The Nigerian Judiciary and Democracy

Adrian Osuagwu
Obinne Oguejiofor
Sylvester Anya
Abstract
To the uncritical mind, it seems that the executive arm of government is the most powerful. However, this is not so in
constitutional democracy, as the judiciary in such arrangement seems to be the most powerful. This position becomes
clearer when one considers the functions of the judiciary which include, but is not limited to the resolution of disputes
between all parties appearing before her, the executive and legislature inclusive. Thus, a judiciary that is independent
and impartial is the backbone of any democracy. Recently, the Nigerian judiciary has come under public scrutiny. The
objective of the study is to ascertain the way in which the Nigerian judiciary can become a beacon of democracy and
the last hope of the common man. The methodology is doctrinal. Data are gathered from statutes, case-law, journal
articles, books, theses, internet sources etc. The study finds that there is a serious trust deficit on the Nigerian judiciary,
as it seems the independence of the judiciary is grossly affected. The study recommends that the judiciary should be
above board, proactive and always endeavour to seek the truth so as to deliver substantial justice to all parties appearing
before the court.
Key words: Constitutional democracy, judiciary, rule of law, judicial independence, justice delivery,
citizens’ right to choose their leaders.
1. Introduction
The conduct of the 2023 general elections in Nigeria and the eventual decisions of the court on the
outcome of the election raised echoes of constitutional democracy becoming a theatre of
brigandage. There was a significant interest of the Nigerian citizens in participating in the electoral
process that ushered in the current administration. It is assumed that many citizens especially the
youths came out to exercise their franchise. This awakened interest may be attributed to the
numerous assurances given by Independent National Electoral Commission (INEC) which include
but not limited to the use of Bimodal Voter Accreditation System (BVAS) and electronic transfer
of results in real time. However, it is certain that such promises made by INEC based on its own
guidelines and regulations1 were flagrantly disobeyed. Indeed, they were observed more in breach
than in compliance.2
In spite of the disappointment of the electorates and indeed the citizenry, a large premium of hope
was placed on the Nigerian judiciary to live up to her role as the last hope of the common man so
as to uphold the constitution, protect the votes of the electorates and in fact, protect Nigeria’s
democracy. This constitutional role and obligation placed on the judiciary especially the duty to
give free and fair judgment (substantial justice) has been gravely affected by numerous alleged
cases or instances of corruption. Can one say that the Nigerian judiciary is truly independent and
impartial? Or has the judiciary become an appendage of the politicians to the extent that it is a
willing tool to the other branches of government? Have the independence and impartiality of the
judiciary been grossly eroded?


Adrian Osuagwu, Lecturer, Department o International and Comparative Law, Faculty of Law, University of
Nigeria Enugu Campus.

Obinne Oguejiofor, Lecturer, Department of International and Comparative Law, Faculty of Law, University of
Nigeria Enugu Campus.

Sylvester Anya, Senior Lecturer, Department of International and Comparative Law, Faculty of Law, University
of Nigeria Enugu Campus. E-mail: [email protected], Phone number: 07064561418.
1
See Paragraph 38 of the INEC Regulations and Guidelines for the Conduct of Elections, 2022 made pursuant to s 65
and other sections of the Electoral Act 2022.
2
Note that the Constitutional of the Federal Republic of Nigeria (CFRN) 1999 as amended, the Electoral Act 2022
and the INEC Regulation and Guidelines form the Electoral Legal Framework of Nigeria.

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This paper reveals that there is a serious confidence or trust deficit on the Nigerian judiciary as
presently constituted. Thus, the paper recommends, among other things that: the judiciary should
do all it can to salvage that noble institution, endeavour to seek the truth so as to salvage Nigeria’s
democracy and halt further decay of the Nigerian society. Since the title of the paper is on the
Nigerian judiciary and democracy, it is important to clarify some concepts.
2. Democracy
The word ‘democracy’ is derived from two Greek words namely: demos, deme, which means the
people and kratein, meaning to rule. Joined together, these two words mean rule of the people. 3 It
was therefore Abraham Lincoln, who, while reflecting on these two words, gave the popular
definition of democracy, as the government of the people, by the people, and for the people.4
Therefore in democracy, the supreme power is vested or domiciled in the people.5 Such supreme
power otherwise known as sovereignty is exercised by the medium of representation which usually
involves periodic free and fair elections.6
Democracy is thus, a type of government just as monarchy, oligarchy and plutocracy are forms of
government.7 However, there are differences.8 In oligarchy, it is the oligos (few) that rules. In
plutocracy, it is the plutos, that is the rich that rules. In monarchy, it is the monos that rules (the
rule of one man). But in democracy, the demos (the people) rule. This is why it is called the
government of the people.9 In other words, the distinguishing factor between democracy and these
other forms of government is: who rules and for whose benefit?10 In democracy, the answer to both
questions is the people.11 In a democratic government, the people rule and they are the primary
beneficiaries of such government.
Democracy presupposes certain hypotheses or beliefs such as rationality, representation, law,
freedom, human rights, human equality, morality and so forth.12 Rationality alludes to the fact that
man’s actions are guided by reason. Thus, his actions are not whimsical and capricious.13
Democracy consecrates the belief that all men are equal before the law. Hence, both the person
who governs and the governed are equal before the law and none should have undue advantage
over the other.14 Equality before the law is one of the connotations of the concept of the rule of
law. For Dicey the rule of law means:

