 J. Afr. L. 73.

Elias, T.O. "The New Constitution of Nigeria and the Protection of Human Rights and Fundamental Freedoms" (1960) 2 Int'l Comm. Jur. Rev. 30.

503 . "The Independence of the Colonial Judiciary" (1956) 1 Juridical Rev. (N.S.) 45.

Ellmann, S. "Cause Lawyering in the Third World" in A. Sarat & S. Scheingold, eds., Cause Lawyering: Political Commitments and Professional Responsibilities (New York: Oxford University Press, 1998) 349.

Epstein, L. & J. Knight. "Mapping Out the Strategic Terrain: The Informational Role of Amid Curiae" in C.W. Clayton & H. Gillman, Supreme Court Dedsion-Making: New Institutionalist Approaches (Chicago: University of Chicago Press, 1999) 215.

Epstein, L., J. Knight & A.D. Martin. "The Norm of Prior Judicial Experience (and its Consequences for the U.S. Supreme Court)" (2003) 91 Calif. L.R. 903.

Epstein, L., J. Knight & O. Shvetsova. "The Judicial Appointment Process: Comparing Judicial Systems" (2001) 10 Wm. & Mary Bill Rts. J. 7.

Epstein, L. & C.R Rowland. "Debunking the Myth of Interest Group Invincibility in Courts" (1991) 85 Am. Pol. Sci. Rev 205.

Epstein, L., J.A. Segal & H.J. Spaeth. "The Norm of Consensus on the U.S. Supreme Court" (2001) 45 J. Politics 362.

Ewing, K.D. "A Bill of Rights: Lessons from the Privy Council" in W. Finnie, C.M.G. Himsworth & N. Walker, eds., Edinburgh Essays in Public Law (Edinburg: Edinburg University Press, 1991) 231-49.

Ewing, K.D. & C.A. Gearty. "Rocky Foundations for Labour's New Rights" [1997] Eur. H.R.L. Rev. 146.

Ezeijiofor, G. "A Judicial Interpretation of Constitution: the Nigerian Experience during the First Republic" in A. B. Kasunmu, ed., The Supreme Court of Nigeria, 1956- 1970 (Ibadan: Heinemann, 1977) 67.

Feldman, D. "Public Interest Litigation and Constitutional Theory in Comparative Perspective" (1992) 55 Mod. L. Rev. 44.

Ferejohn, J. "Judicializing Politics, Politicizing Law" (2002) 65 Law & Contemp. Probs. 41.

. "Independent Judges, Dependent Judiciary: Explaining Judicial Independence" (1999)72S.Cal.L.Rev. 353.

504 Finkel, J. "Supreme Court Decisions on Electoral Rules after Mexico's 1994 Judicial Reform: An Empowered Court" (2003) 35 J. Lat. Amer. Stud. 777.

Fiss, O.M. "The Limits of Judicial Independence" (1993) 25 U. Miami Int.-Am. L. Rev. 57.

Flemming, R.B. "Processing Appeals for Judicial Review: The Institutions of Agenda Setting in the Supreme Courts of Canada and the United States" in H. Mellon & M. Westmacottj eds., Political Dispute and Judicial Review: Assessing the Work of the Supreme Court of Canada (Scarborough, Ont: Nelson, 2000) 40.

Flemming, R.B. & G.S. Krutz. "Repeat Litigators and Agenda Setting on the Supreme Court of Canada" (2002) 35 Can. J. Pol. Sci. 811.

. "Selecting Appeals for Judicial Review in Canada: A Replication and Multivariate Test of American Hypotheses" (2002) 64 J. Politics 232.

Fombad, CM. "The New Cameroonian Constitutional Council in a Comparative Perspective: Progress or Retrogression?" (1998) 42 J. Afr. L. 172.

La Forest, G.V. "Who is Listening to Whom? The Discourse between the Canadian Judiciary and Academics" in B.S. Markesinis, ed., Law Making, Law Finding and Law Shaping: The Diverse Influences (Oxford: Oxford University Press, 1997) 69-90.

Forsyth, C. "The Judges and Judicial Choice: Some Thoughts on the Appellate Division of the Supreme Court of South Africa since 1950" (1985) 12 J. S. Afr. Studies 102.

Fouts, D.E. "Policy-Making in the Supreme Court of Canada" in G. Schubert & D.J. Danelski, eds., Comparative Judicial Behavior: Cross-Cultural Studies of Political Decision-Making in the East and West (New York: Oxford University Press, 1969)257-91.

Frankfurter, F. "The Supreme Court in the Mirror of Justices" (1957) 105 U. Pa. L. Rev. 781.

Frynas, J.G. "Problems of Access to Courts in Nigeria: Results of a Survey of Legal Practitioners" (2001) 10 Soc. & Leg. Stud. 397.

Fudge, J. "The Public/Private Distinction: The Possibilities of and the Limits to the Use of Charter Litigation to Further Feminist Struggles" (1988) 25 Osgoode Hall LJ. 485.

505 Gadbois, G.H. "The Institutionalization of the India Supreme Court" in J.R. Schimidhauser, ed., Comparative Judicial Systems: Challenging Frontiers in Conceptual and Empirical Analysis (London: Butterworths, 1987) 111.

. "The Supreme Court of India as a Political Institution" in R. Dhavan, R. Sudarshan & S. Khurshid, eds., Judges and the Judicial Power: Essays in Honour of Justice V.R. Krishna Iyer (Bombay: Tripathi, 1985) 251.

. "The Decline of Dissent on the Supreme Court" in R.A. Sharma, ed., Justice and Social Order in India (New Delhi: Intellectual Publishing House, 1984) at 235-259.

. "Supreme Court Decision Making" (1974) 10 Banaras L.J. 1.

. "Indian Judicial Behaviour" (1970) 5 Econ & Pol. Wkly 153.

. "The Supreme Court of India: A Preliminary Report of an Empirical Study" (1970) IV J. Const. & Pari. Studies 46. . "Indian Supreme Court Judges: A Portrait" (1969) Law & Soc'y Rev. 317.

. "Selection, Background Characteristics, and Voting Behavior of Indian Supreme Court Judges, 1950-1959" in G. Schubert & D.J. Danelski, eds., Comparative Judicial Behavior: Cross-Cultural Studies of Political Decision- Making in the East and West (New York: Oxford University Press, 1969) 221-56.

. "The Federal Court of India 1937-1950" (1964) 6 J.I.L.I. 253.

Galanter, M. "Why the 'Haves' Come Out Ahead: Speculations on the Limits of Legal Change" (1974) 6 Law & Soc'y Rev. 95.

Gardbaum, S. "The New Commonwealth Model of Constitutionalism" (2001) 49 Am. J. Comp. L. 707.

Georges, P.T. "The Court in the Tanzania On-Party State" in G.F.A. Sawyer, ed., East African Law and Social Change (Nairobi: East African Publishing House, 1967) 26.

Ghai, Y. "The Kenya Bill of Rights: Theory and Practice" in P. Alston, ed., Promoting Human Rights Through Bills of Rights: Comparative Perspectives (New York: Oxford University Press, 1999) 224.

506 . "Derogations and Limitations in the Hong Kong Bill of Rights" in J. Chan & Y. Ghai, eds., The Hong Kong Bill of Rights: A Comparative Approach (Singapore: Butterworths Asia, 1993) 161.

. "The Theory of the State in the Third World and the Problem of Constitutionalism. (1991) 6 Conn. J. Int'l L. 411.

. "The Rule of Law, Legitimacy and Governance" (1986) 14 Int'l J. Soc. Law 179.

. "Law and Lawyers in Kenya and Tanzania: Some Political Economy Considerations" in C.J. Dias, et al., Lawyers in the Third World: Comparative and Developmental Perspectives (Uppsala and New York: Scandinavian Institute of African Studies/ International Center for Law and Development, 1981) 144-76.

. "Matovu's Case: Another Comment" (1968) 1 Eastern Afr. L.R. 68-75.

Gibson, J. "Understandings of Justice: Institutional Legitimacy, Procedural Justice and Political Tolerance" (1989) 23 Law & Soc'y Rev. 469.

