Being views expressed by Dr. Ehiogie West – Idahosa at Law Week organized by the Benin Branch of Nigeria Bar Association on Wednesday, July 3rd, 2019.
The Importance of an independent judiciary to democracy was aptly captured by Alexander Hamilton, one of the framers of the U.S. Constitution when he offered justification for an independent judiciary in the 78th paper of “The Federalist” as follows: The complete independence of the courts of justice is peculiarly essential in a limited constitution. Hamilton claimed that it is only an independent judicial branch of government that can impartially check an excessive exercise of power by the other branches of government. Ade Okeaya Inneh, a Senior Advocate of Nigeria in his paper titled “The Adjudicatory process and the survival of Democracy (2010)” postulates that the court being the tool of the judiciary, is the rudder upon which democracy must and should be kept afloat.
BACKGROUND:
It is important to glance at judicial independence in Nigeria as the starting point for this conversation. By all modern standards, judicial independence is the principle that the Judiciary should be independent from the other branches of government and other private interests.
In other words the other branches of government, powerful interests groups and persons should not be allowed by the Courts to influence their decisions. This principle is largely reinforced by the well acclaimed theory of separations of powers.
The 1999 Nigerian Constitution (as amended) drove this point home in Section 6 by vesting judicial powers of the Federation in the courts mentioned in the said Section. In order to demonstrate severe intolerance to the idea of meddling with judicial affairs by Law makers, Section 4(8) of the said Constitution subjects the legislative powers of the Legislature to judicial scrutiny.
What is more; the sub-section under reference specifically prohibits the enactment of any law that purports to oust the jurisdiction of the court. The zeal to strengthen the judiciary was further expressed through the establishment of the National Judicial Council (NJC) by Section 153 of the same constitution.
The significant powers conferred on NJC by item (i) paragraph 21(a) to (i) of the Third Schedule (part 1) to the Nigerian Constitution include the powers to recommend the appointment and removal of judges at all levels, complete control of funds for the judiciary, disciplinary control of judges and judicial staff, as well as control of broad issues of policy and administration.
As far as our constitutional democracy is concerned, there is enough fire in the Constitution to protect the independence of the judiciary in Nigeria.
To strengthen the tenure of office of judges, the provisions of Pensions Rights of Judges Act, Cap P5, 2004 Laws of the Federation as amended by the Pension Rights of Judges (Amendment) Act, 2016, provide for judges who put in not less than 15 years to be paid pension on certain parameters which depend on the category of each judge.
In addition, certain judges are entitled to other benefits like salaries of domestic staff and so on and so forth. Even judges who get incapacitated on the line of duty are entitled to same benefits.
THE NIGERIAN REALITY:
Inspite of these constitutional and statutory safeguards, can we say that the Nigerian judiciary is truly independent? This is very doubtful.
FINANCIAL DEPENDENCE:
Apart from the Federal judiciary which to some discernable extent enjoys some control of its budgetary allocations for the payment of re-current expenditure like salaries, it is not certain whether they exercise such control over the release and expenditure of capital votes without some measure of Executive influence.
Even at this, policies like Treasury Single Account (TSA) which compels the judiciary to pay its income into TSA denies the judiciary of its much needed revenue and keeps it dependent on Executive Largesse.
This is worse off at the State level in the country, where the judiciary virtually genuflects round Executive tables to sustain its role in nation building. This absence of real financial autonomy undermines the concept of judicial independence.
A significant fall out from financial dependence of the judiciary on the Executive is that it breeds State corruption of the judiciary. By this, the State, using budget planning, releases and privileges influence the outcome of judicial decisions in a manner that can hurt the rights of citizens and the growth of businesses. Eventually, national growth and development could be impeded. The same could the case with the justice system.
EASY REMOVAL OF JUDGES ON THE PROMPTING OF THE EXECUTIVE:
Inspite of what appear to be strong constitutional and statutory protection for the appointment, removal, financial security and some administrative control by the judiciary in the conduct of its own affairs, the biggest threat in today’s Nigeria is the ease of with a judge can be removed on the prompting of the Executive.