3
T Okere, Philosophy, Culture and Society in Africa (Nsukka: Afro Orbis Publications Ltd, 2005) 195.
4
Ibid.
5
Mariam Webster, ‘Democracy’<https://www.mariamwebster.com/dictionary/democracy> accessed 28 November
2024.
6
Ibid; see also section 14(2) (a) of the CFRN which states that ‘sovereignty belongs to the people of Nigeria from
whom government through this constitution derives all its power and authority’.
7
J Omeregbe, Social Political Philosophy and International Relations (Lagos: JERD Ltd 2002) 31; A Osuagwu,
‘Natural Law and Democracy’ in GA Onuoha and others, Perspectives in Democracy, Rule of Law and
Globalization (Aba: Falcon Publishing Co 2010) 54, 61; J Obi Oguejiofor (ed), Okere in His Own Words: The
Hermeneutics of Culture, Religion and Society (Vol. II, Owerri: Whelan Research Academy) 212.
8
Ibid.
9
Ibid.
10
Ibid.
11
Ibid.
12
Ibid 212-213.
13
Ibid 212.
14
Mary-Imelda Obianuju Nwogu, ‘The Rule of Law in Governance in Nigeria’ (2010) Journal of International Law
and Jurisprudence https://www.ajol.info/index.php/naujilj/article/view/131978/127762 accessed 26 November
2023.

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Equality before the law or the equal subjugation of all classes to the ordinary law
of the land, administered by the ordinary law courts, the rule of law in this sense
excludes the idea of any exemption of officials or others from the duty of obedience
to the law which governs other citizens from jurisdictions of ordinary tribunals.15
In other words, equality before the law implies that every citizen has equal right of protection
before the law and that each citizen has equal right to resist any infraction either to his person or
to his property.16 This right to equal protection to one’s person and his property is achievable only
when there is an independent judiciary, free from the shackles and interference of the executive
and legislative branches of government.17
The assumption of representation implies that though democracy is the rule of people, the people
do not all come together to rule unless the country in question has a very small population. The
nations with huge populations rule themselves through representations that make constant
elections imperative in a democracy. This enables the people either to renew or withdraw their
mandate.18 Further, democracy which is the rule of the people does not imply that the rule is at the
whims and caprice of the people. It means the rule of the people through the instrumentality of the
law.19 Thus, one of the functions of law is the maintenance of order in the society. The absence of
law or the flagrant disobedience of law brings about anarchy in the society. 20 Accordingly, the
absence of law leads to societal disorder.
Democracy also entails freedom and respect or recognition of basic human rights and fundamental
freedoms.21 To the extent that these basic rights and fundamental freedom are entrenched in the
constitution of any given country, they are therefore regarded as fundamental human rights and
freedoms.22 However, such freedoms and human rights are not absolute. The freedom of A is
limited by that of B. For according to Jean Jacques Rousseau, though man is born free, at the same
time he is always in chains.23 In Nigeria for instance, human rights are not absolute as they can be
restricted, limited or even derogated by any law that is reasonably justifiable in a democratic
society.24 The law can therefore place or impose certain limitations on human rights since it is
evidently true that one person’s right stops where another person’s rights begin.25 Without such
limitations, there will be chaos and disorder in the society. Though these rights are sacrosanct, to
the effect that they must be respected and cannot be derogated without recourse to due process of
the law;26 they are never absolute.27 God, the creator of the universe did not give Adam and Eve,
15
AV Dicey, Introduction to the Study of the Constitution in Nwogu (n 13).
16
B O Igwenyi, Modern Constitutional Law in Nwogu (n 13); see also Shugaba v Minister of Internal Affairs (1981)
INCLR 125.
17
Nwogu (n 14).
18
Oguejiofor (ed) (n 7) 213; Olusecan Olugbenga Orimogunle, ‘A Gaint Tottering at Fifty: Electoral Integrity as the
Basis for Democracy in Nigeria’s Fouth Republic’ in GA Onuoha and others (ed) (n 7) 100.
19
Oguejifor (n 7) 213.
20
Ibid.
21
Ibid.
22
See Chapter IV of the 1999 CFRN (as amended) that embodies the fundamental rights of the citizens. These
fundamental human rights and freedoms include, the right to life, human dignity, personal liberty, fair hearing,
freedom of movement, right to freedom from discrimination etc.
23
LR Curzon, Jurisprudence (Cavendish Publication Limited 1995) 31.
24
Section 45(1) (n 21); Amoshina v State (2009) SC 283.
25
Olasupa Jubril Adedimeji, Constitutionality of the Restriction of Fundamental Rights
<http://dx.doi.org/10.2139/ssrn.3658657> assessed 30 November 20234.
26
Ibid.
27
Ibid.

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absolute rights and freedom when He placed them in the Garden of Eden. He told them to eat every
fruit except the one placed at the center of the garden. Disobedience to this restriction attracts the
penalty of death.28
Under the Nigerian Constitution, human rights and fundamental freedom could be restricted in the
interest of defence, public safety, public order, public mortality, or public health; or for the purpose
of protecting the right and freedom of other persons.29 Thus, arbitrary derogation of these rights
and freedom is an affront to democratic principles. The inclusion of morality in the practice of
democracy shows that man, as a moral being, is constantly aware of right and wrong. 30 He is also
conscious of the rights of his neigbour.31 This constant awareness therefore serves to tame his own
excesses and is indeed a veritable tool or instrument in checking and balancing his selfishness. 32
From the foregoing survey of the meaning of democracy, the following features of democracy
could be distilled. Democracy is all about the rule of law as opposed to the rule of men. In
democracy, power belongs to the people and resides in them. Sovereignty does not reside in the
leaders but it is domiciled in the people and through the doctrine of social contract as enunciated
by Locke and Rousseau, they donate power and authority to their leaders who must always
endevour to protect their rights.33 In a democracy, the people rule through their representatives
brought about through periodic elections which must be free and fair. Hence, the incumbent
government should not interfere with the campaigns of other political parties,34 and the government
does not force the electorates to vote in a particular way. 35 Though democracy admits of majority
rule, the rights of the minority are equally protected.36 Democratic governance triggers an
interesting feature of checks and balances. Thus, in democracies, power is never centered on one
arm of government. The legislative, executive and judicial powers are distributed and allocated to
different arms of government and each branch has some degree of direct control over the exercise
of the functions of the other branches, although in a limited form. 37 In the Nigerian constitutional
democracy for instance, there are three arms of government namely; the legislature, the executive
and the judiciary. The legislative powers of the Federal Republic of Nigeria are vested in the
National Assembly made up of the Senate and House of Representatives.38 The legislature is
empowered to make laws, for the Federation or any part therefore.39 The executive powers of the
Federation are vested in the President and may be exercised by him directly or through officers in
the public service of the Federation.40 The judicial powers are vested in the courts.41 The courts

