Securing Judicial Independence: The Way Forward

This article by Abiodun Olatunji, SAN discusses the reasons for lack of independence of the Nigerian Judiciary, and proffers solutions on how to correct this anomaly 

“All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.”- Andrew Jackson

Introduction

The above evergreen postulation of Andrew Jackson, the 7th President of the United States of America (1829 to 1837) is very apt to today’s discussion qua lecture, due to the unwarranted and unjustifiable onslaught by successive civilian and military governments over the years, to erode the independence of the Nigerian Judiciary. There is no gainsaying the fact that the Judiciary has run into troubled waters, and unless drastic measures are put in place to stem the ugly tide, it is about to hit an iceberg. 

The Nigerian Judiciary is at  crossroads and has been unable to cross the ‘Red Sea’ of corruption, financial strangulation by the governments at both the State and Federal level, widespread maladministration within the Judiciary itself etc., which have hindered it from successfully carrying its constitutional mandate as enshrined in the Constitution of the Federal Republic of Nigeria 1999 (As Amended). This now leads us to the germane question that, if the Judiciary itself has been hamstrung in recent times by the Executive constantly seeking to make it kow-tow to its whims and caprices by depriving the Judiciary of the requisite funds needed to independently and effectively run its affairs, how can the rights of the citizens be adequately secured? 

The independence of any nation’s Judiciary is hinged on the theory of separation of powers, a doctrine that is often believed to rest at the foundation of the Constitution of the United States of America. It holds that liberty is best preserved if the three functions of government – legislation, law enforcement, and adjudication – are in different hands. The modern idea of separation of powers is to be found in one of the most important 18th century works on political science, the Baron de Montesquieu’s The Spirit of the Laws (1748), which states that: 

“Political liberty is to be found only when there is no abuse of power… But, constant experience shows us that everyman invested with power is  apt to abuse it, and to carry his authority as far as it will go … To prevent this abuse, it is necessary from the nature of things that  power should be a check  to power … When the legislative and executive powers are united in the same person or body … there can be no liberty; … Again there is no liberty if the judicial power is not separated from the Legislative and the executive… There would be an end of everything, were the same man or the same body, whether of the nobles or of the people to exercise all three powers.”   

The Industry Qua Bravery of the Nigerian Judiciary in the Days of Yore 

A Select Few Notable Cases Considered

Permit me to highlight just a few notable cases, wherein the Supreme Court displayed bravery, valour and industry: In the case of Esugbayi Eleko v Government of Nigeria  the Privy Council declared null and void and of no effect whatsoever, the deportation of the Oba of Lagos from his domain to an entirely different part of Nigeria on the basis that the Governor has no such power, in spite of the fact that the Governor then was vested with both executive and legislative powers. The court held thus:

“No member of the executive can interfere with the liberty or property of a subject, except on the condition that he can support the legality of his action before a court of justice.”

Some other cases the Supreme Court has acted bravely include but are not limited to: Doherty v Balewa;  E.O. Lakanmi v A.G. Western State & Ors,  Paul Unogo v Aper Aku & 2 Ors; Governor of Lagos State v Ojukwu; Obeya Memorial Hospital v Attorney-General of the Federation & Ors; Fawehinmi v Akilu; A-G. Bendel State v A-G. Federation & Ors.

The Bane Affecting the Independence of the Judiciary in Recent Years: Matters Arising

Dispensation of Justice in a Unitarised Judiciary

As at 1979, and up to November 1993, the State High Courts in Nigeria exercised unlimited jurisdiction on all matters, whether between citizens, inter se, in the respective States, or between citizens and governments of the various States or between governments of the States and Federal agencies therein. A case in point is when the Shagari-led Federal Government attempted to deport Shugaba Abdulrahman Darman in 1982; it was a Borno State High Court, sitting in Maiduguri that initially granted an injunction restraining the deportation exercise, before finally going into the merits of the case to prohibit the Federal Government from deporting the citizen.  The unlimited jurisdiction of the State High Court  was also depicted in – Barclays Bank v Central Bank of Nigeria; Bronik Motors v Wema Bank; and Jammal Steel Structures Ltd v Africa Continental Bank Ltd.  

The Plague of Forum Shopping

The plague of Forum Shopping is a reprehensible phenomenon, where courts of concurrent jurisdiction give conflicting judgements qua rulings, with more or less the same parties on the same subject-matter.  

