LEGAL IDEAS FORUM

INDEPENDENCE OF THE JUDICIARY : THE NIGERIAN REALITY

CONCEPTUAL CLARIFICATIONS

INDEPENDENCE:
The word ‘independence’ has been described as the state of independent i.e freedom from interference. The Oxford Advanced learners Dictionary 9th Edition defined independence as the freedom to organize your own life, make your own decisions etc without needing help from other people. 

Independence has also be defined by Blacks law Dictionary as the state or quality of being independent especially a country’s freedom to manage it’s affairs whether external or internal without control by other countries. 
JUDICIARY: The word ‘Judiciary’ has been described as a system of court justice in a country. It is the department of government charged or concerned with the administration of justice, judges, taken collectively as the liberties of the people are secured by a wise and independent judiciary. Judiciary has been equally defined as : the judges of a state collectively. 
ABSTRACT 
Diverse opinions on the Nigerian judiciary varies from those who believe the judiciary is dead to  those who believe it is on trial and the more compassionate view that it is a “beast of burden” or a sacrificial lamb. These remarks is derived from the observations of the alleged actual behaviors of judges and their independence, impartiality and intergrity. 
While the above metaphor may he subject to various interpretations, they do raise consideration, curiosity and interest as to why any judiciary should attract such comments and to what extent the concepts are justified. This article therefore seeks to examine the reality of the independence of the judiciary in Nigeria. 
INTRODUCTION 
Judicial independence or independence of the judiciary has its origin from the theory of separation of powers. By this theory, the Executive, Legislature and the Judiciary are three separate, distinct and independent branches of government. Each arm is independent of the other arm in what it gets or does. 
This principle suggests that the judiciary should be separated from the legislative and the executive power and shielded from inappropriate pressure from these branches of government and from private or partisan interest. Independence of the judiciary connotes complete judicial freedom in all ramifications. Globally, the International Human Rights Conventions, the Universal Declaration of human rights, African Charter on Human Rights and other regional human rights instruments recognise the notion of independence of the judiciary in their provisions by guaranteeing the right to fair hearing in civil and criminal proceedings before an independent and impartial court or tribunal. 

Undoubtedly, it is only an independent judiciary that can competently provide the necessary checks on the excesses of the other arms of government particularly on breaches of rights and freedoms of the citizenry. Article 14(1) of the International Convention on Civil and Political Rights states that all persons shall be equal before the courts and tribunals and that ‘in the determination of any criminal charge against him or of his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. 

Article 10 of the Universal Declaration of Human Rights states that : 
everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in determination of his rights and obligations and of any criminal charge against him.  
Interestingly, the independence of the judiciary is also recognised in Nigeria by its constitution. Section 17(2)(e) of the Nigerian Constitution 1999 provides that the independence, impartiality and intergrity of courts of law, and easy accessibility thereto shall be secured and maintained”. 

In the execution of the mandate of interpretation of law and administering justice, the judiciary is not tied to the apron of strings of any political party, pressure group, religious, racial or ethnic groups, sex, geo-political entity etc. and this explains why the symbol of justice is depicted as a blinded person(Lady) holding two even scales, meaning that the judiciary is to dispense justice to all manner of persons without fear or favour, affection or ill-will.  
It has been argued strongly that Section 36(1) of the Nigerian Constitution only guarantees the  right to have ones case heard by an independent and impartial judge and does not guarantee institutional independence of Nigerian judiciary at all. This is the reason why the fortunes of the Nigerian Judiciary is dwindling day by day as it is compelled by lack of constitutional guarantee to always beg either the executive or legisture for one financial favour or another. 
Administrative Independence of the judiciary implies that the judiciary must be able to freely handle and carry out its administrative matters without any interference. The judiciary must be able for instance to freely assign cases to judges without interference or intervention of the executive or legislature. As an institution, the judiciary must also be independent to render it’s opinion, judgement and orders free from any fear of executive or legislature. 
As simple as the above may seem and to the extent by which the independence of the judiciary in the constitution of Nigeria is permissible, there seems to be no effective operation of this independence in the pragmatic Nigerian legal system. It is no doubt that under the 1999 constitution, the appointment of the judicial officers is concerned with the President while the National Judicial Council is constitutionally responsibile for making recommendations of qualified candidates to high bench at state and federal level. 