28
Genesis 3: 1- 19.
29
Adedimeji (n 25); see also s 45(1)(a) and (b) of CFRN 1999 (as amended).
30
Oguejiofor (n 7) 212.
31
Ibid.
32
Ibid.
33
Curzon (n 23) 28-33.
34
B O Igwenyi, ‘Democracy in the Fourth Republic of Nigeria: A Critical Appraisal’ in GA Onuoha and others (eds)
Perspectives in Democracy, Rule of Law and Globalization (Aba: Falcon Publishing Co 2010) 120, 122.
35
Ibid.
36
Ibid 127.
37
Liyange v The Queen (1957) AC 259; Lakanmi & Anor v Attorney-General (Western State of Nigeria) (1971) UILR
201.
38
Section 4 of the 1999 CFRN (as amended); see also section 4(6-7) of the 1999 CFRN (as amended) for the
corresponding legislature powers of the state.
39
Section 4(2) Ibid.
40
Section 5 (1) (a) Ibid; see section 5(2) ibid for the executive powers of the state.
41
Section 6(1) and (2) Ibid.

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and the people who administer them especially the judges are termed the judiciary.42 The point has
been made that all the assumptions and features of democracy are realizable when there is in place,
an independent, incorruptible, and impartial judiciary. The process that produces the personnel of
the judiciary must be credible.
3. The Nexus between the Judiciary and Constitutional Democracy
Constitutional democracy has been described as a form of democratic government that makes use
of a written document which may be regarded as a constitution that embodies the law of a nation.43
In constitutional democracy the belief in the principle of the rule of law is sacrosanct. 44 For AV
Dicey, the rule of law embodies mainly three principles namely: supremacy of law which simply
states that government officials must govern by following the law, rather than employing unlimited
discretion. Thus, the running of the government must be based on the principle of law and not of
man.45 The term ‘rule of law’ means equality before the law and subjection of all persons both the
government officials and governed to the laws of the law as administered by the courts of the land.
In other words, every citizen is equal before the law and is therefore under the law of the land and
amenable to the jurisdiction of the law.46
The attribute of the rule of law relates to the predominance of the legal spirit. It connotes the
admission that the constitution is the reflection of the laws of the land, hence the basic rights and
fundamental freedom enshrined in it are not created by the constitution but predate the constitution.
Their inclusion in such a document serves as a protection of those rights and gives them the force
of law.47 Constitutional democracy is therefore a form of regime that is basically founded on the
principle of self-government which is not only realized by the formation of governments through
the organization of elections48 but making sure that institutional frameworks are put in place that
guarantee periodic free and fair elections, and the respect and protection of human rights. 49 Added
to this is that, such institutional frameworks are energized by the constitution that provides the

42
Vocabulary.com, ‘Judiciary’<https://www.vacabulary.com/dictionary/judicary> assessed 30 November 2024.
43
Julieanne Klein, ‘Constitutional Democracy’<https://study.com/academy/lesson/constitutionaldemocracy-origins-
principles-governmentltml> accessed 2 December 2024.
44
Constitutional Rights Foundation, ‘What is Constitutional Democracy?’ https://www.crf-
usa.org/images/pdf/challenge/What-is-constitutional-Democracy.pdf> accessed 2 December 2023; Encyclopedia
Britannica, ‘Albert Venn Dicey’<https://www.brtannica.com/biograpy/Albert-Venn-Dicey> accessed 2 December
2024.
45
Dylan Lino, ‘The Rule of Law and the Rule of Empire: AV Dicey in Imperial Context’ (2018) 81 Modern Law
Review https://ssrn.com/abstract=342056> accessed 2 December 2023; Nicholas Ebehiakhalu, ‘The Rule of Law
and Constitutional Democracy in Nigeria’ Thisday (Lagos 2 December 2023)
<https://www.thisdaylive.com/index.plp/2022/11/07/the-rule-of-law-and-constitutional-democracy-in-nigeria>
assessed 2 December 2024.
46
Ibid; see also Alok Kumar, ‘Rule of Law’ (2017) 4(3) International Journal of Law and Legal Jurisprudence Studies
<https://ijlljs.in/wp-content/apluadi/2017/08/Rule-of-law.pdf> accessed 2 December 2024.
47
Ibid; see also the view of the Chief Justice of Japan that: ‘Fundamental human rights were not created by the state
but are external and universal institutions, common to all mankind and predate the state, and founded upon natural
law’; See (1977) 10 JAL No 2, 131 in MC Anozie, Notes on Nigerian Constitutional Law (Enugu: Pymonak Priting
and Publishing Co 2000) 176.
48
Martin Coughin, The Contemporary Crisis of Constitutional Democracy (2019) 39 (2) Oxford Journal of Legal
Studies <https://www./seiaciuk/law/assets/documents/martin-loughlin/crisis-of-con-dem-OJLS.pdf> accessed 3
December 2024.
49
Ibid.

