Continued from yesterday

The above declaration captures the essence of protecting the fundamental rights of citizens in a democracy. Thankfully, the Nigerian Constitution has also attached great importance to this, with its devotion of a whole chapter (IV) for this purpose. This is an important function of law in a democratic society, for in the absence of a legal mechanism to safeguard the rights of the people, society slides into the Hobbesian state where might is right and where life is nasty, short and brutish.

Checks and balances/Separation of power
The modern idea of separation of powers is to be found in one of the most important eighteenth-century works on political science, the Baron de Montesquieu’s The Spirit of the Laws (1748), which states that: “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates … [or] if the power of judging be not separated from the legislative and executive powers.” In Federalist No. 47 (1788) James Madison, commenting on Montesquieu’s views and seeking to reconcile them with the Constitution’s provisions, states that: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” From Baron de Montesquieu’s titling of his work “spirit of law”, it leaves no one in doubt that it is the law that separates, shares and limits the various powers of the three arms of government. This is a veritable ingredient of democracy and the same must be jealously guarded.

Judicial powers in democratic societies
There are specific attributes that must be found in a democratic society. One of these is the presence of an accountability mechanism whereby public officials are held accountable by, and answerable to, the public for both their actions and decisions. This ensures that public officials are constantly watched in order to avoid bad governance or instances of abuse of power. Although the media has been granted the power to hold the government accountable to the people under section 22 of the Constitution, there is need for judicial protection for this power to become effective.

In a constitutional democracy, the concept of separation of powers permits and fosters dialogue between the three branches of government in order to achieve the goals stipulated in the Constitution. As such, the judiciary, as the organ empowered to interpret and apply the law, can determine whether the legislature and executive are performing their duties as spelt out in the Constitution. Judicial power connotes the authority vested in the courts to declare and interpret the law.

In democratic societies, this power is used as an enforcement mechanism of the peoples’ rights because the courts can be called upon at any time, by any individual, to adjudicate on the legality of an act: in fact, judicial power can be utilized by a people to cause the judiciary to rule on whether an executive or legislative act is compatible with the Constitution. In short, the judiciary is inadvertently translated to an agent of human rights enforcement by ensuring that the contents of human rights instruments, applicable in that country, are employed as sources of law in the settlement of human rights disputes in particular and other disputes in general.

The judiciary should use this power vested in it by the supreme law of the land to sanction instances of executive and legislative excesses which negatively impact upon the rights of a people, which, in turn, would positively enhance the core civil and political rights contained in our laws and other international instruments. The judiciary plays a great role towards advancing human rights and democracy in a country. Where dictatorship reigns, the judiciary should be held responsible.

Conclusion
I want to conclude by saying that the judiciary is the live wire of any democracy and as such, privileged men and women who occupy this exalted Bench should ensure that they continue to discharge their responsibilities as spelt out in our Constitution effectively. Justice should not be given to the highest bidder or political benefactors. We should ensure that the basic belief that all men are born equal and deserve true justice is followed to the letter. Democracy is an expensive choice and we should do all we can within our reach to keep it and consign its adversaries to the barracks. By doing this we will avoid anarchy and cracks in the very foundation of this country.
Concluded

Adegboruwa is a Senior Advocate of Nigeria (SAN)