The Role of judiciary in African states
The judiciary is the system of law administration; it includes all those responsible for interpreting and executing the laws of a country. It is also known as the court system.
Functions of the Judiciary
- Interpretation and giving meaning to the law as enacted by the legislature.
- Adjudication of disputes between individuals and co.
- The judiciary also takes an active part in the maintenance of law and order in society.
- Administration of oath of office.
- The judiciary also checks arbitrary use of government powers either by the legislature or the executive.
Types and hierarchy of courts in Nigeria
- The supreme court- the highest court.
- The appeal court (federal appeal court in Nigeria).
- The high court judge
- The magistrate court
- The customary court
- The sharia court for (Muslims)
Independence of The Judiciary
Independence of the judiciary in most African countries is more theoretical exercise than practical. There is no gainsaying that independence of the judiciary in Nigeria and other praetorian and neo-colonial states is a farce. In Nigeria today, the President (from the Executive arm of government) gives order and even appoints any Judge of his choice, and use him thereafter to silent every of his court cases.
In order to ensure the independence of the judiciary, certain conditions must be strictly adhered to and they are selection and appointment of judges, the security of tenure of judges, and political neutrality of judges.
Selection and Appointment
Judges should be essentially be selected or appointed based on political considerations. They should be selected on neutral ground and based on merit.
Security of Tenure
This means that judges hold their appointment as long as they maintain good behavior and not according to whims and caprices of the government in power. In U.S.A, judges of the supreme courts can be removed only by impeachment of congress in the case of serious offences.
Political Neutrality of Judges
Judges must be impartial once they are selected or elected. They should be immune from political pressure and interference and from the government that approve their appointment.
Types of law
- Administrative Law: There are the rules, regulations, orders, instructions, and guidelines of the executive to the administrative servant of the government.
- Statutes Law: these are the legal laws enacted by the legislature
- Constitutional Law: these are the legal rules defining and de-limiting the structures and powers of the institution of government.
- Common-Law: When these countries became independent, it continued to form the basis of their law.
- Civil law: It must be distinguished from the branch of law called criminal law because civil law refers to non-criminal matters in a state.
The Rule of Law
The term “rule of law ” is an ideology that the law of the state is supreme and above any other considerations within the state. Furthermore, the phrase “rule of law” means that the law is supreme, superior, and generally acceptable as the mode of determining and dispensing justice in the state.
Limitation of the Rule of Law
- Diplomatic Immunity: diplomats are above the law of the country in which they are serving
- The Existence Of Administrative Tribunal: judicial power is also a limitation to the rule of law.
- Trade Union And Parliamentary Immunity: There are also seen as limitations to the rule of law.
- Judicial Immunity: Judges are immuned against prosecution when they are in the dispensation of justice or while presiding over a case.
- Psychiatric Immunity: Mentally disabled patients are free from prosecution o any offense in any court of law.
Method Of Protecting Individual “Rights By Rule Of Law”.
- the rule of law gives all the citizens equal protection before the law.
- The rule of law ensures that no one is punished or made to suffer a breach of law unless established by a court of law.
- The rule of law ensures equality of every citizen before the law and that judges should dispense justice without fear or favor
- The rule of law ensures democratic principles, separation of powers, and checks and balances.
The Notion of Separation of Powers
The notion of separation of powers was first put forward by an eighteenth-century French political thinkers known as Baron de Montesquieu in his famous book titled “Espirit des Lois” or “spirit of the laws” published in “1748”.
The phrase “separation of power” actually means that whatever or the amount of political power that may exist in any given state, should not be monopolized or concentrated in one person or group of persons. In the application of the principles of separation of powers in the parliamentary or cabinet system, there is little or no separation of power.
Human Rights in Africa
Human rights are called the inalienable rights of people. These are rights which the people must enjoy as human beings and citizens of any state. These rights are sometimes regarded as divine rights. The people are entitled to enjoy these rights once they born.
The covenant on civil and political rights recognized the right of every human person to life, liberty, and security of person, to freedom from cruelty, inhuman or degrading treatments and from torture, etc.
Two major Schools of Thoughts
- The liberal school of thought: Is predicted on the private accumulation of wealth at the detriment of the majority in a given society. The liberal capitalism as a stage of development that will not be phased out.
- The Marxist school of thought: It expresses the interest of the working class to be protected and the intensification of class struggle to dismantle the capitalist system is inevitable
- Benemy, F.W. (1968), Constitutional government of West Africa.
- Finger, S.M. (1980), your man at the U.N, New York.
- Briely, J.L. (1963), The law of nations (6th ed.)