Gibson, J.L. "The Evolving Legitimacy of the South African Constitutional Court" in F. du Bois & A. du Bois-Pedain, Justice and Reconciliation in Post-Apartheid South Africa (Cambridge: Cambridge University Press, 2008) 229-266.

. "Decision Making in Appellate Courts" in J.B. Gates & C.A Johnson, ed., The American Courts: A Critical Assessment (Washington, D.C.: CQ Press, 1991) 255.

. "Personality and Elite Behavior: The Influence of Self-Esteem on Judicial Decision Making" (1981) 43 J. Politics 104.

Gibson, J.L. & G.A. Caldeira. "Defenders of Democracy? Legitimacy, Popular Acceptance, and the South African Constitutional Court" (2003) 65 J. Politics 1.

Gibson, J.L., G.A. Caldeira & V.A. Baird. "On the Legitimacy of National High Courts" (1998) 92 Am. Pol. Sci. Rev. 343.

Gilbert, G. "The Burgeoning Minority Rights Jurisprudence of the European Court of Human Rights" (2002) 24 Hum. Rts. Q. 736.

Giles, M.W. & T.D. Lancaster. "Political Transition, Social Development, and Legal Mobilization" (1989) 83 Am. Pol. Sci. Rev. 817.

507 Gillman, H. & C.W. Clayton. "Beyond Judicial Attitudes: Institutional Approaches to Supreme Court Decision-Making" in C.W. Clayton & H. Gillman, Supreme Court Decision-Making: New Institutionalist Approaches (Chicago: University of Chicago Press, 1999) 1.

Ginsburg, R.B. "Remarks on Writing Separately" (1990) 65 Wash. L. Rev. 133.

Gloppen, S. "The Accountability Function of the Courts in Tanzania and Zambia" (2003) 10:4 Democratization 112.

Goldberg, S.L. "Judicial Socialization: An Empirical Study" (1985) 11 J. Contemp. L. 423.

Grossman, J.B. "Social Background and Judicial Decision" (1966) 79 Harv. L. Rev. 1551.

Greer, S. "Constitutionalizing Adjudication under the European Convention on Human Rights" (2003) 23 Oxford J. Leg. Studies 405.

Grove, D.L. "The 'Sentinels' of Liberty? The Nigerian Judiciary and Fundamental Rights" (1963) 7 J. Afr. L. 152.

Gubbay, A.R. "The Protection and Enforcement of Fundamental Human Rights: the Zimbabwean Experience" (1997) 19 Hum. Rts. Q. 227.

Gutto, S.B.O. "Constitutional Law and Politics in Kenya since Independence: a Study in Class and Power in a Neo-Colonial State in Africa" (1987) 5 Zimb. L. Rev. 142.

Gyandoh, S.O. "Principles of Judicial Interpretation of the Republican Constitution" (1966) 3 U. Ghana L.J. 37.

Hannett, S. "Third Party Intervention: In the Public Interest? [2003] Pub. L. 128.

Hansen, T.T. "Implementation of International Human Rights Standard through the National Courts in Malawi" (2002) 46 J. Afr. L. 31

Haranath, V.S.K. "Supreme Court of India: 1950-70 - An Empirical Enquiry into Judicial Behaviour" (1973) 7 J. Const & Pari. Studies 116.

Hatchard, J. '"Perfecting Imperfections:' Developing Procedures for Amending Constitutions in Commonwealth Africa" (1998) 36 J. Mod Afr. Stud. 381.

Hatchard, J. & P. Slinn. "Toward an African Zimbabwean Constitution?" [1988] Third World L. S. 119. 508 Hausegger, L. & S. Haynie. "Judicial Decisionmaking and the Use of Panels in the Canadian Supreme Court and the South African Appellate Division" (2003) 37 Law& Soc'y Rev. 3.

Haynie, S.L. "Resource Inequalities and Litigation Outcomes in the Philippine Supreme Court" (1994) 56 J. Pol. 752.

. "Leadership and Consensus on the U.S. Supreme Court" (1992) 54 J. Politics 1158.

Head, A.D. "The Charter in the Supreme Court of Canada: The Importance of which Judges Hear an Appeal" (1991) 24 Can. J. Pol. Sci. 289.

Hein, G. "Interest Group Litigation and Canadian Democracy" (2000) 6 Choices 3.

Heifer, L.R. "Consensus, Coherence and the European Convention on Human Rights" (1993) 26 Cornell Int'l L.J. 133.

Helmke, G. "The Logic of Strategic Defection: Court-Executive Relations in Argentina under Dictatorship and Democracy" (2002) 96 Am. Pol. Sci. Rev. 291.

Henderson, D.F. "Law and Political Modernization in Japan" in R.E. Ward, ed., Political Development in Modern Japan (Princeton: Princeton University Press, 1968) 387.

Henkin, L. "A New Birth of Constitutionalism: Genetic Influences and Genetic Defects" in M. Rosenfeld, ed., Constitutionalism, Identity, Difference, and Legitimacy (Durham: Duke University Press, 1994) 39.

. "Revolutions and Constitutions" (1989) 49 La. L. Rev. 1023.

Heyn, C. "African Human Rights and the European Convention" (1993) 11 S. Afr. J. Hum. Rts. 252.

Herman, M.J. "Law Clerking at the Supreme Court of Canada" (1975) 13 Osgoode Hall L.J. 279.

Herron, E.S. & K.A. Randazzo. "The Relationship between Independence and Judicial Review in Post-Communist Courts" (2003) 65 J. Politics 422.

Hirschl, R. "The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions" (2000) 25 Law & Soc. Inquiry 91.

509 . "The Struggle for Hegemony: Understanding Judicial Empowerment through Constitutionalism in Culturally Divided Polities" (2000) 36 Stan. J. Int'l L. 73.

Hogg, P.W. "Is the Supreme Court of Canada Biased in Constitutional Cases" (1979) LVIICan. Bar Rev. 721.

Hogg, P.W. & A.A. Bushell, "The Charter Dialogue between Courts and Legislatures (or Perhaps the Charter of Rights isn't such a Bad Thing After All)" (1997) 35 Osgoode Hall L.J. 75.

Hopkins, R.F. "The Role of the M.P. in Tanzania" (1970) 64 Am. Pol. Sci. Rev. 754.

Hovius, B. "The Limitation Clauses of the European Convention on Human Rights: A Guide for the Application of Section 1 of the Charter" (1985) 17 Ottawa L. Rev. 213.

. "The Legacy of the Supreme Court of Canada's Approach to the Canadian Bill of Rights: Prospects for the Charter" (1982) 28 McGill L.J. 31.

Howard, R.E. "The Dilemma of Human Rights in Sub-Saharan Africa" (1980) 35 Int'l J. 724.

Howard, R.E. & J. Donnelly. "Human Dignity, Human Rights, and Political Regimes" (1986) 80 Am. Pol. Sci. Rev. 801.

Howard, W. "Justice Murphy: the Freshman Years" (1965) 18 Vand. L. Rev. 473.

Hussein, S.A. "Sudan: In the Shadows of Civil War and Politicization" in A.A. An- Na'im, ed., Human Rights Under African Constitutions: Realizing the Promise for Ourselves (Philadelphia: University of Pennsylvania Press, 2003) 342.

Iaryczower, M., P.T. Spiller & M. Tommasi. "Judicial Independence in Unstable Environments, Argentina 1935-1998" (2002) 46 Am. J. Pol. Sci. 699.

Ibhawoh, B. "Cultural Relativism and Human Rights: Reconsidering the Africanist Discourse" (2001) 19 Neth. Q. Hum. Rts. 43.

. "Between Culture and Constitution: Evaluating the Cultural Legitimacy of Human Rights in the African State" (2000) 22 Hum. Rts. Q. 838. Jacobs, F.G. "The 'Limitation Clauses' of the European Convention on Human Rights" in A. de Mestral et al., eds., The Limitation of Human Rights in Comparative Constitutional Law (Cowansville, Que: Yvon Blais, 1986) 21.

510 Kaplan, P.J. "Fundamental Rights in the Federation of Nigeria" (1962) 13 Syracuse L. Rev. 434.

Karlan, P.S. "Two Concepts of Judicial Independence" (1999) 72 S. Cal. L. Rev. 535.

