JUDICIAL INDEPENDENCE AND CONSTITUTIONALISM IN DEVELOPING DEMOCRACIES

Judicial independence fosters good governance, the rule of law, and democratisation and ensures the protection of citizens‘ fundamental rights through its primary adjudicative and interpretative powers. However, judicial independence is limited in developing countries such as Nigeria. The executive financially controls the Nigerian judiciary and uses this financial control to influence judicial behaviour. Also, the government frequently ignores the orders and decisions of courts. In addition, the judicial officials are daily been subjected to acts of intimidation and threat. Using the case of Nigeria, this paper examines the nature and scope of judicial independence in a context of limited democracy by focusing on power relations, the challenges and their consequences on the dispensation of justice as well as the image of the judiciary by the citizens that see the institution as their last hope.

Disputes among branches and levels of governments are bound to arise in federations. Federal systems require an institution that impartially and peacefully umpires such disputes. Some federations assign this function to regular supreme courts while others allocate this task to constitutional courts. Ethiopia has assigned this function to a political organ, the House of Federation which has largely remained subservient to the ruling party. This resulted in a centralized federation. The house has failed to serve as guardian of the constitution, rarely set limits on political power and largely failed to enforce human rights. How do emerging federations ensure the supremacy of the constitution and address such disputes where power remains less institutionalized? Using the case of Ethiopia, the paper argues the case for establishing an impartial constitutional court that ensures supremacy of the constitution, resolves disputes impartially, enforces human rights and sets limits on power.

Nigeria has now experienced more than two decades of civil rule after nearly 30 years of military authoritarian rule. The judicial record in governance during the authoritarian period was virtually unaddressed despite widespread public concerns about the role of the judiciary during the period. The political transition proceeded with the judicial institution‘s baggage of complicity for legitimising authoritarian rule and a record of corruption. While the Nigerian judiciary has made significant contributions to governance in the troubled post-authoritarian state, the judiciary remains blighted from unaccounted institutional legacy. This continues to have serious consequences for the rule of law, human rights, and democracy in the polity. Using judgements of the Supreme Court of Nigeria and the existing literature on the Nigerian judiciary, this paper examines and evaluates the effects of the institutional legacy of the Nigerian judiciary on human rights, rule of law and democracy.

Bhutan ordered its first nationwide lockdown through an executive order on August of 2021 after a returning resident tested positive for coronavirus after being discharged from quarantine and coming into close contact with people in the capital Thimphu. Similarly, many executive orders were issued in the government's fight against the pandemic. People complied with the executive's measures as there were no physical protests or strong backlash against those orders as the decision was proving to be in the interest of the nation and its people. The judiciary ratified the executive's decisions without looking into the constitutionality of the executive's decisions. This shows limitations on judicial independence. This paper examines the constitutionality of the executive orders issued, the exercise of judicial review, and its implications for judicial independence during the pandemic in a developing democracy like Bhutan.

I present the model of judicial independence in the context of developing democracies. This model has three distinct features. First, I see judicial independence as a consequence of the interplay between the capacity and willingness of powerful actors to threaten independence, and resistance of judicial actors to such actions. Second, I contend that conceptualizations of independence focusing only on the relationship between the judicial branch and external actors are insufficient as they overlook a variety of possibilities in which independence can be contested from within the judicial branch. Third, I propose that independence can be measured at three different levels: de jure institutional independence concerned with the allocation of formal powers, de facto institutional independence focusing on the actual use of these powers, and output independence which can be observed on the systemic level and on the level of individual judges.