Reflecting on Military Myth and Judicial Intervention in Nigeria:Judicial Activism or Passivity in Construing Military Decrees

Abstract

A most prominent debate on system of government around the world concerns the relationship between democracy and military rule. It has been argued that shared democracy allow citizens participation in governance, observance of rule of law and respect of fundamental right, whereas military system of government maintain the apparent authoritarian rule without respect for rule of law and fundamental rights and peace is spurious. Moreover, even among those who believe that democracy offers citizens participation in governance, observance of rule of law and respect for fundamental right, strong disagreement remains over the mechanism for driving it. It is contended that military style of government prevents judiciary the necessary independence for resolving inevitable controversies satisfactorily due to ouster of its jurisdiction usually inserted therein the decrees. The surgeon in this paper is the examination of the myth of the military and the role of the judiciary in disputes settlement and attitude to decrees in view of the ouster clauses. The paper examines whether the judiciary has been active or passive in its functions and protection against human rights violation in the military era. The paper traces the history of military rule in Nigeria and the system of government within this period, moreover; our case laws’ experiments allow us to investigate the position of the judiciary as casual mechanisms against the threat and violation of human rights. Using landmark judgments in our analysis, this paper reveals stronger support for judicial activism perception and courageous attitude of the Nigerian courts against aberration of law. Our findings shed light on the need for the political actors to play by the rule and prevent military incursion and truncation of democracy.