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On the Independence of the Judiciary

The governance processes of nearly all modern states are regulated by Constitutions that establish organs of Government to run government business in the form of (i) the making or repealing or amendment of laws for the peace, order and overall good government of the country; (ii) the execution and maintenance of such laws and the designing and implementation of relevant regulatory or permissive policies that facilitate the effective administration of the entire governance system; and (iii) the adjudication of disputes between individuals and/or groups as well as conflicts that arise while the laws of the land are being made or conflicts that arise whilst the laws and policies are being implemented through executive and administrative decision-making or action. A common feature of all such constitutional regulatory frameworks is the establishment of independent organs with definite and distinctive functions and powers. The three organs of Government common to most governance systems are the Legislature, the Executive and the Judiciary. The Legislature has ascendancy over the law-making process, while the Executive organ superintends over the executive business or the execution and maintenance of the laws through administrative actions and policy tools. The adjudication – which includes the interpretation of laws, the maintenance of the rule of law, protection of the fundamental rights of the individual and the judicial review or reality check on both legislative and executive actions or inactions – is vested in the Judiciary.

The independence and distinctiveness of the organs are secured by thedoctrine of separation of powers enshrined in most of such Constitutions. The doctrine of separation of power does not confer supremacy on any of the organs over their respective areas of influence, but a symbiotic and interdependent structure. Each organ is only a superintendent over the area carved for it by the Constitution. It is, therefore, common knowledge within legal circles that the implicationsof the doctrine of separation of powers include: (a) that the same person should not be part of more than one of these three arms or divisions of government; (b) that one branch should not dominate or control another arm (this is particularly important in the relationship between the Executive and the Courts); (c) that one branch should not attempt to exercise the function of the other; for example, a President, however powerful, ought not to make laws or indeed act except in execution of laws made by the Legislature. Nor should a Legislature make interpretative legislation; if it is in doubt it should head for the Court to seek an interpretation.

This article centres on the Judiciary and the challenges of securing its independence and financial autonomy. The Judiciary refers to the entire Court system that constitutes the institution responsible for interpreting the laws and administering justice in the modern state. In Nigeria, the Court system includes superior Courts of record itemised in Section 6(5)(a-i) as (a) the Supreme Court of Nigeria; (b) the Court of Appeal; (c) the Federal High Court; (cc) the National Industrial Court; (d)  the High Court of the Federal Capital Territory, Abuja; (e) a High Court of a State; (f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja; (g) a Sharia Court of Appeal of a State; (h) the Customary Court of Appeal of the Federal Capital Territory, Abuja; and (i) a Customary Court of Appeal of a State and the other Courts described in Section 6(5)(j & k) of the Constitution as (j) such other Courts as may be authorised by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws; and (k) such other Courts as may be authorised by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws. There are the Election Tribunals established under Section 285 of the Constitution andCode of Conduct Tribunal established under the Code of Conduct Bureau Act and the 1999 Constitution. There are also Magistrate, Customary, Area and District Courts – all exercising one form of jurisdiction or the other. These Courts are presided over and personified by judicial officers that include Magistrates, Khadis, Judges and Justices who are assisted by various categories of administrative and support staff. These include Cleaners, Messengers, Court Clerks, Court Registrars, Bailiffs, Sheriffs, Accountants, Auditors, Directors and Administrative, Departmental Heads, Deputy and Chief Registrars.

Contrary to the intendment and prescriptions of the Constitution, the Executive organ of Government in Nigeria has been breaching and trespassing on the independence of the Judiciary. Besides taking away the financial autonomy of the Judiciary, the Executive interferes with – and manipulates – the processes and procedures of the appointment of Judges. Worse still, the Executive picks and chooses the type of orders and judgments it obeys. The situation got so bad that the Judiciary Staff Union of Nigeria, JUSUN, which comprises the noncourt presiding judicial officers and staff of the Courts, has recently embarked on a nationwide strike that has paralysed the entire Judiciary. Courts have been locked to force through the independence and financial autonomy of the Judiciary.

The attempt here is to highlight attitudes and areas of significance to the independence of the Judiciary. Starting with the attitudinal sources of the travails of the Judiciary, we should note that the principal personnel of the legislative and executive organs are elected by the people through rigorous elections to serve for specified terms. Being elected members, they see themselves as donees of the sovereignty of the people. They represent and act for the people. On the other hand, judicial officers in Nigeria are not elected but appointed through processes and procedures that involve both the legislative and executive arms. They have no electorate mandate and, as such, are mere employees of the people who do not deserve any treatment or status that is beyond that of the general public service.  That “power” to appoint also creates a false sense of superiority that beclouds the perception of the role and status of the Judiciary in the governance system and structure of Government by the legislative and executive arms. The two elective arms could not see themselves sharing equal status with the non-elective organ. There is also that unjustified impression that the heads of the judiciary are incapable of putting the finances of the judiciary into judicious use or that contracts for services and projects of the judiciary can be better handled by the Executive. The reality however is that the judiciary has inbuilt accounting and auditing systems that promotes frugality and judicious management of its funds. The fact that the state judiciaries are subject to of the expenditure oversights of both the State Accountant General and the Accountant General of the Federation, makes the argument that granting financial autonomy to the State Judiciaries most untenable. In any case, the judiciary is subject to the anticorruption laws and prosecutorial institutions of the state.

