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HUMAN RIGHTS DECISION-MAKING IN EMERGENT COURTS: THE SUPREME COURT OF NIGERIA, 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 July 2009 Library and Archives Bibliotheque et 1*1 Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington OttawaONK1A0N4 Ottawa ON K1A 0N4 Canada Canada Your file Votre reference ISBN: 978-0-494-54110-4 Our file Notre reference ISBN: 978-0-494-54110-4 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library and permettant a la Bibliotheque et Archives Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par I'lnternet, prefer, telecommunication or on the Internet, distribuer et vendre des theses partout dans le loan, distribute and sell theses monde, a des fins commerciales ou autres, sur worldwide, for commercial or non­ support microforme, papier, electronique et/ou commercial purposes, in microform, autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in this et des droits moraux qui protege cette these. Ni thesis. Neither the thesis nor la these ni des extraits substantiels de celle-ci substantial extracts from it may be ne doivent etre imprimes ou autrement printed or otherwise reproduced reproduits sans son autorisation. without the author's permission. In compliance with the Canadian Conformement a la loi canadienne sur la Privacy Act some supporting forms protection de la vie privee, quelques may have been removed from this formulaires secondaires ont ete enleves de thesis. cette these. While these forms may be included Bien que ces formulaires aient inclus dans in the document page count, their la pagination, il n'y aura aucun contenu removal does not represent any loss manquant. of content from the thesis. ••I Canada Human Rights Decision-Making in Emergent Courts: The Supreme Court of Nigeria, 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 Permission has been granted to: a) YORK UNIVERSITY LIBRARIES to lend or sell copies of this dissertation in paper, microform or electronic formats, and b) LIBRARY AND ARCHIVES CANADA to reproduce, lend, distribute, or sell copies of this dissertation anywhere in the world in microform, paper or electronic formats and to authorize or procure the reproduction, loan, distribution or sale of copies of this dissertation anywhere in the world in micro­ form, paper or electronic formats. The author reserves other publication rights, and neither the dissertation nor extensive extracts from it may be printed or otherwise reproduced without the author's written permission. In gratitude to Ayinbueze, without whom this work would never have been completed. 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 .

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