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branches of government with the attendant checks and balance necessary for a democratic
society.50
Nigeria arguably claims the practice of democracy. However, as far as the CFRN 1999 is
concerned, Nigeria is a democratic country. Section 14(1) of the CFRN 1999 states that ‘Nigeria
is a democratic state standing on the foundation of social justice’. For Ebehikhalu, constitutional
democracy is measured by the separation of powers of the three arms of government with the
attendant checks and balances, independent electoral empires, independent media known as the
fourth estate of the realm, respect of basic human rights and fundamental freedom, free and fair
election and so forth.51
From the forgoing, it is eminently evident that the judiciary plays a pivotal role in sustaining
democracy in any given country. Thus, the concept ‘constitutional democracy’ indicates the role
of the judiciary in democratic governance. The roles of the judiciary in democratic governance
have received elaborate treatment by Tobi-Aiyemo.52 According to him, the judiciary plays
significant roles in any given democracy such as Nigeria. These roles include the interpretative
role, adjudicatory role, democratic role, constitutional role, social role, social order role etc.53
Because of spatio-temporal determinisms we shall briefly elaborate on some of these roles.
The primary role of the judiciary is to adjudicate.54 The adjudicatory role of the judiciary
exemplifies the meaning of the name ‘judge’55 given to various judges of the superior courts of
records. Thus, to adjudicate means to judge a matter and this implies dispute settlement. 56 The
power of the Nigerian judiciary to adjudicate on matters before it is derived from the
Constitution.57 Section 6(6)(b) of the 1999 CFRN (as amended) provides that the powers of the
judiciary:
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.58
The implication of the above constitutional provisions is that the judiciary acts as an umpire, judge
or arbitrator between disputants or parties to a dispute.59 Its role is the determination and settlement

50
Ibid.
51
Ebehikhalu (n 46).
52
Ari Tobi-Aiyemo, ‘The Role of the Nigerian Judiciary in a Democracy: A Judge’s Dilemma’ (PhD thesis, University
of Nevada Reno 2021).
53
Ibid.
54
Enaruna Edosa and Ernest O Fenemigbo, ‘The Judiciary as an Organ of Government’ (2014) 8(3) African Research
Review < http://dx.doi.org/10.4314/afrrev.v8i3.7> accessed 4 December 2024.
55
Tobi-Ayemo (n 45).
56
Ibid.
57
S 6 of the CFRN 1999 (as amended); see also Chief Ken Nnamani v Chief Nnaji (1999) LPELR-6575 (CA), where
the court emphasized the adjudicatory role of the judiciary.
58
S 6(6) (b) ibid.
59
Hon Justice BA Adejumo, ‘The Judiciary and the Rule of Law. Challenges of Adjudication in the Electoral Process’
(A paper presented at 2011 Law week of the Law students’ Association of the University of Abuja on 23 May 2011)
<http://nicn.gov.ng/publication/UNIABUJA%20LAW%20STUDENTS%20<LECTURE.PDF> accessed 4
December 2024.

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of disputes, determination of rights and obligations of parties that present cases before it with the
aim of bringing about peace, order, harmony, progress and democratic stability. 60
Another role of the judiciary is the interpretation of statutes. The interpretative role of the judiciary
complements the adjudicative role61 in the sense that they go hand in hand.62 Hence, once a matter
comes up before the judiciary, the true meaning of the law becomes apparent.63 The determination
of the true meaning of the law brings forth the principle of judicial precedent which affects future
court decisions.64 In this way, the judges are involved in law-making through statutory
interpretation and the doctrine of judicial precedent.65 In other words, whatever meaning might be
the intention of the law maker in drafting a particular law, it is only the meaning attached to the
words of such statute by the courts that becomes the law. 66
In interpreting statutes, the courts make use of the following canons of interpretation which
include, the literal rule, the golden rule, the mischief rule, purposive rule, ejusdem generis rule,
contra proferentem rule, expressio unis est exclusio alterius rule, the blue pencil rule etc. In its
interpretative role, the primary aim of the judiciary is the attainment of justice to all the parties
before it. Hence, justice must be done even if the heavens may fall. All the canons of interpretation
are geared towards the arrival of substantial justice which is the aim of judicial activism, as
opposed to formal justice. Formal justice or what has come to be known as technical justice should
never displace substantial justice. In other words, substantial justice must never be sacrificed at the
altar of technicalities. For Justice Olabanji Orilonishe:
The days of justice by technicalities, which is as bad as injustice are over because
the weight of judicial authorities have shifted from undue reliance on technicalities
to doing substantial justice even-handed on parties in a case. Justice by
technicalities has died in Nigeria for good and has been buried; the trend these
days is to do substantial justice by the merit of each case.67
The above statement can only come from a judiciary that is independent and responsive to the
needs of the society.68 The democratic role of the judiciary is one of the consequences of
constitutional democracy. Thus, in this form of government, the courts play a vital role in the
arbitration and protection of the rights of citizens.69 In so doing the judiciary advances democratic
governance by making sure that no one is above the law and that any abuse of power is
checkmated.70 In sum, the democratic role of the judiciary is the defence of the principles of
democracy and the rights of the citizens.71 As regards the former, such principles includes, fairness,
equality, free speech, representative government, separation of powers, checks and balance,

60
Ibid.
61
Tobi-Aiyemo (n 53).
62
Edosa and Fenemigho (n 55).
63
Ibid.
64
Ibid.
65
Ibid.
66
Obi Okoye, Law in Practice in Nigeria Professional Responsibilities and Lawyering Skills (Enugu: Snapp Press Nig
Ltd 2011) 375.
67
Quoted by Edvsa and Fenenigbo (n 55).
68
Ibid.
69
Ebun-Olu Adegboruwa, ‘Role of the Judiciary in Development of Democracy’ The Guardian (Lagos, 3 April 2023)
https://guardian.ng/opinion/role-of-judiciary-in-development-of-democracy accessed 4 December 2024.
70
Ibid.
71
Tobi-Aiyemo (n 53).

