In my book Court and Politics: Chronicling my Experience in the Nigerian Theatre, I brought to the fore my personal experience on the unwholesomeness of some judgments of the Nigerian courts on certain critical political matters affecting our democracy. Because I am seen as a marginal player, my testimony went unheeded. But lately, it seems the chicken has finally come home to roost.
2. In the wake of recent Supreme Court rulings in Nigeria, particularly in cases such as those involving Imo governorship, Senate President Godswill Akpabio, former Senate President Ahmed Lawan, PDP Chairman Uche Secondus, Rivers State legislators, etc. legal and political circles have reignited one critical issue I raised in my book – i.e. a long-standing debate on judicial supremacy in presidential democracy! These cases have attracted widespread criticism because of the central figures involved, but they represent only a fraction of the judicial decisions that I have raised concerns about. Numerous other rulings affecting lesser-known individuals remain buried in law reports, yet their implications on the destruction of our democracy are no less consequential.
3. The real question, however, is not just about the correctness or otherwise of these judgments but about the very structure that grants the judiciary, particularly the Supreme Court, the final say in constitutional interpretation. In essence, should courts hold ultimate authority over the meaning of the constitution and the law in a presidential democracy? Or should constitutional interpretation be a shared responsibility among the branches of government?
4. To answer these questions appropriately, it should be clearly understood that the judicial supremacy in a democracy itself is basically of political foundation. The very idea that the judiciary is the ultimate interpreter of the constitution and the law is not a self-evident truth but a political arrangement. In democratic presidential systems, particularly of the American system that we copied, judicial supremacy exists largely because political actors – executive and legislative – have historically volunteered to cede interpretative authority to the courts, allowing them to assume the role of final arbiters of constitutional meaning. This voluntary surrender of interpretative power has been sustained by, and on the condition of, the judiciary’s ability to maintain public confidence in its impartiality, reasoned judgment and fidelity to justice.
5. However, this equilibrium is fragile, and certainly not sacrosanct. When courts repeatedly issue rulings that appear arbitrary, politically motivated or legally dubious, the foundation of this judicial supremacy becomes precarious, and threatened. A judiciary that oversteps its bounds or consistently delivers judgments that defy legal logic risks eroding the very deference upon which its authority rests. If judges become political actors in robes, then the logic of their supremacy collapses, inviting a political response that could diminish their interpretative monopoly.
6. It therefore becomes the right of citizens to look for an alternative to judicial supremacy. Taking cue from the United States, alternative to judicial supremacy is departmentalism, a constitutional doctrine championed by Thomas Jefferson, the third president of the United States. Jefferson rejected the idea that the courts alone had exclusive authority to interpret the constitution and the law. Instead, he argued that each branch of government – the executive, legislature and judiciary – should independently interpret the constitution as it applies to its functions.
7. Under departmentalism, the President, Congress and the Courts all have equal authority to determine what the law means within their spheres of influence. This doctrine maintains that courts may issue rulings, but their interpretations do not necessarily bind the executive or legislative branches beyond the particular cases at hand. While this approach has never gained traction to supplant judicial supremacy in the United States, it has still remained a recurring theme in American constitutional thought, resurfacing whenever the judiciary is perceived as overreaching. For instance, President FD Roosevelt also espoused the idea, leading to his bitter feud with the Supreme Court.
8. Given the troubling trend of judicial decisions in Nigeria today, might it be time to consider departmentalism as a safeguard against judicial excesses? The foundational argument for judicial supremacy is that it provides legal stability and prevents the executive and legislature from arbitrarily shaping the law to suit their interests. But what happens when it is the judiciary itself that subverts the law, bending it to political interests or delivering rulings that are manifestly unjust and illogical?
9. Judicial supremacy in Nigeria is sustained by two pillars: (1) the belief that courts are neutral arbiters, and (2) the willingness of political actors to abide by judicial interpretations. If either pillar weakens, the system automatically faces crises of legitimacy.
10. The aforementioned judgments by the Supreme Court, and those in my book, which many perceive as legally unsound or politically motivated, are already testing these foundations. If this trend continues, Nigerian politicians and legal scholars must begin to seriously explore departmentalism as a viable counterweight. The judiciary’s authority, after all, is not self-enforcing; it exists only so long as the political system accepts its decisions as legitimate. If public trust in the courts deteriorates beyond a certain threshold, calls for judicial reform – or even a fundamental restructuring of constitutional interpretation – should very well start gaining momentum.
11. Lately, the situation in the United States demonstrates how judicial supremacy can be challenged when the judiciary is perceived as an extension of political interests. President Trump’s repeated attacks on the U.S. legal system, particularly on Supreme Court rulings he viewed as biased, have fueled broader skepticism about the neutrality of the judiciary. This skepticism, on his return to power, is now translating into a more pronounced debate over the limits of judicial power in a democratic system.
12. The time has come for an intellectual and political debate on the efficacy, desirability or otherwise of judicial supremacy in Nigeria’s presidential democracy. Should judges have the final say in interpreting the constitution, even when their rulings contradict the spirit of democracy, public interest or common sense? Or should constitutional interpretation be a shared function among all branches of government, as departmentalism suggests?
13. If the judiciary continues to issue questionable rulings without accountability, Nigeria’s political actors are duty bound to re-evaluate the balance of power in constitutional interpretation. The consequences of such a shift could be profound, altering the very structure of Nigeria’s democracy. The judiciary must hence recognize that its authority is not absolute but contingent upon its ability to uphold the law fairly, speedily, consistently and independently.
14. A legal system that prioritizes power over principle is unsustainable. If decisions of the Nigerian courts continue to undermine public confidence, Nigeria may find itself at a constitutional crossroads, where the Jeffersonian school of thought should gain prominence and surface as a counterbalance to an increasingly unaccountable judiciary.
15. The debate is overdue.