Kasunmu, A.B. "The Supreme Court of Court of Nigeria: An Examination of its Composition and Function" in A.B. Kasunmu, ed., The Supreme Court of Nigeria, 1956-1970 (Ibadan: Heinemann, 1977) 1.

Katende, J.W. & G.W. Kanyeihamba. "Legalism and Politics in East Africa: The Dilemma of the Court of Appeal for East Africa" (1973) 43 Transition 43.

Kato, L.L. "The Court of Appeal for East Africa: From a Colonial Court to an International Court" (1971) 7 East Afr. L.J. 1.

Kavanagh, A. "The Idea of a Living Constitution" (2003) 16 Can. J. L. & Jurisprudence 55.

Kelly, J.B. "Reconciling Rights and Federalism during Review of the Charter of Rights and Freedoms: The Supreme Court of Canada and the Centralization Thesis, 1982 to 1991" (2001) Can. J. Pol. Sci. 321.

. "The Charter of Rights and Freedoms and the Rebalancing of Liberal Constitutionalism in Canada, 1982-1997" (1999) 37 Osgoode Hall L.J. 625.

Kenney, S.J. "Beyond Principals and Agents: Seeing Courts as Organizations by Comparing Referendaires at the European Court of Justice and Law Clerks at the U.S. Supreme Court" (2000) 33 Comp. Pol. Studies 593.

Kentridge, S. "The Highest Court: Selecting the Judges" (2003) 62 Cambridge L.J. 55.

Kirk, J. "Constitutional Guarantees, Characterisation and the Concept of Proportionality" (1997)21Melb.U. L.Rev. 1.

Kjekshus, H. "Parliament in a One-Party State - The Bunge of Tanzania, 1965-70" (1974) 12 J. Mod. Afr. Stud. 19.

Klare, K. "Legal Culture and Transformative Constitutionalism" (1998) 14 S. Afr. J. Hum. Rts. 146.

Kornhauser, L. "Is Judicial Independence a Useful Concept" in S.B. Burbank & B. Friedman, eds., Judicial Independence at the Crossroads: An Interdisciplinary Approach (Thousand Oaks, Calif.: Sage Publications, 2002) 45. 511 Krislov, S. "Theoretical Perspectives on Caseload Studies: Critique and a Beginning" in K.O. Boyum & L. Mather, eds., Empirical Theories about Courts (New York: Longman, 1983) 161.

. "The Amicus Curiae Brief: From Friendship to Advocacy" (1963) 72 Yale L.J. 694.

Kritzer, H. "The Government Gorilla: Why does the Government Come Out Ahead in Appellate Courts" in H.M. Kritzer & S.S. Silbey, eds., In Litigation: Do the "Haves" Still Come Out Ahead (Stanford: Stanford University Press, 2003) 342.

Kuria, G.K & J.B. Ojwang. "Judges and the Rule of Law in the Framework of Politics: the Kenya Case" [1979] Pub. L. 254.

Kuria, G.K & A.L. Vazquez. "Judges and Human Rights: the Kenya Experience" (1991) J. Afr. L. 142.

Larkins, CM. "Judicial Independence and Democratization: A Theoretical and Conceptual Analysis" (1996) 44 Am. J. Comp. L. 605.

Laskin, B. "The Institutional Character of the Judge" (1972) 7 Israel L.R. 329.

. "The Supreme Court of Canada: A Final Court of and for Canadians" (1951) 29 Can. Bar Rev. 1038.

Lavine, S. "Advocating Values: Public Interest Intervention in Charter Litigation" (1992) 2 Nat. J. Const. L. 27-62.

Lester, A. "The Overseas Trade in the American Bill of Rights" (1988) 88 Colum. L. Rev. 537.

Letsas, G. "The Truth in Autonomous Concepts: How to Interpret the ECHR" (2004) 15 Eur. J.I.L. 279.

Liddy, J. "The Concept of Family Life" [1998] Eur. H.R.L. Rev. 15.

Llewellyn, K.N. "Remarks on the Theory of Appellate Decision and the Rules or Canons about how Statutes are to be Construed" (1950) 3 Vand. L. Rev. 395.

Loux, A.C. "Writing Wrongs: Third-Party Intervention Post-Incorporation" in A. Boyle et al., eds., Human Rights and Scots Law (Oxford: Hart Publishing, 2002) 329-41.

512 . "Losing the Battle, Winning the War: Litigation Strategy and Pressure Group Organization in the Era of Incorporation" (2000) 11 KCLJ 90.

Madhuku, L. "The Impact of the European Court of Human Rights in Africa: The Zimbabwean Experience" (1996) 8 Afr. J. Int'l & Comp. L. 923.

Mahoney, P. "Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two Sides of the Same Coin" (1990) 11 Hum. Rts. L.J.57

Mahmud, T. "Jurisprudence of Successful Treason: Coup d' Etat & Common Law" (1994) 27 Cornell Int'l L. J. 49.

Maltzman, F., J.F. Spring & P.J. Wahlbeck. "Strategy and Judicial Choice: New Institutional Approaches Supreme Court Decision-Making" in C.W. Clayton & H. Gillman, Supreme Court Decision-Making: New Institutionalist Approaches (Chicago: University of Chicago Press, 1999) 43.

Maluwa, T. "The Incorporation of International Law and its Interpretational Role in Municipal Legal Systems in Africa: An Exploratory Survey" (1998) 23 S. Afr. Y.B. Int'l. L. 45.

Maltzman, F. & P.J. Wahlbeck. "May It Please the Chief? Opinion Assignments in the Rehnquist Court" (1996) 40 Am. J. Pol. Sci. 421.

Mandel, M. "A Brief History of the New Constitutionalism, or 'How We Changed Everything So that Everything would Remain the Same'" (1998) 32 Israel L.R. 250.

Manfredi, C. "The Use of United States Decisions by the Supreme Court of Canada under the Charter of Rights and Freedom" (1990) 23 Can. J. Pol. Sci. 499

Manfredi, C.P. & J.B. Kelly. "Misrepresenting the Supreme Court's Record? A Comment on Sujit Choudhry and Claire E. Hunter, 'Measuring Judicial Activism on the Supreme Court of Canada'" (2004) 49 McGill L.J. 741.

Marston, G. "The United Kingdom's Part in the Preparation of the European Convention on Human Rights, 1950" (1993) 42 Int'l & Comp. L.Q. 796.

Martin, R.B. "In the Matter of an Application by Michael Matovu" (1968) 1 Eastern Afr. L.R. 61-67.

Maru, O. "Measuring the Impact of Legal Periodicals" [1976] Am. B. F. Res. J. 227.

513 Marx, K. "On the Jewish Question" in Marx, Early Political Writings, ed. By J. O'Malley (Cambridge: Cambridge University Press, 1994) 28.

Matscher, F. "Methods of Interpretation of the Convention" in R.St.J. Macdonald, F. Matscher & H. Petzold, eds., The European System for the Protection of Human Rights (Dordrecht: Martinus Nijhoff, 1993) 63.

Mayall, R.C. "Recent Constitutional Developments in the Sudan" (1952) Int'l Affairs 310.

McAuslan, J.P.W.B. & Y.P. Ghai. "Constitutional Innovation and Political Stability in Tanzania: A Preliminary Assessment" (1966) 4 J. Mod. Afr. Stud. 479.

McCann, M.W. "Legal Mobilization and Social Reform Movements: Notes on Theory and its Application" (1991) 11 Stud. L. Pol. & Soc'y 225.

McCormick, P. "Do Judges Read Books, Too? Academic Citations by the Lamer Court 1991-96" (1998) 9 Supreme Court L.R. (2d) 463.

. "Judicial Career Patterns and the Delivery of Reasons for Judgment in the Supreme Court of Canada, 1949-1993" (1993) 59 Supreme Court L.R. (2d) 498.

. "Party Capability Theory and Appellate Success in the Supreme Court of Canada, 1949-1992" (1993) 26 Can. J. Pol. Sci. 523.

McCormick, P. & T. Job. "Do Women Judges Make a Difference? An Analysis by Appeal Court Data" (1993) 8 Can. J. Law & Soc'y 135-48.

McGuire, K.T. "The Institutionalization of the U.S. Supreme Court" (2004) 12 Pol. Analysis 18.