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independence of the judiciary, and rule of law. 72 The latter refers to the basic human rights as
stated in the constitution.73 For the judiciary to play these roles creditably and effectively it must
be seen to be truly independent.
4. The Independence of the Judiciary
Judicial independence has its jurisprudential foundation in the doctrine of separation of powers.74
The modern form of this doctrine was formulated by Baron de Montesquieu when he declares that:
When the legislative and executive powers are united in the same person, or in the
same body or Magistrate, there can be no liberty. Again there is no liberty if the
judicial power is not separated from the legislature and executive power. Where it
is joined with the legislative power, life and liberty of the subject would be exposed
to arbitrary control, for the judge would then be the legislator. Where it is joined
to the executive power, the judge might behave with violence and oppression. There
would be an end of everything were the same man or the same body to exercise
these three powers.75
The doctrine of separation of powers as understood by Montesquieu contemplates a democratic
setting where the legislature lays down general rules, the judiciary settles disputes between parties
by making binding decisions,76 and the executive carries out the business of administering the
government.77 In other words, the legislature makes, the executive administers, while the judiciary
interprets the law.78 The CFRN 1999 embodies the principle of separation of powers 79 and by
implication, secures, in theory the independence of the judiciary. Section 36(1) of the CFRN 1999
provides that the court should be constituted in such a way as to secure its independence and
impartiality. Again the CFRN 1999 makes it clear that the judges are bound only by Constitution
and the law.80 Judicial independence means that judges freely decide cases brought before them
based on the facts of the cases and their understanding of the law; 81 thus, a judge shall not bow to
external pressures, improper influences and inducements.82 It also means that the judiciary is
independent of the other branches of government and has the power to decide all issues of a judicial
nature.83
Accordingly, there are two components of judicial independence namely: personal independence
and institutional independence.84 The former means that the judge is free from external pressures;
he has no other master apart from the law and must always act without depending on another. 85

72
Ibid.
73
Chapter IV of the CRFN 1999 (as amended).
74
AA Olatunji, ‘Securing the Independence of the Judiciary’ The Guardian (Lagos, 31 January 2023).
75
Montesquieu, De L’ Espirit des lois, 1748 quoted in TB Singh, ‘Principle of Separation of Powers and Concentration
of Authority’ <https://ijtr.nic.in/articles/art35pdf> accessed 5 December 20234. Note that Montesquieu’s doctrine
is not a postulation of impassable barriers and impenetrable frontiers, but one of mutual restraints that came to be
known as the principle of checks and balances. See ibid.
76
GW Paton, A Text Book of Jurisprudence (4th edn, Oxford University Press 1972) 330.
77
Ibid.
78
Ibid.
79
Ss 4, 5 and 6 of the 1999 CFRN (as amended).
80
See Judicial Oath as contained in the Seventh Schedule of the CFRN 1999 (as amended).
81
Aharon Barak, The Judge in a Democracy (Pinceton University Press 2006) 77.
82
Ibid.
83
Ibid 78.
84
Ibid.
85
Ibid.

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The later implies that there is a protective wall built around each individual judge, preventing
influences from the other branches of government except the usual constitutional imperative of
checks and balances.86 These two components are cumulative.87
The imperative of judicial independence is so central to the sustenance of democracy and the
continued survival of an ordered society.88 The true beneficiaries of judicial independence are the
citizens and not necessarily the judges themselves.89 Hence, the fundamental human rights and
basic freedom enshrined in the constitution are meaningless and a mere sham unless such rights
are guaranteed to them by an independent and impartial judiciary. In the view of Barak, judicial
independence is a central feature of any democratic culture and is pivotal to the rule of law,
separation of powers and, human rights.90 Currently, it is a notorious fact that the Nigeria judiciary
is battling in trembled waters. The perception of the citizens is that the judiciary has been hijacked
by itself, the politicians, the legislature and the executive alike. These challenges are discussed in
the next segment.
5. Public Perception of the Nigerian Judiciary
A comprehensive analysis of the activities of the Nigerian judiciary is beyond the scope of this
paper. However, it seems safe to say that, since independence the Nigeria judiciary has done
substantial justice even in the face of tyranny and undemocratic rule.91 For instance the Nigerian
judiciary has arguably aided in the promotion of human rights and by extension, the development
of the basic assumption and features of democracy.92
In spite of this positive perception of the judiciary in Nigeria, that arm of government has got its
legs in the public fire. Thus, after the conclusion of the 2023 general elections, a hashtag emerged
and it was titled ‘All Eyes on the Judiciary’. This hashtag was fueled by the series of allegations
against the Chief Justice of the Federation, Olukayode Ariwoola. The substance of these
allegations is that the Chief Justice was seen disguised in a wheel chair in London in order to have
a meeting with Bola Ahmed Tinubu, the acclaimed winner of the 2023 presidential election.
However, this was debunked by the spokesperson of the Supreme Court.93 The above allegation
coupled with others, made Atiku Abubakar, the presidential candidate of the Peoples’ Democratic
Party (PDP) to raise alarm on how the All Progressives Congress (APC)-led Federal Government
and Tinubu are determined to influence the decision of the court in their favour.94 He also made
allusion to the removal of the former Chief Justice of Nigeria, then Justice Walter Onnoghen by
the APC- led government in 2019, when they perceived he was not ready to do their bidding.95
This made Atiku therefore to conclude that:

86
Ibid 80.
87
Ibid 78.
88
Murtala Aminu, ‘Judicial Powers and Its Independence’ in MM Gidado and others (eds.), Nigeria Beyond 1999:
Stabilizing the Polity through Constitutional Re-engineering (Enugu: Chenglo Limited 2004) 119.
89
Ibid.
90
Barak (n 82) 76.
91
Adegboruwa (n 69).
92
Ibid.
93
Louis Achi ‘Judiciary: Is Democracy under Threat?’ This Day (Lagos, 7 July 2023)
https://www.thisdayhive.com/index.php/2023/07/30/judiciay-is-democracy-under-threat accessed 9 December
2023.
94
Ibid.
95
Ibid.

