ABSTRACT
Thus far, the imperative of accountability of the judiciary in transitional contexts has been advanced on two cardinal premises. The first is distinctly normative in character. Normatively, there is the imperative of comprehensive accountability as a measure of transitional justice claims. All institutions of state responsible for misgovernance are in the transitional justice paradigm required to account for their conduct. The previous chapters have provided a comprehensive elucidation of this premise. The second premise is of a hybrid character and can be located simultaneously in normative and political considerations. It is the need for transformation of complicit state institutions as a sine qua non for the reinstitution of the rule of law and sustenance of the democratization project in the transitional society. A process of reform would require a holistic evaluation of previous performance in order to identify operational strengths and deficiencies to map out action points. An important part of the discussion which has been highlighted is the need to ensure the judiciary is properly positioned for its institutional role following the movement away from a troubled past of authoritarianism or even conflict. This chapter and the next two develop the argument on the significance of this premise as an aspect of the case argued in this book for judicial accountability for the past in transitional arrangements. I analyze the resonance of the accountability gap on the judicial function in the present and, presumably, the future with specific focus on Nigeria’s post-authoritarian transition experience. The judiciary has become a strategic institution in Nigeria’s post-author-
itarian transition. Following its post-authoritarian transition, the judiciary has been the focus of both national and international attention as a forum that offers hope for the resolution of ongoing disputes and contestations in the country’s troubled political transition. Has the judiciary been instrumental to furthering or impeding the transition to democratic rule, and the respect for human rights and upholding the rule of law? What has been the nature of judicial intervention in ongoing tensions that emerge from the interplay of a centrifugal federalism and dynamics of political transition in a
heterogeneous, resource-rich but impoverished polity? Proponents of the foregoing issues (and similar ones) have repeatedly framed and pursued them not merely as political, but rather constitutional questions and fundamental rights claims. Framing disputes in the context of the political transition in the foregoing
manner brings to the fore the critical nature of the role of the judiciary at times of political change. How the judiciary has played its role in the postauthoritarian period, particularly in the exercise of its constitutional powers of judicial review, can be gleaned from the jurisprudence emanating from decisions relating to these and sundry issues. With comparative references to transitional experiences in different parts of the world, particularly postapartheid South Africa, Central and Eastern Europe and Latin America, this chapter critically evaluates the role of the Nigerian courts in mediating tensions that have emerged in the post-authoritarian transition period. The dynamics of democratic transition in Nigeria after decades of military
rule, dictate the inevitability of state and society disputes. The military left a legacy of institutional distortion and dysfunctions, the result of which is a series of ongoing and formidable challenges to the transitional society. The societal distortions and dysfunctions extend beyond the economic, social and political sectors to the constitutional and legal order. This is due in part to the nature of military rule with its legendary disregard of the rule of law, constitutionalism and due process. The Nigerian experience is complicated by the predilection of military rulers for a unified command-structure approach to governance in a heterogeneous society. Successive military regimes were notably strong in the rhetoric of the need to preserve the federal character of the country1 but in practice, the command-structured governance that characterized military rule saddled it with a caricature federation. Analysts have noted that such unification or ‘high degree of uniformity in the nature of political arrangements’ is second nature to authoritarianism.2