McHarg, A. "Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights" (1999) 62 Mod. L. Rev. 671.

Mclnnes, M., J. Bolton & N. Derzko. "Clerking at the Supreme Court of Canada" (1994) 33 Alta L. Rev. 58.

Mclver, J.P. "Scaling Judicial Decisions: The Panel Decisionmaking Process of the U.S. Courts of Appeals" (1976) 20 Am. J. Pol. Sci. 749.

514 McWhinney, E. "The Privy Council as Final Appellate Tribunal for the Overseas Empire" in Judicial Review, 4th ed. (Toronto: University of Toronto Press, 1969) 49-60.

. "Judicial Restraint and the West German Constitutional Court" (1961) 75 Harv. L. Rev. 5.

. "Judicial Concurrences and Dissents: A Comparative View of Opinion-writing in Final Appellate Tribunals" (1953) 31 Can. Bar Rev. 595.

Meek, C.K. "The Niger and the Classics: the History of a Name" (1960) 1 J. Afr Hist. 1.

Menkiti, LA. "Person and Community in African Traditional Thought" in R.A. Wright, ed., African Philosophy: An Introduction 3rd ed. (Lanham, Md.: University Press of America, 1984)171.

Mingst, K.A., "Judicial Systems of Sub-Saharan Africa: An Analysis of Neglect" (1988) 31 Afr. Studies Rev. 135.

Misra, R.K. "Freedom of Speech and the Law of Sedition" (1996) 8 J.I.L.I. 117.

Moderne, F. "Human Rights and Postcolonial Constitutions in Sub-Saharan Africa" in L. Henkin & A.J. Rosenthal, eds., Constitutionalism and Rights: The Influence of the United States Constitution Abroad (New York: Columbia University Press, 1990) 315.

Mokgatle, D.D. "The Exclusion of Blacks from the South African Judicial System" (1987) 3 S. Afr. J. Hum. Rts. 44.

Morris, H.F. "Protection or Annexation? Some Constitutional Anomalies of Colonial Rule" in H.F. Morris & J. Read, Indirect Rule and the Search for Justice: Essays in East African Legal History (Oxford: Clarendon Press: 1972) 42.

Morton, F.L. et al., "Judicial Nullification of Statutes under the Charter of Rights and Freedoms, 1982-1988" (1990) 28 Alta. L. Rev. 396.

Morton, F.L. P.H. Russell & T. Riddell, "The Canadian Charter of Rights and Freedoms: A Descriptive Analysis of the First Decade, 1982-1992" (1994) 5 Nat. J. Const. L. 1.

Motala, Z. "The Constitutional Court's Approach to International Law and its Method of Treating the 'Amnesty Decision:' Intellectual Honesty or Political Expediency" (1996) 21 S. Afr. Y. B. Int'l Law 29.

515 Mowbray, A. "The Creativity of the European Court of Human Rights" (2005) 5 Hum. Rts. L. Rev. 57

Mueller, S.D. "Government and Opposition in Kenya, 1966-9" (1984) 22 J. Mod. Afr. Stud. 399.

Murray, C. "A Constitutional Beginning: Making South Africa's Final Constitution" (2001) 23 U. Ark. Little Rock Law Review 809.

Mutua, M. "African Human Rights Organizations: Questions of Context and Legitimacy" in P.T. Zeleza & P.J. McConnaughay, eds., Human Rights, the Rule of Law, and Development in Africa (Philadelphia: University of Pennsylvania Press, 2004) 191.

. "Justice under Siege: the Rule of Law and Judicial Subservience in Kenya" (2001) 23 Hum. Rts. Q. 96.

. "The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties" (1995) 35 Va. J. Int. 339.

. "Human Rights and State Despotism in Kenya: Institutional Problems" (1994) Africa Today 50.

Naldi, G. "Limitation of Rights under the African Charter on Human and Peoples' Rights: The Contribution of the African Commission on Human and Peoples' Rights" (2001) 17 SAfr. J. Hum. Rts. 109.

. "Constitutional Challenge to Land Reform in Zimbabwe" (1998) 31 CILSA 78.

Ncube, W. & S. Nzombe. "The Constitutional Reconstruction of Zimbabwe: Much Ado about Nothing?" (1987) 5 Zimb. L. Rev. 2.

Neuborne, B. "The Supreme Court of India" (2003) 1 Int'l J. Const. L. 476.

Newbold, C. "The Role of the Judge as a Policy Maker" (1969) 2 Eastern Afr. LR 127.

Newland, C.A. "Legal Periodicals and the United States Supreme Court" (1959) 3 Midwest J. Pol. Sci. 58.

Ngcukaitobi, T. "The Evolution of Standing Rules in South Africa and their Significance in Promoting Social Justice" (2002) 18 S. Afr. J. Hum. Rts. 590.

516 Nnaemeka-Agu, P. "The Contribution of His Excellency Judge Taslim Elias to African Customary Law" in E.G. Bello & B. A. Ajibola, eds., Essays in Honour of Judge Taslim Olawale Elias vol. II (Dordrecht: Martinus Nijhoff, 1992) 515.

Note. "The International Judicial Dialogue: When Domestic Constitutional Courts Join the Conversation" (2001) 114 Harv. L. Rev. 2049

O'Brien, D.M. "Institutional Norms and Supreme Court Opinions: On Reconsidering the Rise of Individual Opinion" in C.W. Clayton & H. Gillman, Supreme Court Decision-Making: New Institutionalist Approaches (Chicago: University of Chicago Press, 1999)91

O'Connor, K. & L. Epstein. "Amicus Curiae Participation in U.S. Supreme Court Litigation: An Appraisal of Harkman's Folklore" (1981-82) 16 Law & Soc'y Rev. 311.

Odinkalu, C.A. "The Judiciary and the Legal Protection of Human Rights in Common Law Africa: Allocating Responsibility for the Failure of Post-Independence Bills of Rights" (1996) 8 ASICL Proc. 124.

Ogowewo, T.I. "Self-Inflicted Constraints on Judicial Government in Nigeria" (2005) 49 J. Afr. L. 39

. "Wrecking the Law: How Article III of the Constitution of the United States Led to the Discovery of a Law of Standing to Sue in Nigeria" (2000) 26 Brook. J. Int. L. 527.

. "The Problem with Standing to Sue in Nigeria" (1995) 39 J. Afr. L. 1.

Ojo, A. "Public Law, the Military Government and the Supreme Court" in A.B. Kasunmu, ed., The Supreme Court of Nigeria 1956-1970 (Ibadan: Heinemann, 1977) 90 at 105.

. "The Role of the Supreme Court in the Resolution of Power Conflict between the Federal and Regional Governments under the Constitution of the First Republic" (1974) 8 Nigerian L.J. 67.

Ojwang, J.B. & J.A. Otieno-Odek. "The Judiciary in Sensitive Areas of Public Law: Emerging Approaches to Human Rights Litigation in Kenya" (1988) XXXV Netherlands Inti L. Rev. 29.

Ojwang, J.B. & D.R. Salter. "Legal Education in Kenya" (1989) 33 J. Afr. L. 82.

517 Oloka-Onyango, J. "Judicial Power and Constitutionalism in Uganda: A Historical Perspective" in M. Mamdani & J. Oloka-Onyango, eds., Uganda: Studies in Living Conditions, Popular Movements, and Constitutionalism (Vienna: Journal fur Entwicklungspolitik, 1994)463.

Okere, B.O. "Judicial Activism or Passivity in Interpreting the Nigerian Constitution" (1987) 36 Int'l & Comp. L.Q. 788.

Okoth-Ogendo, H.W.O. "Constitutions without Constitutionalism: Reflections on an African Paradox" in D. Greenberg, et al., Constitutionalism and Democracy: Transitions in the Contemporary World (New York: Oxford University Press, 1993)65. Okpaluba, C. "Justiciability and Standing to Challenge Legislation in the Commonwealth: A Tale of the Traditionalist and Judicial Activist Approaches" (2003)36CILSA25.

Oputa, CO. "Towards Greater Efficiency in the Dispensation of Justice in Nigeria" in Y. Akinseye-George, (ed.), Law, Justice and Stability in Nigeria: Essays in Honour of Justice Kayode Eso (Ibadan: J. Shalom Multiserve Bureau, 1993) 1-48.