While the President and Governor can appoint a person who has been recommended by the council, they are not bound to appoint a person in whom a favourable recommendation has been made. Where the President or the Governor turns down a person recommended by the council or the commission, a non-recommnded person cannot be appointed. The council or commission must be requested to recommend. This is where the politicking comes in.  Appointments with Judicial Service Commission at the State level are often made based on political affiliation and political accounts are taken into consideration on the case of recommendation. For example in the composition of the State Judicial Service Commission, it is to be comprised of the following members: 
(a) The Chief judge of the State who shall be the Chairman; 
(b) The Attorney General of the State; 
(c) The Grand Khadi of the Shariah Court of Appeal of the State if any; 
(d) 2 Members who are legal practitioners and who have been qualified to practice as legal practitioners in Nigeria for a period of not less than 10 years; and 
(e) 2 other persons not being legal practitioners who in the opinion of the Governor are of unquestionable integrity.
The appointment of the Attorney General of a state and 2 members from the private bar and 2 other persons who are non legal practitioners to the Judicial Service Commission are often abused in practice. They are appointed contrary to the constitution based on political considerations and more often than not are used to veto important decisions of the Chief Judge of the state especially where the decisions does not go down well with the interest of the state. Appointment is based on undue emphasis on geopolitical or ethnic considerations and in the process utterly incompetent people are appointed based on these considerations. Removal of judicial officers under our present dispensation is done by the President or Governor upon an address presented by at least two third majority of the appropriate legislative house calling for such removal on the ground of misconduct or inability to discharge the functions of the office (in the case of the Chief Justice of Nigeria/State Chief Judge) or on the recommendation of the appropriate judicial service commission (in the case of other judicial officers). It is clear from the above that appointment and removal of judges in Nigeria have been mainly in the hands of politicians, civilians or military as the case may be.

A clear example of this is the removal of the former CJN by President Muhammadu Buhari. The removal of Justice Walter Onnoghen as CJN is the highest point of executive interference and maneuver in the judicial system. It goes to show itself as bizarre, as even though our law tells is that it is he who appoints that can remove.  History will not forgive me, if I fail to point out the mellow drama between the out gone Chief Justice of Nigeria, Justice Aloysius Katsina Alu and the suspended President of the Court of Appeal, Justice Ayo Isa Salami. 

In brief the suspension of the President of the Court of Appeal (PCA) Justice Ayo Isa Salami by the National Judicial Council (NJC) over his refusal to apologize to the NJC and the then Chief Justice of Nigeria (CJN), Justice Aloysius Katsina Alu, and his compulsory retirement by President Goodluck Jonathan who acted under his constitutional authority and the subsequent recall of Isa Ayo Salami from Suspension by the NJC which suspended him and the refusal of President Goodluck Jonathan to approve the acts of the NJC raises questions regarding the partisan nature and level of Independence within the Nigeria Judiciary.
Also, in terms of security of tenure and remuneration of judges, there has been a high level of dependence of the judiciary on other branches of the government especially the executive. It is said that Magistrates, Area and Customary Court Judges and Shariah Court Judges are under the Constitution of the Federal Republic of Nigeria not covered by the term “Judicial Officers”. They are appointed, promoted and subjected to disciplinary control by the various states Judicial Service Commission, even though they perform the bulk of judicial work and closer to the grassroots, their usefulness is undermined. One wonders why they can be referred to as non judicial officers.  Remuneration at the Superior Courts of records level has been greatly improved upon in recent years even though there can still be room for improvement, compared with their colleagues in other developing and transition states particularly having regard to the volume of work and the environment in which they operate. 

The major problem has to do with judges of the lower courts. They are not covered. They take home peanuts. Their salaries, allowances, environment and social facilities both in their places of work and family matters are pathetic. This paves way for manifest corruption,ineptitude and generally lack of seriousness to work. Notwithstanding the improved salaries of the Superior Courts of records, allegations of corruption, continuously rears its ugly head in the cause of public discourse and judges of superior courts have been dismissed on proven allegation thereby casting a huge question mark on the independence of the Nigerian Judiciary. Only recently, some justices of the Court of Appeal were dismissed by the National Judicial Council for receiving bribes on the course of hearing of election petition cases. We also witnessed the probing of judges of the High Courts, a Customary Court of Appeal judge, and a Shariah Court of Appeal Judge who were investigated and arrested by security operatives for allegedly carting away large sums of money in Akwa Ibom State in an election petition tribunal. This situation has caused the judiciary to be dependent against it’s supposed independent nature. 
Futhermore, the Judiciary in Nigeria has become dependent instead of independent with regards to budget provisions and appropriation.  The court in the case of AG FEDERATION V.  AG ABIA STATE $ ORS. held that “it is the consolidated revenue fund of the federation and not the federation account that is charged with the salaries of the judicial officers in the federation. 

