Common law, in this context, implies those countries with legal systems emanating from English jurisprudence, applying the concept of stare decisis or the doctrine of binding legal precedents; justice according to the rule of law; application of the rules of equity; evidence-based trials and decisions; and, crucially, judicial independence.
The latter point is key, because a politicised appellate judiciary, one driven by partisan-political motives, cannot be independent. The logical extraction of that postulation, is that a judiciary which is not independent, of necessity, cannot, in the honest exposition of the word, deliver justice!
What then is justice? The concept of justice has different meanings in different contexts including mob justice, natural justice, distributive justice, procedural or technical justice, restorative justice, substantial justice et al.
Mob justice, by its very definition, is anarchic, because here, a baying mob arrogates to itself the role of prosecutor, judge, jury and executioner all at once; the corollary of mob justice is often instant death.
For example, A, is accused by a neo-fundamentalist sect, of violating a sacred text, and is instantly lynched. Mob justice is the anti-thesis of justice according to law, it constitutes an injustice; and is therefore criminalised in civilised and progressive societies.
Rational minds understand natural justice to be anchored on equity and fairness; do unto A, as you do unto B, devoid of irrational considerations such as bias, ethnicity, ideological leanings, partisan political beliefs and religious creed. In his seminal tour de force, A Theory of Justice (1971), the philosopher, John Rawls, contends that the aim of justice is: i.) the optimisation of liberty constrained only by the limits of protecting liberty itself; ii.) generic equality, as regards basic liberties of social life, and the distribution of social goods, albeit strictly constrained by the exception of inequalities which afford the greatest possible benefit to the least well-off in society; iii.)“fair equality of opportunity” and the disqualification of inequalities underpinned by circumstances of birth or wealth. In short, the focus of distributive justice is the equitable allocation of goods, opportunities and resources in a given society.
The concern of procedural or technical justice is, justice according to what the law says it is; devoid of ethical, ideological considerations and notions of distributive justice. Indeed, the 1873-1875 Judicature Acts, UK, were enacted to remove the extreme harshness and rigidity of the common law, and embed equitable principles of fairness and natural justice into the jurisprudence of the English legal system and those countries, like Nigeria, Canada, Australia, et al, with a common law patrimony.
Those equitable principles survive until this day, albeit applied at the discretion of each appellate tribunal. Whereas, restorative justice, within the criminal justice realm, concurrently aims to punish offenders and rehabilitate them for the harm which they have caused to their victims; whilst empowering the latter to take a proactive role in those processes.
On its part, substantial justice incorporates elements of equity, fairness, natural justice, procedural and restorative justice in executing justice according to law. This point was eloquently emphasised by Lord Denning, in The Due Process of Law (1980) viz “by due process of the law, I mean the measures authorised by the law so as to keep the streams of justice pure: to see that trials and inquiries are fairly conducted; that law fully available; and that unnecessary delays are eliminated…”
Furthermore, the Nigerian court obliquely addressed the essence of substantial justice in Owner MV ‘Cape Breton’ v Ganic Nig. Ltd, (2007), All FWLR (Pt.372) 1825 viz: “The law is never intended to work injustice or to shut out a party. It is not the purport of the law that it should work injustice… For indeed, the purport and essence of the law would be lost if such oratory, technicality or dexterity were allowed to subdue the justice of a case.”
Now then, with greater clarity on the conceptions and the aspirational pursuits of justice emerges, important posers. Does the constitutional law doctrine of the separation of powers as between the executive, legislative and judiciary imply a hermetic seal between them? The answer is no, relying upon the statutory authority of sections 4, 5 and 6, of the 1999 Nigerian Constitution (as amended) which allocates the powers of the government between the legislature, executive and the judiciary.
Thus, section 4, vests legislative powers in the National Assembly for federal laws; and legislative powers in the respective State Houses of Assembly for state-wide laws. Section 5, vests executive powers at federal level in the President or those acting on his delegated authority; and, in the governor, regarding executive powers at state level and those acting on his authority.