Osaghae, E.E. "Managing Multiple Minority Problems in a Divided Society: the Nigerian Experience" (1998) 3 6 J. Mod. Afr. Stud. 1.

. "Ethnic Minorities and Federalism in Nigeria" (1991) 90 Afr. Affairs 237.

. "Do Ethnic Minorities Still Exist in Nigeria" (1986) 24 J. Comm. & Comp. Pol. 151.

Ost, F. "The Original Canons of Interpretation of the European Court of Human Rights" in M. Demas-Marty & C. Chodkiewicz, eds., The European Convention for the Protection of Human Rights: International Protection Versus National Restrictions (Dortrecht/ Boston/ London: Martinus Nijhoff, 1992) 283.

Ostberg, C.L., M.E. Western & C.R. Ducat, "Attitudes, Precedents and Cultural Change: Explaining the Citation of Foreign Precedents by the Supreme Court of Canada" (2001) 34 Can. J. Pol. Sci. 377.

Palley, C. "Rethinking the Judicial Role: The Judiciary and Good Government" (1969) 1 Zambia L.J. 1.

Paul, J.C.N. "Some Observations on Constitutionalism, Judicial Review and Rule of Law in Africa" (1974) 35 Ohio St. LJ. 85.

518 Pearce, T.O. "Human Rights and Sociology: Some Observation from Africa" (2001) 48 Social Problems 48.

Peck, S.R. "A Scalogram Analysis of the Supreme Court of Canada, 1958-1967" in G. Schubert & D.J. Danelski, eds., Comparative Judicial Behavior: Cross-Cultural Studies of Political Decision-Making in the East and West (New York: Oxford University Press, 1969) 293.

. "The Supreme Court of Canada, 1958-1966: A Search for Policy through Scalogram Analysis" (1967) 45 Can. Bar Rev. 667-725.

Peters, D. "The Domestication of International Human Rights Instruments and Constitutional Litigation in Nigeria" (2000) 18 Neth. Q. Hum. Rts. 35.

Pfeiffer, S.B. "The Role of the Judiciary in the Constitutional Systems of East Africa" (1978) 16 J. Mod. Afr. Studies 33.

. "Notes on the Role of the Judiciary in the Constitutional Systems of East Africa since Independence" (1978) 10 Case W. Res. J. Int'l. L. 11.

Posner, R.A. "Is the Ninth Circuit Too Large? A Statistical Study of Judicial Quality" (2000) 29 J. Leg. Stud. 711.

. "Judges' Writing Styles (And Do They Matter?)" (1995) 62 U. Chi. L. Rev. 1421.

Pritchett, C.H. "Public Law and Judicial Behavior" (1968) 30 J. Politics 480.

Ramseyer, J.M. "The Puzzling (In)Dependence of Courts: A Comparative Approach" (1994)23 J. Leg. Stud. 721.

Ray, L.K. "The Road to Bush v. Gore: The History of the Supreme Court's Use of Per Curiam Opinion" (2000) 79 Neb. L. Rev. 517.

Read, J.S. "Bills of Rights in 'the Third World': Some Commonwealth Experiences" (1973) 1 Verfassung und Recht in Ubersee 21.

. "Constitutions on the Move: Constitutional and Legal Developments in 1958" (1959) J. Afr. L. 39.

Reyntjens, F. "Protecting Human Rights in Sub-Saharan Africa: Specific Problems and Challenges" (1992) 7 SA Pub. L. 40.

519 . "Authoritarianism in Francophone Africa from the Colonial to the Postcolonial State" [1988] Third World L.S. 59.

Roach, K. "The Role of Litigation and the Charter in Interest Advocacy" in F.L. Seidle, ed., Equity & Community: The Charter, Interest Advocacy and Representation (Montreal: Institute for Research on Public Policy, 1993) 159-188.

. "Section 24(1) of the Charter: Strategy and Structure" (1987) 29 Crim. L.Q. 222.

Robel, L.K. "Caseload and Judging: Judicial Adaptations to Caseload" [1990] BYU L. Rev. 3.

Roberts, N. "The Law Lords and Human Rights: The Experience of the Privy Council in Interpreting Bills of Rights" [2000] Eur. H.R.L. Rev. 147.

Roberts-Wray, K. "Human Rights in the Commonwealth" (1968) 17 Int'l & Comp. L.Q. 908.

Rosenn, K.S. "The Protection of Judicial Independence in Latin America" (1987) 19 U. Miami Inter-Am. L. Rev. 1.

Ross, J.M. "Standing in Charter Declaratory Actions" (1995) 33 Osgoode Hall L.J. 151.

Ross, S.D. "The Rule of Law and Lawyers in Kenya" (1992) 30 J. Mod. Afr. S. 421.

Roux, T. "Principle and Pragmatism on the Constitutional Court of South Africa" (2009) 7 Int'l J. Const. L. 106

Russell, P.H. "Towards a General Theory of Judicial Independence" in P.H. Russell & D. O'Brien, eds., Judicial Independence in the Age of Democracy: Critical Perspectives from Around the World (Charlottesville: University of Virginia Press, 2001)1.

. "The Supreme Court and Federal-Provincial Relations: The Political Use of Legal Resources" (1985) 11 Can. Pub. Pol'y 161.

. "Constitutional Reform of the Judicial Branch: Symbolic vs. Operational Considerations" (1984) 17 Can. J. Pol. Sci. 227.

. "The Jurisdiction of the Supreme Court of Canada: Present Policies and a Programme for Reform" (1968) 6 Osgoode Hall L.J. 1.

520 Rwelamira, M.D.K. "The Tanzanian Legal Profession" in C.J. Das, et al., Lawyers in the Third World: Comparative and Development Perspectives (Uppsala: Scandinavian Institute of African Affairs, 1981) 204.

Sachs, A. "A Bill of Rights for South Africa" in P. Nhere & M. Engelbronner-Kolff, (eds.), The Institution of Human Rights in Southern Africa (Copenhagen: Nordic Human Rights Publications, 1993) 27.

Samn0y, A. "Zimbabwe," in B. Andreassen & T. Swinehart, eds., Human Rights in Developing Countries Yearbook 1991 (Oslo: Scandinavian University Press, 1992) 380.

Sanders, A.J.G.M. "Constitutionalism in Botswana: A Valiant Attempt at Judicial Activism" (1983) XVI CILSA 350, (1984) XVII CILSA 39.

Sarkin, J. "The Effect of Constitutional Borrowings on the Drafting of South Africa's Bill of Rights and Interpretation of Human Rights Provisions" (1998) 1 U. Pa. J. Const. L. 176.

. "The Political Role of the South African Constitutional Court" (1997) 114 SALJ 134

Sathe, S.P. "Judicial Activism: the Indian Experience" (2001) 6 Wash. U.J.L. & Pol'y. 29.

Schauer, F. "Formalism" (1988) 97 Yale L.J. 509.

Scheppele, K.L. "Declarations of Independence: Judicial Reactions to Political Pressure" in S.B. Burbank & B. Friedman, eds., Judicial Independence at the Crossroads: An Interdisciplinary Approach (Thousand Oaks, Calif.: Sage Publications, 2002) 227.

Schedler, A. "Conceptualizing Accountability" in A. Schedler, L. Diamond & M. Plattner, eds., The Self-Restraining State: Power and Accountability in New Democracies (Boulder: Lynne Rienner Publishers, 1999) 13-28.

Scheppele, K.L. & J.L. Walker. "The Litigation Strategies of Interest Groups" in J.L. Walker, Mobilizing Interest Groups in America: Patrons, Professions, and Social Movements (Ann Arbor: The University of Michigan Press, 1991) 157.

Schmidhauser, J.R. "An Exploratory Analysis of the Institutionalization of Legislatures and Judiciaries" in A. Kornberg, ed., Legislatures in Comparative Perspective (New York: David McKay Co., 1973) 127.

521 . Stare Decisis, Dissent, and the Background of the Justices of the Supreme Court of the United States" (1962) 14 U.T.L.J. 194.

. "The Justices of the Supreme Court: A Collective Portrait" (1959) 3 Midwest. J. Pol. Sci. 1.