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The plot of the APC is simple: intimidate the judiciary, threaten the judges with
arrest so that they will bow to their will. This is a playbook from 2019 when they
removed CJN and then replaced him with Tanko Muhammad who himself was later
accused of corruption by his colleagues at the Supreme Court and he resigned
shamefully.96
Such allegations and indeed public perception of the judiciary in Nigeria coupled with some other
events like the cases of Senator Hope Uzodimma & Anor v Rt Hon Emeka Ihedioha and 2 Ors,97
All Progressive Congress v Bashir Machina and Ors, 98 and All Progressive Congress v Udom
Ekpoudom99 have really brought the Nigeria judiciary in the eyes of the storm. For the ordinary
citizens for whom the judiciary should be their last hope, that arm of government is seen as being
corrupt, kidnapped by the politicians, lacking in independence, impartiality and infected with trust
and confidence deficits among other vices. A detailed review of this perception follows below.
5.1 A Corrupt Judiciary
For Olatunji, the ‘Nigerian judiciary is at crossroads, and has been unable to cross the ‘Red Sea’
of corruption’.100 The word corruption is derived from the Latin word ‘corruptus’ which means to
abuse or destroy. Thus, corruption is the state of being or becoming decayed, deteriorating or
spoiling.101 The Black’s Law Dictionary defines corruption as ‘The act of doing something with an
intent to give some advantage inconsistent with official duty and the rights of others, a fiduciary’s or
official’s use of a station or office to procure some benefit either personally or for someone else contrary to
the rights of others’.102 Therefore, corruption is a type of behaviour which is inconsistent with one’s
normal duties as a public official due to personal interest. Such private interests include certain
pattern of behaviours such as bribery, nepotism, misappropriation of public funds and so forth.103
The judicial arm of government for a long time has been drawn into this social menace of
corruption and has been ‘deeply engrossed in excessive acts of corruption, impropriety and
mismanagement of public fund.104 The depth of corruption in the Nigerian judiciary is summed up

96
See statement made by Atiku Abubakar in Tunde Opalana, PEPC: Atiku raises Alarm of Alleged Sinister Plot by
APC to Intimidate Judiciary Daily Times 9 (Lagos), 23 July 2023 https://dailytimesng.com/pepc-atiku-raises-alarm-
of-alleged-sinister-plot-by-apct-to-intimidate-judiciary/ assessed 11 December 2023.
97
[2020] LPELR-50260 (SC) 1. It is difficult to see how the Supreme Court arrived at its decision to declare the
appellant, winner of the said election. This is because the total number of accredited votes by INEC is 823,743 while
the total number of votes allocated to each candidate at that election by the Supreme Court is 927,630. Common
sense would have prevailed in ordering for a re-run-
98
[2022] SC/CV/1689. See FA Nwodo, SN Anya, I Chime and CO Amucheazu, ‘All Progressives Congress v Bashir
Sheriff and Others: The Conflict between Legal Technicalities and Justice’ Journal of African Law (Accepted 18
April 2024) (2025), 1-10 Doi:10.1017/S0021855324000342, which finds that the decisions in this case and the one
that follows it were decisions based on technical justice rather than substantive justice.
99
(2022) SC/ CV/ 1476.
100
Olatunji (n 75).
101
The New Webster Dictionary of English Language (International Edition) 219 in Chukwunonso Okafọ, John Funsho
Olorunfeni and Adrian Osuagwu, ‘Analyzing the Effectiveness of Relevant Laws and Crime Control Theories in
the Fight against Corruption in Nigeria (46th Annual Conference of the Nigerian Association of Law Teachers, Ilorin
Nigeria, April 2013).
102
BA Garner (ed), Black’s Law Dictionary (7th edn, St Paul Minnestota: West Group 1999) 348.
103
J S Nye, ‘Corruption and Political Development: A Case Benefit Analysis’ in Okafọ, Olorunfemi and Osuagwu (n
102).
104
Wahab Egbewole and Ibrahim Imam, ‘Nigerian Judiciary and the Challenges of Corruption: Islamic Options as
Panacea’ (2015) I(1) Journal of Islam in Nigeria 84, 87.