The involvement of the Federal Government of Nigeria and State Government as the case may be in the budget process of Courts in Nigeria is an indication of the extent of judicial independence in Nigeria. Unchecked domination of one branch over the other can produce dysfunctional budgetary allocation process. In Nigeria, this plays down especially at the state level. Clear out constitutional provisions are recklessly ignored by the Governors of the States particularly with regards to capital expenditure for state judiciaries. The constitution provides that “Any amount standing to the credit of the Judiciary in the consolidated Revenue Fund of the State shall be paid directly to the heads of the Courts concerned”. 
This provision rather than be complied with by the State Government is often breached especially where the head of Court within the state is not in the good books of the Governor of the State. This dysfunctional budgetary allocation has given rise to disastrous situation for the Judiciary. Absence of funds can lead to non-availability of physical structures or grossly inadequate structures like Court halls, chambers, Registries and offices for supporting staff which will in turn affect the flow of cases and other essential services thus leading the system not been able to face the demand and deliver the requisite justice demanded. Sometimes salaries and allowance of supporting staff can be too low and in arrears for months thereby creating an atmosphere of frustration and discontentment, which normally breeds indiscipline,corruption and eventually breakdown of the system.
Also, the unnecessary interference of the Executive arm of government in the judicial process has also caused for the independence of the judiciary to be a mirage. The history of the Judiciary around the world demonstrates that the greatest danger of interference counsel from other government institutions or political parties. An independent Judiciary must not only be independent in unwarranted interference with the judicial process by the executive arm of government and politicians but it must appear to be independent. This brings into operation the popular adage “Justice must not only be done, but also must be seen to be done”. To remain just, the courts must not be influenced by any outside sources or appear to be capable of such influence. To aid such a perception, they must have no real or apparent contact with a political party. If such contact exists, they would appear to be bias in favour of the policies of that party or if the party controls the state, to be biased in favour of the state, succumbing to pressures from the executive arms to inappropriate interference with judicial independence. 

Access to judges outside official channels has been one of the greatest problems that further threaten the independence of the Judiciary in Nigeria. Governors of states have direct access to judges within the state even as it relates to matters in court and lawyers and clients often boast of their accessibility to judges or even to panel of an election petition hearing particular cases. The unresolved saga between the out gone Chief Justice of Nigeria and the embattled President of the Court of Appeal is an example. Hence, the unbridled access to judges and justices amount to self erosion by the Judiciary of the principle of independence of the Judiciary. 
Intimidation and lawlessness by members of the executive especially Governors abound Governors show contempt to court order when it does not please them and even the legislators. One wonders the justification where legislators had the impudence to summon a Chief Judge to come and answer question in connection with appointment in a Court of Appeal, a Court when the Chief Judge had no influence whatsoever, or a situation when a state police commissioner refuses to comply with a High Court order on seven successive occasions.
RECOMMENDATIONS
To revive the seemingly lost confidence in the Judiciary and boost the independence of the Judiciary, the following recommendations are proffered: 
1) Magistrates, Area Courts, Sharia Courts and Customary Court judges as well as Chairmen of the Rent Tribunal of the various states should be treated as judicial officers especially as far as salaries and tenure of office are concerned.
2) State governments should be made to uphold and comply religiously with the provisions of section 121(3) of the Constitution of the Federal Republic of Nigeria 1999 which provides that “any amount standing to the credit of the Judiciary in the consolidated revenue fund of the state shall be paid directly to the heads of court concerned” and default in doing so should be criminalized.
3) The structure of the National Judicial Council should be restructured not only to include Judicial Officers but also lawyers, law professors, judges of inferior courts so as to enhance the quality of the selection of top judicial officers and minimize possible influence from the executive or partisan selection from other judicial officers in the council.  
 4) The judiciary should be allowed to manage certain aspect of their affairs such as the discipline, remuneration and possibly appointment of judicial officers. 
With all these recommendations considered, the independence of the judiciary tjough may not be absolute in other for their excesses to be curtailed by other arms of the government but will be a reality and not a mirage. 
CONCLUSION
The Judiciary is the mighty fortress against tyrannous and oppressive laws. The importance of the Judiciary cannot therefore be over emphasized. It is not an overstatement to assert that an independent Judiciary is the greatest asset of a free people. The Judiciary by the nature of its functions and role is the citizen last line of defence in a free society that is the line separating constitutionalism from totalitarianism.
I however need to appreciate that the position of the Judiciary in a democratic setting is a delicate one. More often than not, the Judiciary has been the sacrificial lambs on the altar of societal imperfection and contradictions. When politicians rig election, it is the Judiciary that is called upon to decide who actually won the election. Again, when politicians loot the nation’s treasury in their unconscionable quest to become millionaires and billionaires, it is in the judges that are called upon to hold the tribunals to inquire into their activities or to try them, and so on and so forth. 
In other circumstances, the Judiciary finds itself in a no win situation and whichever party loses readily cast aspersion on the integrity of the presiding justices.This is the unfortunate lot the Nigerian Judiciary finds itself today.
Thus the high sounding declaration of section 17(2) (e) of the Constitution has no bite and what could have been a constitutional guarantee of judicial independence is no more than a slogan in Nigeria.
THE AUTHOR
Sylvester Innocent is a 400l Student of Abia State University, Uturu. He is currently the General Secretary of the ABSU BAR COUNCIL. He is an avid reader and a prolific writer.
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For knowledge and Justice

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