Schwarz, C. "Judges under the Shadow: Judicial Independence in the United States and Mexico" (1973) 3 Cal. W. Int'l L.J. 260.

Seidman, R.B. "Judicial Review and Fundamental Freedoms in Anglophone Independent Africa" (1974) 35 Ohio St. L.J. 820, reprinted in R.B. Seidman, The State, Law and Development (London: Croom Helm, 1978) 364.

. "The Style of Appellate Opinions in East Africa: A Comment" (1970) 3 Eastern Afr.LR 189-201.

. "Constitutions in Independent, Anglophonic Sub-Saharan Africa: Form and Legitimacy" [1969] Wis. L. Rev. 83.

. "Constitutional Standards of Judicial Review of Administrative Actions in Nigeria" (1964) 1 Nigerian L.J. 232.

Sheldon, C.H. "The Incidence and Structure of Dissensus on a State Supreme Court" in C.W. Clayton & H. Gillman, Supreme Court Decision-Making: New Institutionalist Approaches (Chicago: University of Chicago Press, 1999) 115.

Sheldrick, B. "Law, Representation, and Political Activism: Community-based Practice and the Mobilization of Legal Resources" (1995) 10 (2) Can. J. Law & Soc'y 155.

Sherry, S. "Civic Virtue and the Feminine Voice in Constitutional Adjudication" (1986) 72 Va. L. Rev. 543.

Shivji, I.G. "Contradictory Developments in the Teaching and Practice of Human Rights in Tanzania" (1991) 35 J. Afr. L. 116.

Simpson, A.W.B. "Round Up the Usual Suspects: the Legacy of British Colonialism and the European Convention on Human Rights" (1996) 41 Loy. L. Rev. 629.

Singh, M.P. "Securing the Independence of the Judiciary - the Indian Experience" (2000) 10 Ind. Int'l & Comp. L. Rev. 245.

Sirico, L.J. & J.B. Margulies. "The Citing of Law Reviews by the Supreme Court: An Empirical Study" (1986) 34 UCLA L. Rev. 131.

522 Sisson, R. "Comparative Legislative Institutionalization: A Theoretical Exploration" in A. Kornberg, ed., Legislatures in Comparative Perspective (New York: David McKay Co., 1973)17.

Slaughter, A. "Judicial Globalization" (2000) 40 Va. J. Int'l L. 1103.

. "A Typology of Transjudicial Communication" (1994) 29 U. Rich. L. Rev. 99

Slayton, P. "Quantitative Methods and Supreme Court Cases" (1972) 10 Osgoode Hall L.J. 429.

. "A Critical Comment on Scalogram Analysis of Supreme Court of Canada Cases" (1971) 21 U. Toronto L.J. 393.

Slotnick, E.E. "Judicial Career Patterns and Majority Opinion Assignment on the Supreme Court" (1979) 41 J. Politics 640.

. "Who Speaks for the Court? Majority Opinion Assignment from Taft to Burger" (1979) 23 Am. J. Pol. Sci. 60.

Smith, M. "Ghosts of the Judicial Committee of the Privy Council: Group Politics and Charter Litigation in Canadian Political Science" (2002) 35 Can. J. Pol. Sci. 3.

. "Interest Groups and Social Movements" in M. Whittington & G. Williams, eds., Canadian Politics in the 21st Century (Scarborough, ON: Nelson, 2000) 179. de Smith, S.A.. "Fundamental Rights in the New Commonwealth" (1961) 10 Int'l & Comp. L.Q. 215.

Smith, R. "How Good are Test Cases" in J. Cooper & R. Dhavan, eds., Public Interest Law (Oxford: Basil Blackwell, 1986) 271-285.

Smithey, S.I "A Tool, not a Master: The Use of Foreign Case Law in Canada and South Africa" (2001) 34 Comp. Pol. Studies 1188.

. "The Effects of the Canadian Supreme Court's Charter Interpretation on Regional and Intergovernmental Tensions in Canada" (1996) 26 Publius 83.

Songer, D.R. "Factors Affecting Variation in Rates of Dissent in U.S. Courts of Appeal" in S. Goldman & CM. Lamb, eds., Judicial Conflict and Consensus: Behavioral Studies of American Appellate Courts (Lexington: University of Kentucky, 1986) 177-138.

523 . Consensual and Nonconsensual Decisions in Unanimous Opinions of the United States Courts of Appeals" (1982) 26 Am. J. Pol. Sci. 225.

Songer, D.R. & K.A. Crews-Meyer. "Does Judge Gender Matter? Decision Making in State Supreme Courts" (2000) 81 Social Sci. Q. 750.

Sossin, L. "The Sounds of Silence: Law Clerks, Policy-Making and the Supreme Court of Canada" (1996) 30 U.B.C. L. Rev. 279.

Spaeth, H.J. "The Attitudinal Model" in L. Epstein, ed., Contemplating Courts (Washington, D.C.: CQ Press, 1995) 296.

Spriggs, J.E. "Amicus Curiae and the Role of Information at the Supreme Court" (1997) 50 Pol. Res. Q. 365.

Stemmet, A. "The Influence of Recent Developments in South Africa on the Relationship between International Law and Municipal Law" (1994) 33 Int'l Lawyer 47-74.

Steytler, N. "The Judicialization of Namibian Politics" in C.N. Tate & T. Vallinder, (eds.) The Global Expansion of Judicial Power (New York: New York University Press, 1995)485-511.

Strauss, D.A. "Afterword: The Role of a Bill of Rights" (1992) 59 U. Chi. L. Rev. 539 at 540-48, reprinted in G.R. Stone, R.A. Epstein & C.R. Sunstein, eds., The Bill of Rights in the Modern State (Chicago: University of Chicago Press, 1992) 539- 565.

Strydom, G.J.C. "A Bill of Rights and 'Value Judgments' vs. Positivism: the Namibia Experience" in J. Kruger & B. Currin, eds., Interpreting a Bill of Rights (Kenwyn: Juta & Co., 1994) 94.

Suberu, R.T. "The Supreme Court and Federalism in Nigeria" (2008) 46 J. Mod. Afr. Studies 451.

Susman, S.D. "Distant Voices in the Courts of India: Transformation of Standing in Public Interest Litigation" (1994) 13 Wis. Int'l. L.J. 57.

Swan, K.P. "Intervention and Amicus Curiae in Charter Litigation" in R.J. Sharpe, ed., Charter Litigation (Toronto/ Vancouver: Butterworths, 1987) 27-44.

Swinton, K. "Dickson's Style and Sources" in D.J. Guth, ed., Brian Dickson at the Supreme Court of Canada 1973-1990 (Winnipeg: Faculty of Law, The University of Manitoba for the Supreme Court of Canada Historical Society, 1998) 185-191.

524 Sylvester, C. "Wither Opposition in Zimbabwe" (1995) 33 J. Mod. Afr. Stud. 403.

Tamanaha, B.Z. "The Internal/ External Distinction and the Notion of a 'Practice" in Legal Theory and Sociolegal Studies" (1996) 30 Law & Soc'y. Rev. 163.

Tanenhaus, J. "The Cumulative Scaling of Judicial Decisions," (1966) 79 Harv. L. Rev. 1583.

Tarnopolsky, W.S. "The Canadian Bill of Rights: From Diefenbaker to Drybones" (1971) 17McGillL.J.437

Tate, C.N. "Why the Expansion of Judicial Power" in C.N. Tate & T. Vallinder, (eds.) The Global Expansion of Judicial Power (New York: New York University Press, 1995)27.

. "Courts and Crisis Regimes: A Theory Sketch with Asian Cases Studies" (1993) 46 Pol. Research Q. 311.

. "Personal Attribute Models of Voting Behaviour of the U.S. Supreme Court Justices: Liberalism in Civil Liberties and Economic Decisions, 1946-1978" (1981) 75 Am. Pol. Sci. Rev. 355.

Tate, C.N., & R. Handberg. "Time Binding and Theory Building in Personal Attribute Models of Supreme Court Voting Behavior, 1916-88" (1991) 35 Am. J. Pol. Sci. 460.

