{"id":11415,"date":"2025-05-27T00:15:00","date_gmt":"2025-05-27T00:15:00","guid":{"rendered":"https:\/\/edumarkng.com\/news\/the-judiciary-and-rule-of-law-2\/"},"modified":"2025-05-27T00:15:00","modified_gmt":"2025-05-27T00:15:00","slug":"the-judiciary-and-rule-of-law-2","status":"publish","type":"post","link":"https:\/\/edumarkng.com\/news\/the-judiciary-and-rule-of-law-2\/","title":{"rendered":"The judiciary and rule of law"},"content":{"rendered":"<div style=\"text-align:center\"><img decoding=\"async\" src=\"https:\/\/cdn.vanguardngr.com\/wp-content\/uploads\/2025\/05\/1748207096561blob-1.png\" class=\"attachment-post-thumbnail size-post-thumbnail wp-post-image\" alt=\"The judiciary and rule of law\" title=\"The judiciary and rule of law\" \/><\/div><p>The judiciary and rule of law, <\/p>\n<p>YESTERDAY<\/p>\n<p>The author laid the groundwork for his thesis that judges, whom he calls \u201cthe selectorate\u201d, have toppled the people in deciding who rules them. <\/p>\n<p>Today, he examines the concept of rule of law, the judiciary and their relationships to elective government, beginning with Albert Venn Dicey.<\/p>\n<p>By Chidi Anselm Odinkalu<\/p>\n<p>The Constitution\u2019s Design<\/p>\n<p>The usual fare is to begin every examination of the judiciary and rule of law in the Common Law world with an obligatory genuflection before the altar of Albert Venn Dicey and his Victorian notions of the rule of law. These were founded on benevolent notions of predictability and equality policed under an unwritten constitution by \u201cthe jurisdiction of the ordinary tribunals.\u201d Inherent in Dicey\u2019s concept of the rule of law is the idea of a judiciary whose effectiveness is essentially guaranteed by their notional independence, impartiality and predictability. Dicey\u2019s ideas were originally published in 1893 at the onset of the European occupation of Africa. The world that Dicey described and analysed, however, did not treat people of colour as humans, and the benevolence that he took for granted as a Caucasian was unknown to the interaction between his people and colonial subjects. This certainly was the case in Africa. For present purposes, therefore, an examination of the rule of law, the judiciary and their relationship to elective government is more usefully situated in the seminal distinction drawn by Ernst Fraenkel between the \u201cNormative State\u201d of credible institutions and rule constraint on the one hand and the \u201cPrerogative State\u201d of caprice on the other.\u201d<\/p>\n<p>Democratic process, as a rule-constrained system for the transfer and exercise of power in political society assumes the existence of what Ernst Fraenkel called the normative state of the rule of law, which he distinguished from the authoritarian prerogative state. The African Commission on Human and Peoples\u2019 Rights has similarly distinguished between a state with rule of law and judicial independence on the one hand, and the \u201crule of power, which is typically arbitrary, self-interested and Subject to influences which may have nothing to do with the applicable law\u2026,\u201d on the other. The state with the rule of law as described can only exist where there is a reasonably independent judiciary to arbitrate and interpret the norms applicable to the democratic process. It is possible, however, for courts to be instrumentalised in a manner that uses the appearance of a norm-constrained process to engineer into existence authoritarian conditions. In many African countries, this appears to be happening.<\/p>\n<p>To understand how this occurs, it is essential to stress that the role of the judiciary in the democratic process of electing government is a narrow one. As pointed out by the Supreme Court of India, the role of the courts is to oversee the validity of the electoral process in order to ensure that while the rules are certain, the outcomes of elections are uncertain or not predetermined until the votes of the people are cast and counted. The Universal Declaration of Human Rights guarantees the rights of democratic participation and to vote as the basis of legitimate government. To implement these, countries establish election management bodies (EMBs), which supervise and organise their elections and declare their outcomes. When elections occur in this manner, they ensure that democratic legitimacy resides with the people. The Supreme Court of the United States has rightly cautioned about \u201cthe vital limits on judicial authority\u201d concerning \u201cthe Constitution\u2019s design to leave the selection of the President to the people, through their legislatures, and to the political sphere.