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in a report titled ‘Nigerian Corruption Index: Report of a Pilot Survey’. 105 In that report, 901
respondents were surveyed. Out of this 901 respondents 638 (70.81%) were lawyers, 124 (13.76%)
were judges and 25 (2.77%) were court staff, while 114 respondents did not state their roles.106
The money involved in this judicial corruption could be categorized as money demanded, offered
or paid.107 Such demands were either made by judges or other court officials, while lawyers and
litigants paid bribes.108 Further, the report stated that the total sum of money corruptly demanded
by the justice sector and the actual amount offered and paid between 2018-2020 was nine billion,
four hundred and fifty seven million, six hundred and fifty thousand Naira only (₦9,457,
650,000.000).109 Finally the survey indicated that 78 of the 901 respondents in the justice sector
reported their personal experience in offers and payment of bribes to manipulate the judicial
process.110 Against the above background, the stench coming out from the quantum of corruption
in the judicial sector is mind-boggling.111 The damaging and destructive effect of a corrupt
judiciary was succinctly captured by justice Uwaifo in his valedictory speech. Thus, he declares:
A corrupt judge is more harmful to the society than a man who runs amok with a
dagger in a crowded street. He can be restrained physically. But a corrupt judge
deliberately destroys the moral foundation of society and causes incalculable
distress to individuals through abusing his office while still being referred to as
‘honourable’. It is difficult to bring him to account under our system.112
Accordingly, a corrupt judiciary is an affront to various international and regional human rights
instruments that are testamentary to the fundamental rights of everyone to due process of law which
includes the right to fair hearing by an independent and impartial arbiter, 113 and the procedural
equality of parties otherwise known as equality of arms.114 Judicial corruption adversely affects
the outcome of the judicial process, rendering judicial decisions unfair and unpredictable, while
making mockery of the rule of law.115 Once a judge is bribed or corrupted by the offer and
acceptance of monetary inducements, one of the elements of fair hearing, equality of arms is
vitiated.116 A judge who demands bribe from a litigant ceases to be independent, impartial and
fair.117 The one who has given bribe or the person who gives a bigger bribe assumes a privileged

105
The methodology was experience-based rather than perception-related question of corruption as measured from a
scale of 0 to 100, with 0 representing ‘Absolutely not corrupt and 100 indicating Absolutely corrupt’. See Kunle
Sanni, ‘At least 9.4bn paid as Bribes for Justice in Nigeria in Two year Premium Times (Abuja 26 December 2020
https://www.premiumtimes.com/news/headlines/433257-atleast-ng-4bn-paid-as-bribe-for-justice-in-nigeria-in-
two-years> assessed 11 December 2024.
106
Ibid.
107
Ibid.
108
Ibid.
109
Ibid.
110
Ibid.
111
Olatunji (n 75).
112
See excerpts from the 2004 valedictory speech of retired Justice Odemwengie culled from Vanguard (Lagos 2
December 2023 https://www.vangard.com/2023/12/may-the-s-court-never-become-an-undergrowth/ accessed 10
December 2024.
113
Egbewole and Imam (n 105) 89.
114
Ibid.
115
Ibid.
116
Ibid.
117
SB Lugard, ‘Judicial Corruption as a Self-Inflicted Impediment to the Independence of the Judiciary in Nigeria
(2017) 4 Kas African Law Study Library https://www.nomoselibrary.de/10.5771/2363-6262-2017-3-310.pdf?
download-full-pdf,= assessed 10 December 2024.

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position in relation to others who have not offered or who offered something less.118 The attainment
of the privileged status and the concomitant discriminatory tendency on the part of judicial sector
makes nonsense of objectivity and neutrality in the administration of justice.119 The whole process
becomes a sham, leaving the judiciary in a kidnapped state.
5.2 A Kidnapped Nigerian Judiciary
The Nigerian Corruption Index: Report of a plot survey which ranges from 2018-2020 placed the
Nigeria judiciary at the pinnacle of the Nigeria corruption index. This report was released by the
Independent Corrupt Practices and other related Offences Commission (ICPC).120 This report
shows that the Nigerian judiciary is grossly corrupt. A corrupt judiciary is a kidnaped judiciary.
The kidnapping of the Nigerian judiciary is both extraneous and self-inflicted. As regards the
former, the boldness or temerity with which politicians and the rich always shout ‘go to court’, is
indicative of the fact that the judiciary is at their beck and call. Thus, an East African proverb puts
it succinctly that when a criminal encourages you to approach the services of a court, be sure that
his relative is the arbiter. Such effrontery implies that the ‘criminal’ has the capacity and
wherewithal to influence and buy over the judge. Indeed, the judge is under his custody and payroll,
willing to do his bidding. His release is only possible on payment of a ransom which is the delivery
of a judgment that is favourable to him. This becomes ‘justice’ under the banner of trade by barter.
For Olumide Akpata, there is calculated attempt by the political class to capture the Nigerian
judiciary, and this plot is already yielding visible results.121 Such judicial capture by politicians has
devastating implications for the rule of law. Hence at the moment, there is almost a total trust
deficit in the Nigerian judiciary.122
As regards the kind of kidnap that is self-inflicted, it is a notorious fact that appointments into
sensitive judicial positions are based on biological or friendly relationships. In the words of Chidi
Odinkalu, appointments of judicial officers ‘has become a pattern of diversion and capture of high
judicial office in Nigeria by a mutually sustaining incest of political and judicial insiders, mostly
connected through bloodlines, personal favours or genital relations.123 Corroborating Odinkalu,
Itse Saga maintains that the relations especially sons and daughters of serving and retired judges
and justices are preferable candidates for sensitive judicial offices to other more qualified and
suitable candidates who have nobody of such status to support and back them.124 Thus, merit is
sacrificed at the altar of biological and genital relationship, leading to a judiciary lacking in
independence.125
5.3 A Judiciary Lacking in Independence
A corrupt and kidnapped judiciary can never be independent. For democracy in Nigeria to thrive,
the judiciary as an important element in constitutional democracy must be independent. The
independence of the judiciary is not negotiable in constitutional democracy and it is arguably the
118
Ibid.
119
Ibid.
120
Sanni (n 106).
121
Business Day Ng, ‘Olumide Akpata Enumerates Three-pronged Strategy to Decimate Nigerian
Judiciary’https://businessday.ng/news/legal/article/olumide-akpata-enmerates-three-pronged-strategy-to-decimate-
nigerian-judiciary assessed 11 December 2024.
122
Ibid.
123
C A Odinkalu, ‘A Captured Temple of Justice’ Premium Times (8 October 2023) https://www.premiustimesng.
com/opinion/631725-a-captured-temple-of-justice-by-chidi-anselm-odinkalu.hmtl assessed 11 December 2024.
124
Quoted by CA Odinkalu, ibid.
125
For a detailed account of appointment of judicial officials based on biological connections and other extraneous
factors rather than merit, see Odinkalu, ibid.