We have witnessed frequent arrest and prosecution of judges in Nigeria without subjecting such judges to the extant rules made by NJC pursuant to its constitutional powers on discipline of judges. In my view, every alleged misbehavior by a judge, other than an allegation that a judge committed outright crime, is most likely founded on a breach of judicial oath of office.
Such an allegation must first be subjected to the disciplinary domain of NJC before anything else can occur. Even a complaint against a judge for failing to comply with the code of conduct contained in the fifth schedule of the constitution is a breach of judicial oath spelt out in the seventh schedule of the same constitution.
The current trend of arraigning judges before the Code of Conduct Tribunal without any reference to NJC for failure to correctly declare assets is a flagrant and crude abuse of Executive powers. The Code of Conduct Tribunal is purely an Executive agency and ought not to be allowed to exercise unlimited jurisdiction over serving judicial officials.
This is a very easy way to erode judicial independence as the slightest error contained on Asset Declaration Forms completed by a judge, is an invitation to arrest and harass such a judge. Where is the freedom therefore to dispense justice against all manner of State actors and individuals?
The international standard as recognized by the United Nations is that judges may be dismissed only on serious grounds of misconduct or incompetence. Any decision to suspend or remove a judge from office should be fair and should be taken by an independent authority such as judicial council or a court.
It is in this light that many frowned at the alleged ex-parte order of the Code of Conduct Tribunal which directed the President of the Federal Republic of Nigeria to suspend Justice Walter Onnoghen from office as the Chief Justice of Nigeria without any hearing.
It would be recalled that four other courts of superior jurisdiction had directed the said Tribunal to halt its proceedings. The entire exercise was no doubt a grave attack to the independence of the judiciary.
(c) DECISIONAL INDEPENDENCE:
Decisional independence of judges is the idea that judges should be able to decide cases solely based on the law and facts, without letting the media, politics or other concerns sway their decisions and fearing penalty in their careers for their decisions.
There is a fair presence of decisional independence amongst Nigerian judges in respect of civil cases founded on common law and general criminal litigation. The area concern has to do with the conduct of political matters, whether pre-election or post-election ones.
While it has been generally acknowledged that election matters are sui generis (one of its kind), many believe that some of the decisions given were largely influenced by political, religious, tribal and social actors.
With respect to EFCC trials, there is a preponderance of opinion that the media has through sensationalism affected the outcome of several trials on the prompting of the Executive in a bid to demonstrate successes in the implementation of anti-corruption policies. This is an impediment to judicial independence as judicial decisions ought not to be subjected to such illogical influence.
I must point out that a number of judges are also influenced by corruption, greed and avarice in the discharge of their duties. It is this notion that has given rise to such concepts as “black market” orders, “cash and carry” judgments and a host of uncomplimentary theories surrounding the nature of some of the judgments delivered in Nigeria. The danger is that negative perception of this nature, erode the three basic elements of the independence of the judiciary:
First, the judicial system must be publicly perceived as impartial in rendering decisions. Judges should not have personal interest, whether due to bribery and corruption or as a result of political pressures in the outcome of disputes between private parties and the government.
Second, judicial decisions must be accepted and respected by the contesting parties and the larger public.
Third, Judges need to be free from undue interference from the parties in a case, other branches of government and higher Courts within the National Judiciary.
HOW DOES THE INDEPENDENCE OF JUDICIARY AFFECT DEMOCRACY?
It is easy to discern how these two variables interrelate. The independence of the judiciary is the cornerstone of a democratic society and safeguard for the freedom and rights of the citizens under the Rule of Law.
It is extremely important for the Judges to be free to make impartial decisions based solely on law and facts without interference, pressure or influence. In a democratic state it is the duty of the judiciary to formulate the rule of law through interpretation and application of law to respond with a verdict, settling disputes, checking legality and so on.