\u201d In Nigeria, the Electoral Reform Panel chaired by former Chief Justice, Lawal Uwais, similarly warned in 2008 that \u201ccare should be taken not to drag the judiciary into the political arena too often as this can affect its credibility.\u201d<\/p>\n<p>Elections are, therefore, globally accepted normatively as how the people choose who governs them but the quality of what counts for elections varies widely across the globe. This most consequential of decisions in most countries around the continent increasingly involves judges in varying degrees of intimacy, if not capture.\u201d Following the wave of democratisation around the continent in the 1990s, this role of the judiciary was largely seen in a positive light as a source of \u201chope.\u201d This verdict proved to be premature at best.<\/p>\n<p>Judges are supposed to be independent of politics. Yet, the assumption exists that they can continue to make the most consequential decisions in a democracy while retaining independence from external influence. Hakeem Yusuf strongly suggests that the immersion of the judiciary in political change \u201cseriously tasks the institutional integrity of the judiciary.\u201d<\/p>\n<p>This book argues that the immersion of judges in election dispute resolution around Africa endangers the judiciary, imperils the project of building independent institutions, and retrenches the will of the people as the foundation of legitimate government. It illustrates these triple crises with a narrative of how the immersion of Nigeria\u2019s judiciary in election dispute resolution has over time intensely altered the traditional assumptions that underpin the judicial function as we know it but first, it is important to explain why such an inquiry is essential.<\/p>\n<p>Judges, Democracy and Elections<\/p>\n<p>\u00a0The judicial function is now globally accepted as foundational to the role of the state and essential to Iegitimate government but its delimitation is underpinned by both fluidity and contradiction.\u201d Notionally, the judiciary embodies the very essence of what has been described in constitutional design as \u201cpolitically neutral zones.\u201d At the African continental level, State parties to the African Charter on Democracy, Elections, and Governance (ACDEG) undertake to \u201cestablish and strengthen national mechanisms that redress election-related disputes promptly.\u201d They also agree to \u201cstrive to institutionalise good political governance through an independent judiciary.\u201d In the African Charter on Human and Peoples\u2019 Rights, they equally subscribe to a \u201cduty to guarantee the independence of the courts.\u201d<\/p>\n<p>But what does an independent judiciary entail? Ordinarily, it imports structural and institutional assumptions that recognise the judiciary as an arm of government in a scheme of separation of powers coexisting in juxtaposition with the legislative and executive branches but free from interference or manipulation from the latter two.\u201d To assure this, formal standards of judicial independence are recognised internationally,\u201d and instituted in the constitutions of different countries, addressing such issues as processes of appointment; security of tenure, discipline and removal; remuneration; and preclusion of reprisals or liability for exercise of judicial function. By and large, judicial independence embodies at least three complementary elements. These include adjudication by \u201ca neutral third\u201d, institutional insulation from political interference or pressure, and guarantees of effective coexistence as a separate branch of government.\u201d However, around the world, the judiciary is also widely seen as a political institution, which functions in the role of political accountability.\u201d<\/p>\n<p>Howsoever the judicial function is conceived, independence is widely seen as constitutive of its being. The United Nations Special Rapporteur on Independence of Judges and Lawyers has argued that judicial independence belongs to the domain of a peremptory norm of international law (jus cogens), although he stops short of explicating the elements of such a norm.<\/p>\n<p>The scope and meaning of judicial independence exist in a zone of contradiction and dynamic ambiguity that encompasses institutional as well as procedural; inherent and instrumental; normative and situational; structural and behavioural; prophylactic and propositional: as well as formal and informal dimensions.<\/p>\n<p>Yet, political rulers can often suborn the judiciary to legitimise themselves and the effectiveness of the judicial institution is reputedly shaped by political context. Courts and judges are at once institutions and employees of the state and yet, agents of the government. Notwithstanding its description by Baron de Montesquieu as \u201cin some measure next to nothing,\u201d the judiciary is nevertheless eulogised in comparative jurisprudence as the ultimate custodian of constitutional government, the \u201clifeblood of constitutionalism,\u201d and as the avatar of the people against autocracy.