JUDICIAL ACTIVISM; A PANACEA TO OBNOXIOUS LAWS

       

    Introduction

           JUDICIAL ACTIVISM; A PANACEA TO OBNOXIOUS LAWS

                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. Judicial activism involves the reformation of the law to give effect to social policies and achieve substantial justice with regards to contemporary social conditions and values especially when the laws are defective, perverse or draconian. According to one of the various scholars on judicial activism, Chukwuma, opined that;

           ‘There is no better definition of judicial activism than the judges interpreting the laws to meet the demands of substantive justice, irrespective of the bare letters of the law and the Constitution. It implies the judges bringing its head out of and demonstrating that it hears the cry of the oppressed ,sees the oppressive bravado of the oppressor and interprets the law to show that oppression and arbitrariness do not pay the oppressed and the society’’.

                   A famous example of  the exercise of judicial activism  in relation to obnoxious laws is demonstrated in the case of Attorney General Ondo State v. Attorney General of the Federation & Others, the Supreme Court held that the provisions of the Act (ICPC) impugned on the cardinal principles of federalism, namely, the requirement of equality and autonomy of the State Government and non-interference with functions of State Government.

                   Judicial activism has been employed in various cases as a means of eliminating imperfections arising from hasty drafting of statutes or absurdities that could only be manifested in concrete situations. Thereby exposing the lacuna in a legislation. Judicial activism is indeed the solution to the eradication of obnoxious laws in Nigeria because the judges are usually faced with the application of these laws and are in a better position to measure the acceptability and effectiveness of these laws.  This is obvious in the judges approach to some certain obnoxious laws in the country like Cybercrimes Act and adoption of the liberal approach to locus standi.

                The foremost of obnoxious laws reside in the Customary Laws in Nigeria as evident in varieties of case laws in Nigeria. The judiciary has departed from following obnoxious customary laws resulting from archaic customs in favour of progressive and new social policies. In Alajamba Uke v Albert Iro. In this case the the appellants wanted to enforce a purported custom of  Nneato Nnewi by whch a woman was not permitted to give evidence in land matters.it was held to be discriminatory against women. It is obvious from the above cases that judicial activism served as the bedrock of a refined customary law.

                 The provisions of the Public Order Act has also placed upon upon the Governor the absolute power to determine whether or not an assembly, meeting or procession will cause a breach of peace or public order without any judicial review clause. The Public order has failed to make provisions in checking tendencies of arbitrary exercise by the Governor.  In All Nigerian Peoples Party & 11ors v. IGP where Justice Chikere, in dealing with the issue of prior police permit under the Public Oder Act held, inter alia, that the requirement of police permit or other authority for the holding of rallies or processions in Nigeria is illegal and unconstitutional as it violates section 40 of the 1999 Constitution. It is therefore inferable from the above case that the Public Order Act  is a ready tool for repression of political opposition. The absence of delimiting parameters, more than any other factor, renders the Public Order Act obnoxious.

.               Certain draconian laws that encourage discrimination against women in Nigeria can only be reformed by judicial activism. Section 182 of the Penal Code permits marital rape while Section 55(1)(d) of  the  Penal Code condones violence and abuse in marriage.  Section 55 of the Labour Act prohibits women from working in the night. The only exception is for nurses.  According to Section 122 of the Police Regulations, married women are disqualified from enlisting in the Police; a Police Woman who is single at the time of her enlistment must spend two (2) years in service before applying for permission to marry giving particulars of fiancé who must be investigated and cleared before permission for marriage is granted. Section 126 of The Police Regulations provides that an unmarried woman police officer who is pregnant shall be discharged from the force. 

              The National Health Act 2014 has been criticised for violating certain provisions of the 1999 Constitution, African Charter on Human & Peoples Rights (Ratification Enforcement) and other international human rights instruments.  Sections 51, 52 and 53 are even more scandalous. Section 51 permits the removal of a tissue or an organ of a living person for transplantation in another living person WITHOUT ANY CONSENT CLAUSE. Section 52 authorises a registered medical practitioner or dentist to carry out the heinous crime.  Section 53 authorises the sell or trade in human tissues like female eggs cells, sperms, cornea etc provided that payment from the sell or trade is a “reasonable payments are made in an appropriate health establishment for procurement of , tissue, blood or blood products”.   In employing judicial activism, the Court held in the case of Medical and Dental Practitioners Disciplinary Tribunal v Dr. John Emewulu Nicholas that failure to extract a patient’s informed consent before administering a blood transfusion on him constituted an infraction of his fundamental human rights to privacy (section 37) and right to freedom of religion and conscience (section 38).

              A plethora of obnoxious laws prevents civil servants from divulging official facts and figures, notably the Official Secrets Act which makes it an offence not only for civil servants to give out government information - but also for anyone to receive or reproduce such information. Further restrictions are contained in the Evidence Act, the Public Complaints Commission Act, the Statistics Act and the Criminal Code. The activist judge in Nwanko v State declared the law on sedition as obsolete, anachronistic and legally dead for being in conflict with the right of freedom of expression. The Official Secret Act is the greatest obstacle to the press in Nigeria. Despite the enactment of the freedom of information act, the official secrets act still deters its implementation until those obnoxious laws have been repealed.  

               The Land Use Act  has been in existence for 31 years. During these long years, the true interpretation of the Act has proved a knotty issue for all those directly connected therewith. Furthermore, the consent provisions under the Act with the rigorous processes and delays usually experienced in obtaining it has stagnated land transaction in the country, and thus has become a dog in the wheel of development. Moreover, section 47(1), (2) of the land use act are in consistent with section 272 of the 1999 constitution which guarantees the jurisdiction of the High Court of a state to hear and determine any civil or criminal proceeding.  Judicial activism was demonstrated by the Court of Appeal in the case of NELSON VS. EBANG where the court of  appeal refused to follow the decision of the court in SALATI VS. SHEHU  that the High Court lacked jurisdiction to entertain suits in respect of land not in an Urban Area in view of Section 41 of the Land Use Act.

          Judicial Activism has also been employed in interpreting the fundamental Objectives and Directives Principles of State Policy. In Archbishop Anthony Okogie  v Attorney General of Lagos State, The court found in favour of the Plaintiffs on the basis that sections 16(1)(c) and 18 of the Constitution guarantee their rights to participate in the economy and hindering them would amount to a violation of their fundamental right under S. 36  - freedom to hold, receive and impart ideas.

              Although judicial activism has been employed in various case scenarios in Nigeria, the outcry for the judiciary to ensure that justice must be served is still prevalent in the country because of the obsolete laws. Judicial activism brings to the attention of the law makers the need to amend the provisions of some laws. For instance, after 30 years of Companies and Allied Matters Act (CAMA) 1990 as the cardinal business law in Nigeria, it has become obsolete by global corporate law and governance standard. Some of the amendments required in the CAMA 1990 are as a result of inherent defects, while others are as a result of new business practices that have emerged over the years.

               Judicial activism is the backbone of democracy and the remedy to obnoxious laws in every contemporary society. Oputa J.S.C. (as he then was) in a lecture stated thus;

          ‘In a progressing world, the law and the administration of justice cannot afford to be static and retrogressive. The only option open to our jurisprudence is intelligent, mature and progressive activism. We are not to fold our hands and do nothing. No. Our judges have to so interpret the law such that it makes sense to our citizens in distress and assures them of equal protection of the law. Equal freedom under the law and equal justice’