Worse still, the power of the Judiciary to invalidate or nullify the actions of elective branches of government creates the fear of its abuse or capacity to obstruct or stand in the way of government business.

These perceptional flaws are borne out of a misunderstanding of the proper role of the Judiciary. In the first place, the power of the Judiciary is donated by the people, and their status is not diminished or made less important because of the people’s deliberate decision of secluding and insulating them from political influences and biases. The nature of their functions makes it imperative for them not to be mired in the politics that characterises the life and times of elected political officeholders.

The power of the Courts to stand in the way of elected officers by scrutinising their actions to ensure that they conform to the law is intrinsic to democratic governance and an effective antidote to tyranny. It defines and demonstrates limited power and limited Government. Without it, the Courts would not be able to keep majority rule from degenerating into majority tyranny. Without that power, the legislative and executive arms can connive and effect a coup against the people.  All tyrannical governments are built on the ashes of razed Judiciaries.

Of course, the independence of the Judiciary is not defined by its powers to review the actions or inactions of the elected and administrative organs of Government. At the bottom of the independence of the Judiciary is the ability of judicial officers to administer justice “without fear or favour, affection or ill-will”. The Judiciary should inspire confidence in the citizenry that all disputes and conflicts will be resolved by the Courts purely and solely based on the law and without external influences.

We have had to discuss the appointment of judicial officers because of its capacity to influence the independence of the Judiciary. There is the concern that the present processes and procedures of appointing judicial officers do not guarantee the appointment of quality and independence of mind of those appointed. A basic principle on the independence of the Judiciary adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held in Milan from 26 August to 6 September 1985 is that persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualification in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of Judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or another opinion, national or social origin, property, birth or status, except that a requirement that a candidate for judicial office must be a national of the country concerned shall not be considered discriminatory.

Akin to the appointment process are the conditions of services and tenure of judicial officers. The Congress noted that the term of office of Judges, their independence, security, adequate remuneration, conditions of service, pensions and age retirement shall be adequately secured by law. Whenever appointed, judicial officers must be guaranteed secured tenure of the office until the mandatory retirement age. The promotion of judicial officers should be based on objective factors that do not undermine ability, integrity and experience.

Some other pertinent issues considered by the Congress is the need to ensure that the administrative powers of the Courts are not interfered with. In particular, the administrative head of a Court should have absolute discretion in the assignment of cases to judicial officers within their Court. The immunity of judicial officers from prosecution for matters they handle in their official capacity must be secured. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. A judicial officer shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential unless otherwise requested by the judicial officer. Judicial officers shall be subject to suspension or removal only for reasons of incapacity or behaviour unless otherwise requested by the judicial officer. All disciplinary, suspension or removal proceedings shall be determined following established standards of judicial conduct. Decisions of disciplinary, suspension or removal proceedings should be subject to an independent review by the Courts.

The impetus for the strike embarked by JUSUN is the refusal of State Governors to grant financial autonomy to the respective Judiciaries of their States. Before proceeding any further on this issue, I hasten to make some clarifications. Financial autonomy is not synonymous with the salaries and welfare packages of Judges. Yes, judicial officers must earn good salaries. The reasons are obvious. Judges, for instance, are generally recruited from among successful practising lawyers. It would be difficult to entice such lawyers to leave their lucrative practice for the bench if the salaries on the bench are poor and unattractive. Poor salaries and miserable welfare packages make it easier for judicial officers to yield to the temptations of bribery and corruption.

Financial autonomy also goes beyond paying judicial officers fat salaries and attractive perquisites. It is about rescuing judicial officers from the fear that their salaries and welfare packages are dependent on the whims of State Executives. It is about never exposing judicial officers to the feeling that if they do not please the government their salaries and welfare packages may be at risk. The Judiciary should not depend on the magnanimity or the good relationship it has with the State Executive for its welfare and conducive working environment. It should be the master of its fate. The Constitution recognises this need when it charges the remuneration, salaries and allowances payable to judicial officers upon the Consolidated Revenue Fund of the Federation under Section 84.  Section 121(3)(b) specifically 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. The Consolidated Revenue Fund of a State is an account into which Funds raised or received by the State are paid. Monies shall be withdrawn from this account to meet the expenditure that is charged upon the fund by the Constitution or, where the issue of those amounts of money has been authorized by appropriate law, supplementary appropriation law or law passed in pursuance of Section 121 of the Constitution of the Federal Republic of Nigeria 1999.

From the above provisions, the Judiciary should be capable of drawing up its budget for its annual needs and expenditure.  It should not depend on the Executive for the building and maintenance of befitting offices and accommodation for its personnel. In sum, the Judiciary must be funded and protected from hardship the same way as the other organs of Government that are by all means co-equals.

Written by
Sam Kargbo
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