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most important element of the concept of the rule of law. 126 All other components of the rule of
law rest on judicial independence.127 Hence, equality before the law, access to justice, human rights
and predictability of the judicial process will have no meaning if the integrity of the court and its
power to settle disputes are compromised and jeopardized.128 At the risk of repetition, judicial
independence implies institutional independence and personal independence. The former implies
that the judicial arm of government must be run in an independent manner.129 Hence it must not
be on an extension of the executive branch, subject to the whims and caprices of the executive arm
of government.130
In Nigeria, the politicians are aware that the judges and not the electorate decide elections. This
realization has caused the politicians to start planting their daughters, wives and mistresses into
juicy judicial positions.131 The CFRN 1999 (as amended) has vested appointment of judicial
officers in the National Judicial Council (NJC).132 However, there is lack of clarity on the criteria
of such appointments aside the post-call qualification experience.133 This lack of clarity has
resulted to intense lobbying since the decision to nominate or not to nominate a person either for
appointment or promotion is whimsical and capricious.134 Based on this, most appointments are
not meritorious.135 Such appointments that are based on intense lobbying and power of connection
cannot produce judicial officers that are independent.136
With regard to personal independence, this implies independence from relatives and friends;
independence from litigating parties and the public; independence from fellow judges.137 A graphic
illustration or instance of lack of personal independence is the testimony of an outgoing senator of
the ninth National Assembly. During a valedictory session for the ninth National Assembly,
Senator Adamu Bulkachuwa made public how he influenced his wife, Justice Zainab Bulkachuwa
while serving as a judge and President of the Court of Appeal to dispense justice not according to
law and facts but based on favouritism.138 He equally admitted to have encroached on his wife’s
judicial independence so as to exploit the judicial process in favour of his friends and colleagues.139
With such revelations, one is not left in doubt as to what transpired in the numerous cases she
presided over and decided.140 This is the ‘Bulkachuwaisation’141 of the independence of the
Nigerian judiciary. This voluntary confession by the husband of the president of the Court of
126
Lugard (n 118).
127
Ibid.
128
Ibid.
129
Barak (n 82) 80.
130
Ibid.
131
CA Odinkalu, ‘The Untold Story of Nigeria’s Judiciary’ Business Day (Lagos, 24 November 2023)
https://businessdaysin/opinion/article/the-united-story-of-nigerias-judiciary-by-odinkalu assessed 11 December
2024.
132
See Art 20 of the Third Schedule of the CFRN 1999.
133
Lugard (n 118).
134
Ibid.
135
Ibid.
136
Ibid.
137
Barak (n 82) 78.
138
Ejiofor Alice and Wale Igbintade,’ Confession that Explodes Rot in Judiciary’ This Day (Lagos, 11 December
2023) https://www.thisdaylive.com/indexphp/2023/06/18/confession-that-exolveves-rot-judiciary assessed 11
December 2024.
139
Ibid.
140
Ibid.
141
Chiedu Okoye, ‘Bulkachuwaisation of our Judiciary and Nigeria’s Culture of Corruption’, VangaurdNewspapers
(Lagos, 29 June,2023)https://ww.vanguardngr.com Accessed on 11 December 2024.

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Appeal is testamentary to the fact that Nigeria’s judicial system is neither independent nor
impartial.142 It indicates that Nigeria’s temple of justice is populated with corrupt personnel.143
Thus, it is safe to conclude that the Nigerian judiciary has a trust and confidence deficit.
6. Conclusion
One of the important roles of the judiciary is the interpretation of statutes. In the performance of
this role, the judges intend to arrive at justice which must be done though the heavens may fall.
All the canons of interpretation therefore, are geared towards the attainment of substantial justice
which is the goal of judicial activism. Hence the judiciary is enjoined not to sacrifice substantial
justice at the altar of technicalities. Judges and justices do not live in isolation. They are members
of the society. In the resolution of disputes before them, judges must be abreast of the positive
values of the society in which they live even if these values are contrary to theirs. In this way
judges become witnesses to the truth as reflected in the society, thus promoting the social order.
As an important arm in a constitutional democracy, the judiciary should be populated with
personnel of high moral probity. The body responsible for the appointment and promotion of
judges which is the National Judicial Commission should make sure that such appointments and
promotions are merit-based. Any judge or justice or other support staff who falls below the
standard of what is permissible by law and code of conduct of judicial officers and other rules of
engagement should be adequately punished. This will go a long way to deter future offenders. The
judiciary as a matter of urgency should refrain from this new trend of usurping the right of the
electorates in choosing their leaders. Cancelation and allocation of votes to contestants should not
be part of the duty of the judiciary. Thus, it is recommended that the courts in most electoral cases
should order a re-run instead of declaring winners. This is the work of the electoral umpires subject
to the votes of the electorates.
In conclusion, constitutional democracy, as practiced in Nigeria, places the judiciary as an
important branch or arm of government. For democracy to thrive in Nigeria, the judiciary must not
be seen as an appendage to any arm of government. A vibrant, fearless, independent and
incorruptible judiciary that has no master except the law and facts is therefore a necessary
ingredient for a sound democracy. The personnel in that arm of government should, like Caesar’s
wife, be above board. The realization of all the assumptions and features of democracy such as
respect for human rights and fundamental freedoms, equality before the law, morality,
representative government, rule of law and so forth, are possible only with a judiciary that is
impartial and independent, and has little or no credibility and confidence deficit. Only in this sense
can the judiciary be the last hope of the common man.

142
Ibid.
143
Ibid.

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