Equally, section 6 (1) and 6 (2), of the Constitution, respectively, divides judicial powers between federal courts and state courts. To that extent, a degree of high-level coordination to meet the aims of justice and public policy in safeguarding social order will be necessary between the judiciary and other arms of government. Thus, high-level coordination and politicisation of appellate judges are patently distinct and discrete.
Appellate judges are, ultimately, appointed by democratically elected partisan political leaders, who are elected to govern, in the national interest, in progressive democratic societies. Does it follow that those appellate judges are politically beholden to their partisan-political appointers and therefore devoid of judicial independence?
Again, this must be answered negatively. Someone must appoint appellate judges. That appointer will neither emanate from planet Jupiter nor Pluto!! In a representative pluralistic democracy, which is the norm in the majority of progressive societies, the appointer individual, or appointer authority, will typically command democratic legitimacy endorsed by the prevailing constitutional order.
And the judiciary, as illustrated above is part of government, albeit fulfilling the pivotal function of executing justice according to law. Accordingly, in the absence of any compelling evidence connecting appellate judges to their partisan-political appointers’ which compromises their judicial integrity; that assertion is non sequitur.
Do ideological leanings play a role in the decisions of appellate courts? Yes. Whilst appellate judges are presumably appointed on the basis of their competence, intellectual capacity, unimpeachable integrity, judgment, neutrality, tact, and demonstrable detachment from partisan politics, the fact of that the matter is that they are neither from planet Mars nor Uranus!
They are all earthlings!! They see, they hear, they feel and they read. They have their own concealed, or not so concealed ideological leanings, and presumably feel the pulse of public opinion. The United States Supreme Court (USSC) exemplifies the latter proposition given its ideological “conservative” and “liberal” leanings in its decisions which are binding on all lower courts.
Take the decision of the USSC in Roe vs Wade 410 U.S. 113 (1973), where the Court in a seminal seven (majority) to two (dissenting) ruling, established that the U.S. Constitution protected a woman’s right to an abortion. However, in 2022, almost 50 years after the original 1973 decision, the Supreme Court in Dobbs vs Jackson Women’s Health Organisation No 19-1392, 597, US (2022), overruled Row vs Wade (1973); and decided on ideological lines, that there was no constitutional right to abortion after all.
The decision was supported by six U.S. Supreme Court Justices, appointed by the conservative Republican Party Presidents, notably Justice Alito and Justice Clarence Thomas, appointed by President George H. Bush; Justice Neil Gorsuch; Justice Brett Kavanaugh; and Justice Amy Coney Barrett, appointed by President Donald Trump; and Chief Justice John Roberts appointed by President George W. Bush. Three U.S. Supreme Justices appointed by liberal Democratic Party Presidents, notably Justice Stephen Breyer, appointed by President William Clinton; Justice Sonia Sotomayor and Justice Elena Kagan, appointed by President Obama dissented.
In the final analysis, the appellate judiciary is evidently part of government, in the wider sense of the word, and there is a clear separation of powers between the executive, legislative and judicial arms of government. However, that “clear separation of powers” is not so separate as to entail a hermetically sealed barrier between the judiciary, executive and legislative arms of government. The effective and pragmatic administration of justice, and the sustenance of social order, demands a degree of policy coordination which is not the same thing as verifiable politicisation of the appellate judiciary.
Nevertheless, appellate judges are, as can be established by the striking case of Dobbs vs Jackson Women’s Health Organisation (supra), which overruled the Roe vs Wade, influenced to a greater or lesser extent by their ideological leanings. That phenomenon highlights a material risk, of a spectre of politicisation of appellate decisions in the U.S. at least.
This will only heighten the desperation by partisan-political appointers for appellate judicial appointees who closely reflect their ideological world view. It is imperfect most certainly, but then again, that is an exemplification of the workings of separation of powers in representative democratic climes.
It is by no means perfect and that imperfection can only be corrected by the people themselves, or their elected representatives, who will ultimately decide which political order, guidelines and legislation best suits their lives, social construct and legitimate aspirations.
Ojumu is the Principal Partner at Balliol Myers LP, a firm of legal practitioners and strategy consultants in Lagos, Nigeria, and the author of The Dynamic Intersections of Economics, Foreign Relations, Jurisprudence and National Development.