Tate, C.N. & S.L. Haynie. "Authoritarianism and the Functions of Courts: A Time Series Analysis of the Philippine Supreme Court, 1961-1987" (1993) 27 Law & Soc'y Rev. 707

Tate, C.N. & P. Sittiwong. "Decision Making in the Canadian Supreme Court: Extending the Personal Attributes Model Across Nations" (1989) 51 J. Politics 900.

Thiis, 0. & G. Feltoe. "Zimbabwe" in H. Stokke, A. Suhrke & A. Tostensen, eds., Human Rights in Developing Countries Yearbook 1997 (The Hague: Kluwer, 1998) 377.

Tenga, N. & CM. Peter. "The Right to Organize as Mother of all Rights: the Experience of Women in Tanzania" (1996) 34 J. Mod. Afr. Stud. 143.

Trakman, L.E., W. Cole-Hamilton & S. Gratien. "R. v. Oakes 1986-1997: Back to the Drawing Board" (1998) 36 Osgoode Hall LJ 83.

525 Tremblay, L.B. "The Limits of Judicial Review: The Limits of Dialogue between Courts and Legislatures" (2005) 3 Int'l J. Const. L. 617.

Tripathi, P.K. "Perspectives on the American Constitutional Influence on the Constitution of India" in L.W. Beer, ed., Constitutionalism in Asia: Asian Views of the American Influence (Berkeley: University of California Press, 1979) 56.

. "Foreign Precedents and Constitutional Law" (1957) 57 Colum. L. Rev. 319.

Tushnet, M. "Living with a Bill of Rights" C. Gearty & A. Tomkins, Understanding Human Rights (London: Mansell, 1996) 3.

Ukhuegbe, S. "The Concept of 'Property' in the Nigerian Constitution," (1990) 1 U. Benin L.J. 106-113.

Ulmer, S.S. "Are Social Background Models Time Bound" (1986) 80 Am. J. Pol. Sci. 957.

. "Dissent Behavior and the Social Background of Supreme Court Justices" (1970) 32 J. Politics 580.

Uzoigwe, G.N. "The Niger Committee of 1898: Lord Selboune's Report" (1968) 4 J. Hist. Soc. Nigeria 467.

Vasak, K. "The European Convention of Human Rights Beyond the Frontiers of Europe" (1963) 12 Int'l & Comp. L.Q. 1206.

Viljoen, F. "Application of the African Charter on Human and Peoples' Rights by Domestic Courts in Africa" (1999) 43 J. Afr. L. 1. de Villiers, B. "The Constitutional Principles - Content and Significance" in B. de Villiers, ed., Birth of a Constitution (Kenwyn: Juta & Co., 1994).

Verner, J.G. "The Independence of Supreme Courts in Latin America: A Review of the Literature" (1984) 16 J. Lat. Amer. Studies 463.

Vondoepp, P. "The Problem of Judicial Control in Africa's Neopatrimonial Democracies: Malawi and Zambia" (2005) 120 Pol. Sci. Q. 275.

Wahlbeck, P.J., J.F. Springs & L. Sigelman. "Ghostwriters on the Court?: A Stylistic Analysis of U.S. Supreme Court Opinion Drafts" (2002) 30 Am. Pol. Res. 166.

Waldron, J. "Participation: the Right of Rights" in Law and Disagreement (Oxford: Oxford University Press, 1999) at 232-54. 526 Walker, T.G. L. Epstein & W.J. Dixon, "On the Mysterious Demise of Consensus Norms in the United States Supreme Court" (1988) 50 J. Politics 361.

Warbrick, C. "Coherence and the European Court of Human Rights: The Adjudicative Background to the Soering Case" (1990) 11 Mich J. Int'l L. 1073

Warren, S.D. & L.D. Brandeis. "The Right to Privacy" (1890) 4 Harv. L. Rev. 193.

Wasby, S.L., et al. "The Per Curiam Opinion: Its Nature and Functions" (1992) 76 Judicature 29

Webb, H. "The Constitutional Court of South Africa: Rights Interpretation and Comparative Law" (1998) I U. Pa. J. Const. L. 205.

Weiler, P. "Of Judges and Scholars: Reflections in a Centennial Year" (1975) LIII Can. Bar Rev. 563 at 564.

. "Two Models of Judicial Decision-Making" (1968) XLVI Can. Bar Rev. 406.

Weinrib, L. E. "Appointing Judges to the Supreme Court of Canada in the Charter Era: A Study in Institutional Function and Design" in Ontario Law Reform Commission, Appointing Judges: Philosophy, Politics and Practice (Toronto: Ontario Law Reform Commission, 1991) 109.

Welch, C.E. "The Right of Association in Ghana and Tanzania" (1978) 16 J. Mod. Afr. Stud. 639.

Welch, J. "No Room at the Top: Interest Groups Intervenors and Charter Litigation in the Supreme Court of Canada" (1985) 43 U. Toronto Fac. L. Rev. 204.

Wheeler, S., et al. "Do the 'Haves' Come Out Ahead? Winning and Losing in State Supreme Courts, 1870-1970" (1987) 21 Law & Soc. Rev. 403.

Wiechers, M., "Namibia: The 1982 Constitutional Principles and their Significance" in D. van Wyk, M. Wiechers & R. Hill, Namibia: Constitutional and Legal Issues (Pretoria: VerLoren van Themaat Centre for Public Law Studies, 1991) c. 1.

Wilson, B. "Will Women Judges Really Make a Difference" (1990) 28 Osgoode Hall L.J. 507.

. "Decision-Making in the Supreme Court" (1986) 36 U.T.L.J. 227.

527 Wilson, B.M. "Changing Dynamics: The Political Impact of Costa's Constitutional Court" in R. Sieder, L. Schjolden & A. Angel, eds., The Judicialization of Politics in Latin America (New York: Palgrave Macmillan, 2005) 47-65.

Wippman, D. "The Evolution and Implementation of Minority Rights" (1997) 66 Fordham L. Rev. 597.

Wing, A.K. "Communitarianism vs. Individualism: Constitutionalism in Namibia and South Africa" (1993) 11 Wis. IntT L.J. 295. de Winton, M.G. "Fundamental Rights in Nigeria" in L. Brett, ed., Constitutional Problems of Federalism in Nigeria (London: Sweet & Maxwell, 1961) 61.

Women's Legal Education and Action Fund. Equality and the Charter: Ten Years of Feminist Advocacy Before the Supreme Court of Canada (Toronto: Emond Montgomery, 1996).

Yusuf, H.O. "Robes on Tight Robes: The Judicialisation of Politics in Nigeria" (2008) 8: 2 Global Jurist, Article 3 (available at http://www.bepress.com/gi/vol8/iss2/art3).

Ziegel, J.S. "Merit Selection and Democratization of Appointments to the Supreme Court of Canada" in P. Howe & P. Russell, Judicial Power and Canadian Democracy (Montreal & Kingston: McGill-Queen's University Press, 2001) 131.

Zorn, C.J.W. & S.R. van Winkle. 'A Competing Risks Model of Supreme Court Vacancies, 1789-1992" (2000) 22 Pol. Behavior 145.

C. Government Publications

Constitutional Proposals for the Federation of Malaya Cmnd. 210 (London: H.M.S.O., 1957).

Proposals for Indian Constitutional Reform Cmd. 4268 (1933).

Report of the Basutoland Constitutional Commission Cmnd. 897.

Report of the Commission Appointed to Enquire into the Fears of Minorities and the Means of Allaying Them Cmnd. 505 (London: H.M.S.O., 1958).

Report of the Federation of Malaya Constitutional Commission 1957 (London: H.M.S.O., 1957).

528 Report of the Kenya Constitutional Conference Cmnd. 1700 (London: H.M.S.O., 962).

Report of the Kenya Constitutional Conference Cmnd. 960 (1960).

Report of the Public Service Review Commission (Lagos: Federal Government Printer, 1974).

Report by the Resumed Nigeria Constitutional Conference held in London in September and October, 1958 Cmnd. 569 (London: H.M.S.O., 1958).

Report by the Nigerian Constitutional Conference held in London in May and June, 1957 Cmnd. 207 (London: H.M.S.O., 1957).

Report by the Resumed Conference on the Nigerian Constitution Cmd. 9059 (London: H.M.S.O., 1954).

