Human rights decision-making in emergent courts: The Supreme Court of Nigeria, 1961-2000

This study evaluates the institutional performance of the Supreme Court of Nigeria based on how it decided constitutional rights cases during the first forty years. Because of a persistent reluctance to sanction the government in important rights cases or strike down official policy, the ability of the Supreme Court to hold political office-holders accountable (accountability performance) is low. At the same time, demand for its human rights jurisdiction is weak. Rights cases never exceeded 5 per cent of the work of the Court in any year throughout this period, and every important decision was unanimous.;Institutionalization increases with age. From a longitudinal perspective, there is a progressive institutionalization of the Supreme Court over the period studied. Still not considerable, but decades of institutional stability and growing salience appear to accelerate the expansion of the power, and policy role, of the Court, more so recently.;The characteristic strong formalist-deferential disposition of the Supreme Court is demonstrated by its caselaw. Although primarily resulting from its relative weakness, this disposition is also fostered by an authoritarian political environment and by slender legal resources. Narrow interpretation of legal texts and formalistic problem-solving is the dominant legal culture. Comparative rights jurisprudence and creative constitutional reasoning have had little reception in the Court. These are however a secondary factor in the policy output of the Court. Because, even with growing activism in the eighties and nineties, the Court was still unable to shake off its traditional Formal Style decision-making. Formalism is not antithetical to activism. The limited use of foreign legal materials is partly a result of strategy reflecting the limited power of the Court.;The weak market for Supreme Court human rights jurisdiction, indicated by the very limited number of rights cases, is explicable partly by demand-side constraints and partly, perhaps crucially, by an important supply-side factor: the Court's reticence and strict access regime. The former in particular has been a significant disincentive to sustained rights litigation. The experience of the Supreme Court of Nigeria shows that the demand factor in the judicialization of politics is not independent of the policy output of courts. Any explanation of the judicialization of politics as primarily a function of demand does not fully account for the experience of the emergent courts.;The policy role of the Supreme Court is framed by its limited institutional power or, what is the same thing, institutional support (legitimacy). Institutionalization translates into political power. Because it is weakly institutionalized, the Court is not securely autonomous and lacks sufficient structural integrity to effectively resist external policy preferences. Under such conditions, courts are highly vulnerable to noncompliance, counterattack and even marginalization by more powerful policy competitors. Courts constantly seek to expand their power, but are naturally risk adverse, generally preferring molecular increments with limited risk. The Supreme Court's customary reticence may therefore function partly as a strategic response to this power asymmetry, and the absence of disagreement between the judges, especially as writing individual opinions is the norm, indicates that it does not pretend to any significant policy role and is quite wary of division depleting its limited political resources. This also shows that the judges' personality and social attitudes are not an important factor in the Court's rights decision-making.