The Supreme Court and national interest: The judiciary as a public-policy institution (2), by Usman Sarki

“The essence of federalism is full mutual consent.” — John Buchan

Recalling Nigeria’s history in this discourse matters because the country is not an ordinary political community or mere contraption, as some advocates of restructuring erroneously imagine. It comprises peoples of deep consciousness, immense diversity in language, religion, culture, historical experience and political organisation, who expect these differences to coexist peacefully and equally within one sovereign state under one supreme legal framework.

The country’s unity cannot be sustained by geographical reference, rhetoric, agitations, coercion or sentiment alone. It must rest upon a continuing constitutional bargain in which citizens and constituent units trust that rights will be respected, powers bounded and regularised, and disputes peacefully resolved. This is where I suppose John Buchan’s reflections on federation become relevant. In examining the possibility of federation in colonial South Africa, he stressed the importance of mutual consent and of a deeper national conviction sustaining federal arrangements.

Buchan ultimately recognised that durable federation cannot merely be imposed from above; it requires reconciliation of local identities with membership of a larger political union. Nigeria’s federal experience differs substantially from Buchan’s colonial setting, and some assumptions in his work belong to his race and era. But the general constitutional proposition remains relevant. A federation is not simply a map or an allocation of functions written into schedules and legislative lists. It is a continuous process of balancing unity with autonomy, national authority with constituent rights, and common purpose with legitimate diversity.

In Nigeria, the Supreme Court occupies a central position within that balance. When the Federation and a state disagree over their powers, or states dispute rights between themselves, the Constitution provides an institution outside the immediate political contest to which such disagreements may be submitted. Section 232 is therefore not merely a technical provision on jurisdiction. It forms part of the architecture by which political disagreement is converted into legal argument and by which federal friction may be prevented from becoming political rupture.

There is something profoundly civilising in this arrangement which Nigerian restructuring agitators seem to always overlook or remain unaware of. Instead of confronting one another through political pressure or public mobilisation, governments may appear as litigants and submit their claims to reasoned adjudication. Sovereignty under constitutional government is demonstrated not only through state power, but also through institutional dialogue, established procedures and acceptance of final lawful authority.

The Supreme Court is an arbiter and national integrating institution. Its work helps to keep the disagreements of a diverse federation within a common constitutional language and culture. However, there is a paradox at the heart of judicial authority. Courts possess neither armies nor political constituencies. Judges do not campaign for votes, command the treasury or administer ministries, and remain largely invisible to the public. The strength of the judiciary rests upon something less tangible but enduring, which is public confidence in its independence, integrity and fidelity to law.

This is why, in my humble opinion, judicial character matters. At the highest level, legal knowledge is indispensable but insufficient. A Supreme Court Justice must possess intellectual depth, patience, courage, independence of mind and awareness of institutional consequences. A judgment may settle one dispute while also establishing principles upon which many future controversies will be decided. A phrase written today can become part of the constitutional vocabulary of tomorrow.

Judicial temperament therefore becomes an element of constitutional security. The qualities I observed in His Royal Highness, the Emir of Lafia, Justice Sidi Dauda Bage Muhammad I — composure, measured deliberation, dignity and the ability to listen before concluding — are attributes essential to an institution expected to pronounce finally upon matters already surrounded by passion.

A judge in such a position must possess the discipline to resist not only political pressure but also public excitement and the intrusion of personal idiosyncrasies into decisions. Courts cannot determine constitutional meaning through opinion polls, nor can judges measure the correctness of their decisions by applause from one political tendency or denunciation from another.

Courts are not beyond criticism, however. Their decisions must remain open to rigorous analysis by lawyers, scholars, the media, enlightened citizens and by history. Reasoned criticism forms part of constitutional democracy and can strengthen judicial authority. What must be protected is the distinction between criticism of judicial reasoning and destruction of confidence in adjudication. If every politically significant judgment is immediately interpreted as evidence of partisan allegiance merely because it disadvantages one side, the possibility of neutral constitutional authority becomes endangered.

Sadly, this tendency has increasingly entered public consciousness in Nigeria. That is where a boundary must be established in the criticism of the Constitution and the Judiciary, as is often demonstrated by the misguided enthusiasm and exuberance of the proponents of restructuring in Nigeria. We concede that the Court must recognise that public confidence cannot simply be demanded. It must be earned through consistency, transparent reasoning, fidelity to precedent where appropriate and clear explanation where departure becomes necessary. Finality is a formidable power, and the obligation to explain must therefore be correspondingly greater. But that recognition is central to the selection and appointment of judges of the Apex Court.

Judicial independence has institutional and ethical dimensions. Judges must be protected from intimidation and improper interference while remaining detached from partisan, sectional, confessional and personal considerations. This independence is not a personal privilege. It protects citizens and the state itself. Political fortunes are temporary, but constitutional institutions must aspire to permanence.

The national interest must therefore be distinguished from the interests of any government, party, religion, region or influential personality. Against the fact that governments change, presidents leave office, legislatures get reconstituted and parties rise and fall, the deeper national interest lies in preserving the framework within which such changes can occur peacefully without imperilling the Republic. The permanence of the Judiciary is therefore the solid pillar upon which the Federation rests.

This brings us to a distinction that should remain constantly in view. The Supreme Court must be profoundly conscious of the national interest, but it must never become a court of national expediency. By this I mean a situation where the Court arrives at a decision that may appear convenient at a particular moment. However, the overriding national interest is concerned with what principles will preserve constitutional government over time. The long-term stability of Nigeria depends not upon whether one side is accommodated today, but upon whether all sides believe that the same constitutional rules will remain available to them tomorrow and in perpetuity.

This is why fidelity to law is itself a form of statecraft and the foundation of the national interest. The Supreme Court does not govern Nigeria, but it helps determine the constitutional conditions under which Nigeria can continue to be governed peacefully. Likewise, it does not manufacture national unity, but provides a mechanism through which disputes threatening that unity may be resolved under law. Although it is not a forum for discourse on governance, its judgments necessarily form part of public-policy development.

In that sense, the Court is one of the custodians of the Republic. Its ultimate duty is neither to please government nor opposition, neither to satisfy popular sentiment nor to resist it for its own sake. Its duty is to uphold the Constitution with courage, wisdom, independence and restraint. Justice, in this larger sense, is not separate from the national interest. It is one of its highest expressions. These are the principles that I have learned in listening to The Honourable Justice Sidi Dauda Bage Muhammad I.

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