International Journal of African and Asian Studies - An Open Access International Journal Vol.4 2014 99 Rethinking Judicial Activism Ideology: the Nigerian Experience of the Extent and Limits of Legislative-Judicial Interactions Ibrahim Imam Department of Public Law, Faculty of Law, University of Ilorin, Ilorin, Nigeria, Email omotossh200620@yahoo.com Abstract Authoritarian governments are by their very nature unconstitutional. Such government thinks of themselves as above the law, and therefore sees no necessity for separation of powers or representative governance. Constitutional democracy on the other hand, is however based on the notion of people’s sovereignty, which is to be exercised in limited manner by a representative government. Accordingly, judicial activism in this paper is employed to establish the theory of popular participation of courts in the decision making processes through settlement of disputes, interpretation or construction of laws, determination of propriety of legislations, legislative and execution actions within the doctrine of separation of powers for the purpose of enforcement of the limitations in government on constitutional ground. This paper thus examines the concept of judicial activism, its legitimacy and as a mechanism for providing checks and balances in the Nigerian government. The paper demonstrates a game theory of judicial legislative interaction within their function and contends that the notion of judicial supremacy does not hold water because the legislature always has the second chance of invalidating the judgment of courts exercising the legitimate powers. The paper concludes that judicial activism in these countries is a veritable tool in advancing the compliance with the rule of laws on the ground of the Constitution. Keywords: Judicial activism, separation of powers, checks and balances, democracy 1. Introduction The power of government and its limitations by the Constitution has been a difficult question in any democracy around the world. The inception of the Nigerian nascent democracy in 1999 has witnessed a rising public expectations in the realm of protection and enforcement of the rights of citizen which seemed to have been eroded during country’s experience of Military rule and guarantee minimum levels of security. The immense powers exercised by governments over their own citizens have arisen almost entirely from the collective aspirations of the citizen at large, aspirations which depend for their fulfillment on government intervention in many areas of our national life, and which no democratic political actors can ignore. The facts however remains that a powerful executive is inherent characteristic of the Nigerian modern democracy. The proper role of the judiciary in constraining the action of the legislature and the executive thus became imperative. Meernik, & Joseph (1997: 447). Nigeria as a society divided along the line of ethnicity, regionalism, and religious dichotomy most often do experience lot of controversies and appeal of litigation has been particularly strong with citizens’ increasingly viewing judicial intervention as principal opportunity to shape the public sphere. The Nigerian Constitution 1960, 1963, 1979 and 1999 (as amended in 2010) placed the judiciary in this tasking position with a number of provisions that deal with structure, functions and powers of the judiciary. See A. G. (Federation) v Guardian Newspaper (5 Supreme Court 1999: 107) It introduced a unified system in all the states. The Constitution introduced judicial system in hierarchy viz. The Supreme Court of Nigeria, the apex court of the land, the Court of Appeal and the High courts, Shariah Courts’ of Appeal and Federal High Court. Although the Constitution contains specific provisions relating only to the Supreme Court, Court of Appeal and Federal High Courts it leaves the subordinate judiciary to the states. The judiciary plays a vital role as social activist in the Nigerian progressive democratic reality. This growing role and level of judicial intervention depend on the Nigerian legal system where it operates a written Constitution, thus judiciary exercise only a limited power just as the other institutions of the executive and the legislature. However, in Nigeria like many countries operating written Constitution, judiciary has been under attack for assuming a posture of imperialism or supremacy in the scheme of governance. This proposition may not be true in that the powers are ultimately as limited as is that of the executive and the legislature in their several assignments. Ibrahim (2005: 9) However the provision of the Constitution enables the institutions to provide checks and balances on each other if any indulge in excessive, arbitrary or tyrannical use of the power. Against the above backdrop and by virtue of section 6(6) of the Nigerian Constitution the judiciary has come to exercise vast powers of judicial review from which judicial activism metamorphous in respect of the legislative and executive functions. Thus the Nigerian judiciary as represented by courts generally performs one or all of the following functions in constitutional democracies: i. Interpretation of the Constitution or law; ii. Upholding the principle of Federalism by enforcing the balance between the Federal and States organs of Government;