The Court of Appeal in Ibori v FRN condemned the practice of forum shopping when it held thus:

“There is no provision in the EFCC Act, to the effect that it can pick and choose at will or randomly, which court to arraign and prosecute an accused person. Forum shopping is not a practice recognised or approved, under our laws. Indeed, it is frowned upon, regarded and rightly too, as an aberration and an undisguised wilful attempt to punish an accused person before a verdict of guilt is returned in his criminal trial. By no means and with whatever leverage should prosecution be converted to persecution, victimisation, discrimination, deprivation, open denial of fair hearing and an assault on well-defined principles of natural justice and the 1999 Constitution. You cannot take an accused person from Lagos to Gashua for trial just like that, without the law as your forte”.

Corruption 

Corruption is a cankerworm that has eaten deep into the fabric of our nation, bearing its poisonous, deadly and life-threatening fangs on every facet of our national life, including the legal profession. It is incontrovertible that corruption is a hydra-headed monster that is capable of bringing any society to its precipice, including the Judiciary, the third arm of government. Perhaps, apart from genocide (crime against humanity), there is nothing as lethal, pernicious and virulent as corruption in any society. 

Recently, a damning Report titled: “Nigeria Corruption Index: Report of a Pilot Survey” covering the period  2018 – 2019, which placed the Judiciary on top of the Nigeria Corruption Index was released by the ICPC through its Chairman, Prof Bolaji Owasanoye, SAN. The said Report stated in part thus:

“Six female Judges reported that they were offered N3,307,444,000 billion and five male judges reported N392,220,000 million…Overall, the justice sector had the highest level of corruption with a score of 63. The level of corruption in the justice sector was heightened by stupendously high amounts of money, offered as bribes to Judges by Lawyers handling high electoral and other political cases…The total amount of money reported by the Justice sector respondents as corruptly demanded, offered and paid between 2018 and 2020 was N9,457, 650,000”.

The devastating effect of a corrupt Judge on the society, could not have been more appropriately captured than that stated by Hon. Justice S.O. Uwaifo, JSC in his Valedictory Speech on 24th January, 2005 in condemning any Judge who is corrupt stated thus: 

“A corrupt judge is more harmful to the society, than a man who runs amok with a dagger in a crowded street. The latter can be restrained physically. But, a corrupt Judge deliberately destroys the moral foundation of society, and causes incalculable distress to individuals through abusing his office while still being referred to as honourable”. 

As stated in clause 40 of the famous MAGNA CARTA, 1215, Judges should be able to say with all good conscience and without any hesitation whatsoever, that “Nulli vademus, nulli negabimus, aut differemus rectum, aut justiciam” meaning “to no one will we sell (justice), to no one will we refuse or delay right or justice”.

The Way Forward Out  of the Doldrums for the Judiciary

Establishment of State Judicial Councils

The essence of establishing State Judicial Councils is to ensure that issues relating to recommendation, appointment, payment of salaries and punishment of Judges etc., are handled at the State level rather than over- burden the NJC with the herculean task of dealing with the said issues from all the courts in all the States of the Federation. The establishment of State Judicial Councils will require an amendment to the Constitution.

Meting out Stiffer Penalties on Corrupt Judges by the NJC

There is a need for the NJC to met out stiffer penalties including ozutright dismissal of errant Judges who engage in corrupt practices. There is no gainsaying the fact that keeping bad eggs in the system, will send a wrong signal to other Judges and the public. Late last year, three Judges of courts of coordinate jurisdiction were penalised by the NJC for granting ex-parte orders to the same parties on the same subject-matter. Two of the Judges were warned and estopped from being promoted for two years, while the third Judge was slammed with a five-year moratorium from being promoted. To my mind, the NJC should have wielded the big stick.  

Merit Based Appointments

Appointment of persons to the Bench must be merit based, and not politically influenced. Sections 231, 238, 250, 256 and 271 of the Constitution relating to the appointment/qualification of legal practitioners to various courts only states the number of years for any legal practitioner to be qualified to be appointed to the Bench of any of the courts. No reference is made, as to the required “character traits and depth of knowledge” expected of such a legal practitioner. I want to propose an amendment of the relevant provisions of the Constitution mentioned above, expanding the definition of qualification beyond the number of years the said legal practitioner is qualified. This is to prevent politicians from nominating/appointing their cronies, who are not qualified to the Bench. Persons to be appointed must be of unassailable integrity, character and sound learning.