\u201d<\/p>\n<p>The adjudication of election-related disputes tests the limits of these assumptions about the judiciary and has been delicately described as a \u201ccompromise between law and political expediency.\u201d In many African countries, the people may vote but the question of who wins or loses the presidency is increasingly resolved as a judicial dispute in compelling spectacles of judicial pusillanimity. Uganda\u2019s former Chief Justice, Benjamin Josses Odoki, \u201csmiled when commenting that to nullify a presidential election would be suicidal,\u201d suggesting that the independence of judicial decision making in any country is reflected in both the scope of judicial imagination and in its institutional psychology. A mere seven years after this claim by Uganda\u2019s Chief Justice, David Maraga, as Chief Justice in neighbouring Kenya, led the Supreme Court in that country to accomplish precisely that,\u201d and less than three years later, the Constitutional Court did the same in Malawi, with a bench of judges dressed in bullet-proof vests.\u201d It must be said that these could not have occurred under the constitutional systems bequeathed by colonialism at Independence. By the time these developments occurred, these countries had re-engineered their constitutional foundations forged in bitter experience. But, if judges can be so powerful as to strike down election returns, it is natural to expect that assertions of their independence will not go without political pushback. Naturally, therefore, the involvement of judges in electoral adjudication makes their independence a zone of political contest.<\/p>\n<p>TOMORROW\u2026<\/p>\n<p>The author discusses how the courts in Africa have overreached themselves and the consequences, citing as examples Malawi, Zimbabwe and Mali before zeroing in on Nigeria, saying \u201cfew countries have been overtaken by this trend like Nigeria.\u201d\u00a0<\/p>\n<p>The post <a href=\"https:\/\/www.vanguardngr.com\/2025\/05\/the-judiciary-and-rule-of-law\/\">The judiciary and rule of law<\/a> appeared first on <a href=\"https:\/\/www.vanguardngr.com\/\">Vanguard News<\/a>.<\/p>\n<p>, <\/p>\n<p>The author laid the groundwork for his thesis that judges, whom he calls \u201cthe selectorate\u201d, have toppled the people in deciding who rules them. <\/p>\n<p>The post <a href=\"https:\/\/www.vanguardngr.com\/2025\/05\/the-judiciary-and-rule-of-law\/\">The judiciary and rule of law<\/a> appeared first on <a href=\"https:\/\/www.vanguardngr.com\/\">Vanguard News<\/a>.<\/p>\n<p>, <!-- no image -->, Nwafor, {authorlink},, , Vanguard News, May 27, 2025, 12:15 am<\/p>\n","protected":false},"excerpt":{"rendered":"<p>The judiciary and rule of law, YESTERDAY The author laid the groundwork for his thesis that judges, whom he calls \u201cthe selectorate\u201d, have toppled the people in deciding who rules them. Today, he examines the concept of rule of law, the judiciary and their relationships to elective government, beginning with Albert Venn Dicey. By Chidi [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":11416,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_uf_show_specific_survey":0,"_uf_disable_surveys":false,"fifu_image_url":"https:\/\/cdn.vanguardngr.com\/wp-content\/uploads\/2025\/05\/1748207096561blob-1.png","fifu_image_alt":"","footnotes":""},"categories":[779,8,1097],"tags":[],"class_list":["post-11415","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-book-serial","category-news","category-rule-of-law"],"aioseo_notices":[],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>The judiciary and rule of law - EduNews<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/edumarkng.com\/news\/the-judiciary-and-rule-of-law-2\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The judiciary and rule of law - EduNews\" \/>\n<meta property=\"og:description\" content=\"The judiciary and rule of law, YESTERDAY The author laid the groundwork for his thesis that judges, whom he calls \u201cthe selectorate\u201d, have toppled the people in deciding who rules them. Today, he examines the concept of rule of law, the judiciary and their relationships to elective government, beginning with Albert Venn Dicey. 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Today, he examines the concept of rule of law, the judiciary and their relationships to elective government, beginning with Albert Venn Dicey. 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