Due to the provisions in the 1999 constitution which gives room for judge’s activism, it is sometimes said that judicial activism is the most viable route for the actualisation of socio-economic rights for Nigerian citizens. This is because the Nigerian judiciary has recourse to act as a check and balance on the executive and legislative branches of power if it is thought that they have exercised excessive, arbitrary, or tyrannical use of power. However, the prevalent attitudes of Nigerian judges on social and economic rights casts doubt on this assertion.
This paper adopts a doctrinal research method, using primary and secondary sources, to examine the role of activist judges in Nigeria, and the viability of this route being an effect driver of social and legal change. The author then looks at judicial activism in India and South Africa, and highlights the actualisation of socio-economic rights as enforceable rights in the two countries. Finally, the author makes observations, recommendations, and conclusions concerning how these case studies might inform efforts in a Nigerian context.
The author distinguishes between the tenets and characteristics of an active judge, who is a servant of power, and an activist judge, who is a servant of the people’s rights and entitlement, before examining in more detail the constitutional laws and legal concepts directing judges’ actions in Nigeria. The socio-economic rights of Nigerian citizens in the constitution are discussed, before the two country case studies are presented. The author concludes that due to resource and financial pressures, and the state of the Nigerian courts, it is too soon to expect progress through judicial activism. What is required is significant state funding focused on securing socio-economic rights of citizens; efforts by civil society to join a campaign to have the Chapter II provisions of the constitution transferred to Chapter IV, so that economic and social rights become fundamental rights; and for Nigeria to be put under international pressure to implement the treaties to which the state has willingly accepted membership to.