Security of Tenure for Judges/Justices

There must be security of tenure for Judges/Justices, to enable them carry out their duties dispassionately as Judges/Justices without any fear or inhibition. The removal of Chief Judges of some of our High Courts for flimsy or no reason at all, must be nipped in the bud.  

Remuneration/Welfare of Judges/Justices

It is an open secret that Judges, both at the Federal and State level are underpaid, which makes them susceptible to accept or take bribes/kickbacks when offered by desperate politicians. The salaries and allowances of Nigerian Judges at the Federal and State levels, have remained static for nearly 15 years to date. The last time salaries of Judges were reviewed in the country, was by the “Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) (Amendment) Act, 2008’’, which came into force on February 1, 2007.  In June 2022, a letter duly signed by 14 Justices of the Supreme Court of Nigeria was all over the social media space captioned: “The State of Affairs in the Supreme Court of Nigeria and demand by Justices of the Court” and addressed to the immediate past Chief Justice of Nigeria, Hon. Justice Tanko Muhammad. In the said letter the eminent Justices were complaining about their poor welfare packages, and other sundry issues negatively affecting them in the discharge of their judicial duties. This is very embarrassing to say the least.  

An upward review of the remuneration/welfare packages is required urgently. I tried to no avail, to get the remuneration earned by Judges/Justices at the State and Federal level of the Nigerian Judiciary. However, in a few seconds, I was able to lay my hands on the earnings of Federal Judges of the United State Courts in the past 54 years (1968-2022), by doing a quick google search. Unsurprisingly, the data available on the website of the Federal Courts of the United States of America, showed an upward trajectory review of the earnings of the Judges of the US Federal Courts.

The Raid/Arrest of Judges/Justice in October 2016 and the Removal/Conviction of the CJN in 2019: Intimidation of the entire Judiciary must come to an end

The attack of the residences of some Judges/Justices in gestapo style by men of the DSS in October 2016, ransacking their homes at midnight in the process, in the search of hard currencies purportedly given to them as bribes, shocked the entire nation to the bone marrow. It caused a huge embarrassment to the legal profession. It was/is apparently clear that the Executive sees the Judiciary, not as a separate and distinct arm of government, but as a mere department under it. Also, the conviction of the then CJN, Hon. Justice Walter Onnoghen by the Code of Conduct Tribunal on the ground that he failed to properly declare his assets, was the final nail in the coffin. The legal profession was at its lowest ebb and is yet to recover from the assault suffered by it. These despicable attacks on the Bench must stop forthwith; our Justices/Judges must not be gagged. 

Abiodun Olatunji, SAN  Lagos

The Financial Autonomy of the Judiciary must be Guaranteed

The quest for the financial/judicial autonomy suffered a setback when the Supreme Court in Suit No: SC/CV/655/2020 – A.G. Abia & 35 Ors. v A.G. Federation of Nigeria by a split decision decided 6-1 to nullify Executive Order 10, vide which the Federal Government of Nigeria had sought in 2019, to give effect to Section 81 (3) and Section 121(3) of the  Constitution, with regard to the financial autonomy of the respective 36 States Judiciary and Legislature, which had been observed more in the breach by State Governments and their Governors. The Governors of the 36 States of the Federation had kicked against the Executive Order, describing the said Order as an aberration which inhibited their rights under the  Constitution. It is clear the Judiciary must go back to the drawing board, to find its way out of this conundrum.

Need for more Lawyers to get actively involved in governance, by seeking for elective positions in the Executive and Legislature

There is a need for more Lawyers in Nigeria to be actively involved in governance, by seeking for elective positions in the Executive and the Legislature. For instance, first world countries like the United States of America and Singapore have been piloted by lawyers. Lee Kuan Yew, who is regarded as the father of modern Singapore, was a Lawyer, ditto for the United States of America which has produced 26 Presidents (out of 46 Presidents in its history) who were Lawyers. Former President of South Africa, Nelson Mandela was a Lawyer. Curiously, Nigeria has not produced a single Lawyer as President. In the National Assembly, we have only a handful of Lawyers; yet it is purportedly supposed to have as its core mandate, the business of ‘law making’. How ironic!  

Promotion/Elevation of Judges should not be determined by the Executive

Conclusion

Sir David Roy Lidington KCB, CBE, a renowned British Politician who was the Member of Parliament for Aylesbury from 1992 until 2019. He stated thus:

“The rule of law and the independence of the judiciary underpin our democracy and lie at the heart of our way of life. They are the very cornerstone of our freedoms”

Abiodun Olatunji, SAN  Lagos