To help democracy thrive, the basic principles of democracy such as the rights contained in Chapter 4 of the Nigerian Constitution and other democratic rights must be upheld along the principles of compliance with extant laws.
Our country now relies on the judiciary and judicial means for addressing core legal, moral, political controversies and public policy questions on equality of rights, criminal justice, education, labour and environmental protection. In developed countries, the judiciary is even required to deal with issues ranging from religious liberties, reproductive and privacy freedoms.
The Importance of an independent judiciary to democracy was aptly captured by Alexander Hamilton, one of the framers of the U.S. Constitution when he offered justification for an independent judiciary in the 78th paper of “The Federalist” as follows:
The complete independence of the courts of justice is peculiarly essential in a limited constitution.
Hamilton claimed that it is only an independent judicial branch of government that can impartially check an excessive exercise of power by the other branches of government.
Ade Okeaya Inneh, a Senior Advocate of Nigeria in his paper titled “The Adjudicatory process and the survival of Democracy (2010)” postulates that the court being the tool of the judiciary, is the rudder upon which democracy must and should be kept afloat.
This is indeed true. The Learned Senior Advocate argued that from the registration of political parties, the interpretation of political party rules and regulations, election petition issues, the interpretation of the constitution as it relates to State and Federal powers, the powers of the Executive, the practice and procedure of the Legislative Arm of Government and the protection of human and civil rights through court orders, the Judiciary had made progressive impact on democracy in Nigeria.
Hon. Justice Danlami added his views to the role of the Judiciary in a democracy. In his keynote address titled “Law and Nation Building delivered at the Nigeria Bar Association Law Week ” (Benin Branch) (aka Lion Branch) 2003, the Learned Judge described the judiciary as the “bastion of resistance against the arbitrary or excessive exercise of power by the Executive and the Legislature”.
His Lordship described the Supreme Court of Nigeria as one that has been visible and audible in the interpretation of the constitution and enthronement of constitutionalism in Nigeria. The clear meaning of his Lordship’s views is that the Judiciary guards the rule of law in a constitutional democracy as practiced in Nigeria.
WHY IS IT IMPORTANT TO PROTECT THE JUDICIARY?
It is important to protect the judiciary in a democracy as the judiciary is the defender of people from the intrusions and overreach by the government and powerful individuals. In this way it preserves a free and democratic society.
The entire Bar and the public have a duty to guarantee the independence of the judiciary as the legal framework in our country is not enough to guarantee this critical element of our democracy.
Linda Klein, past president of the American Bar Association (ABA) 2017), captured the need to rally round the judiciary clearly in her message to ABA on June 1st, 2017. The eminent lawyer had this to say;
Public trust is eroded when leaders attack judge’s character and competence. Disagreeing with a decision is one thing. But personal attacks on judges are attacks on our constitution.
The ABA and the legal community cannot tolerate assaults on the judiciary because they can chip away at the legitimate authority of that branch of government and give undue influence to the Legislative and Executive branches.
Attorney Klein pointed out that in following professional codes of conduct, judges are prohibited from speaking about pending cases and are often prevented from publicly defending themselves from attacks.
It is therefore up to the Bar, the Legal Community and citizens to protect the integrity of the courts. I urge us to accept this challenge and continue to educate the public about the role of the Judiciary in our system of government.
Let me draw your attention to what Timothy Snyder, a professor of History at Harvard University said in his book; “On Tyranny”. The erudite professor held the strong view that it is imperative to defend institutions like the courts and press.
He argued that although these institutions normally defends people, there are times when the institutions cannot protect themselves and need to be defended by the people in order to maintain their vital roles in building an egalitarian society.
CONCLUSION:
I conclude by adopting the instructive opinion expressed by Attorney Klein (supra) that;
The legal community must remain diligent and vigilant in their support of institutions, especially the autonomy of the courts. Judicial independence ensures the rule of law, safeguards our democracy and is what former Supreme Court Chief Justice William Rehnquist called “the crown jewel of our legal system of government.
Thank you for listening.