Report by the Conference on the Nigerian Constitution held in London in July and August, 1953 Cmd. 8934 (London: H.M.S.O., 1953).

Report of the Indian Statutory Commission Vol. II (London: H.M.S.O., 1930).

Report by Sir F.D. Lugard on the Amalgamation of Northern and Southern Nigeria, and Administration, 1912-1919 Cmd. 468 (1920).

Report by the Resumed Nigeria Constitutional Conference Cmnd. 569 (1958).

Report of the Sierra Leone Constitutional Conference Cmnd. 1029 (1960).

Report of the Uganda Constitutional Conference, 1961 and Text of the Agreed Draft of the New Buganda Agreement Initialled in London on 9th October 1961 Cmnd. 1523 (1961).

Ministry of Law and Justice, Government of India. Report of the National Commission to Review the Working of the Constitution, online: (date accessed: 2 May 2002).

Federal Republic of Nigeria. Report of the Political Bureau (March, 1987).

Law Commission of India. Structure and Jurisdiction of the Higher Judiciary (Fifty- Eight Report) (New Delhi, 1974).

. Civil Appeals to the Supreme Court on a Certificate of Fitness {Forty-fifth Report) (New Delhi: Ministry of Law & Justice, 1972).

529 . The Appellate Jurisdiction of the Supreme Court in Civil Matters (Forty-fourth Report) (New Delhi: Ministry of Law, 1972).

. Reform of Judicial Administration (Fourteenth Report) (New Delhi: Ministry of

Law, 1958).

S. Afr. Law Commission. Project 58: Group and Human Rights: Interim Report (1991).

. Project 58: Group and Human Rights (Working Paper 25) (1989). Verity, Sir John, "Memorandum by the Chief Justice on the Position of the Judiciary and Administration of Justice under the Proposed Revised Constitution of Nigeria" CO 554/319, no. 11 (9 Sept. 1953).

D. Other Materials Abati, R. & K. Osadolor. "The Supreme Court: Brave Men, Great Institution" The Guardian [Lagos] (1 January 2003) Al.

Afrobarometer (African public opinion research)

Bhagwati, P.N. Speech before All India Law Teachers Conference, Varanasi, India, 27 December 1979.

Bumin, K. M., K. A. Randazzo, & L. D. Walker. "Institutional Viability and High Courts: A Comparative Analysis" (read at the Annual Meeting of the Midwest Political Science Association, Chicago, IL., April 2005). Available online (working paper 2005-02, The S. Sidney Ulmer Project).

Constitution of Kenya Review Commission. Report of Advisory Panel of Eminent Commonwealth Judicial Experts, online: C.K.R.C. Homepage (Last accessed: 9 October 2002.

"Constitution Review: Reduce Number of Supreme Court Justices - Belgore" Thisday (20 January 2004) 1. Available online

Freedom House

530 Gloppen, S. "How to Assess the Political Role of the Zambian Courts" (working paper, Chr. Michelsen Institute, 2004) available online .

Hahn, R. Commonwealth Bills of Rights: Their Nature and Origin (Ph.D. Thesis, Oxford Univ., 1986) [unpublished].

Haynie, S.L., et al. "Winners and Losers: A Comparative Analysis of Appellate Courts and Litigation Outcomes," paper read at the annual meeting of the American Political Science Association, 2001. Available online: (date accessed: 15 October 2003).

Human Rights Law Service. "Report of Proceedings of a Press Conference of the Nigerian Coalition on the Death Penalty Abolition, and Moratorium Campaign, held in Lagos on Tuesday, October 8, 2002," online: (date accessed: 15 March 2005).

. "Death Penalty Project," online: The Human Rights Law Service (date accessed: 14 December 2003).

. Annual Report and Accounts, 2000 (Lagos: Human Rights Law Service, 2001).

International Bar Association. "Malawi Report" (2002) online: http://www.ibanet.org/pdf/HRIMalawiReport.pdf

. Report of Zimbabwe Mission 2001 online: < http://www.ibanet.org/pdf/final reportl .pdf> (date accessed: 21 May 2001).

Karibi-Whyte, Justice. Interview with Thisday [Lagos], (28 January 2002), online: (date accessed: 28 January 2002).

Kirk-Greene, A.H.M. "Who Coined the Name 'Nigeria"?" West Africa, 22 Dec 1956 at 1035

Legal Aid Ontario 2003. Annual Report. Available online (date accessed: 7 December 2004).

531 Legal Resources Centre (South Africa). Annual Report 2003. Available online: (date accessed: 27 July 2005).

Legal Resources Foundation (Zimbabwe). Annual Report 2004. Available online: http://www.lrf.co.zw/Documents/LRF%20Annual%20ReDort2004.rtf)

. Annual Report 2005. Available online

McKee, C.T-R. The Supreme Court of Canada and Intergovernmental Relations: The Impact of Litigious and Political Transaction Costs on Federal-Provincial Conflicts Over Offshore Petroleum Resources in Canada, 1958-1985 (Ph.D. Thesis, Queen's Univ., Kingston, 1994) [unpublished].

Morton, F.L. & R. Knopff. "The Supreme Court as the Vanguard of the Intelligentsia: The Charter Movement as Postmaterialist Politics" (Occasional Paper, Research Unit for Socio-Legal Studies, Univ. of Calgary, 1992).

"Nigeria Settles Paris Club Debt" BBC News (April 21, 2006), online: BBC News

Open Society Institute. "Monitoring the EU Accession Process: Judicial Independence" (2001) online: < http://www.eumap.org/reports/2001/iudicial>

Puro, S. The Role of the Amicus Curiae in the United States Supreme Court, 1920-1966 (Ph.D Thesis, State University of New York at Buffalo, 1971) [unpublished].

Remington, L.R. "The Legitimacy of African Courts: An Analysis of Public Trust," paper prepared for presentation at the Interim Meeting of the Research Committee for Comparative Judicial Studies, February 2006 (on file with the author).

Report of the Ontario Legal Aid Review: A Blueprint for Publicly Funded Legal Services Vol. 1 (Toronto: Ontario Legal Aid Review, 1997).

Rules of the United States Supreme Court, available online: See http://www.supremecourtus.gov./ctrules/ctrules.html (last visited 22 June 2002)

Shorter Oxford English Dictionary 5 ed. 2 vols. (Oxford: Oxford University Press, 2002).

Smithey, S.I. "Judges as Constitution Makers: Strategic Assertions of Judicial Authority," paper read at Conference on Scientific Study of the Judiciary, 1999. Available

532 online:

. Judicial Adaptation to the Uncertainties of Constitutional Transformation: The Canadian Supreme Court and the Courts of Appeal under the Charter of Rights and Freedoms (Ph.D. Thesis, Ohio State Univ., 1994) [unpublished].

Songer, D.R., A. Clark & R. Johnson. "The Effects of Judge Gender in Appellate Courts: A Comparative Cross-National Test" (paper read at the 2003 Meeting of the American Political Science Association, Philadelphia, 30 September 2003) [unpublished] . Available online: (date accessed: 30 March 2004).

Songer, D.R. & S.W. Johnson. "Attitudinal Decision Making in the Supreme Court of Canada" (paper read at the Midwest Political Science Association conference 2002) [unpublished]. Available online: (date accessed: 30 March 2004).

Supreme Court of Canada. "Statistics 1991-2001" online: http://www.scc- csc.gov.ca/information/statistics/index e.html (date accessed 22 June 2002).

Uwais, Chief Justice. Interview with Thisday newspaper, 16 Nov. 2004). Online: Thisday < http://thisdavonline.eom/archive/2004/01/13/200401131aw04.html> (date accessed: 3 December 2004).

, "Constitution of Supreme Court Panel at my Discretion" Thisday (26 March 2001), online: (date accessed: 27 March 2001) (interview with Chief Justice Uwais).

Who's Who in Nigeria 2nd ed. (Lagos: Newswatch Publications, 2002).

Wilson, R.J. & J. Rasmussen. "Promoting Justice: A Practical Guide to Strategic Human Rights Lawyering" (2001) at 60, available online: International Human Rights Law Group http://www.hrlawgroup.org/resources/content/PromotingJustice.pdf (last visited: 22 May 2003).

533