Strengthening the Judiciary: Independence, Bias and Administration

Fabian  Ajogwu

The importance of our judicial system goes beyond justice administration simpliciter and touches on political institutions and policies which help to shape society. Citizens frequently turn to the judiciary to protect and enforce their rights. The workload of judges has increased because of the changing times and development of technology and has become far more complex. It has also become evident that the qualifications required for the proper exercise of the judicial role now go beyond the basic legal knowledge and skills of legal interpretation that was once sufficient (UNODC).

The evolution of the judicial role has led to its increased importance in political, social, and economic spheres. It has induced reforms in many countries intended to meet these new challenges through innovations in the judicial system that are crucial for the quality and efficiency of its performance. To strengthen the judiciary, there must be a proper balance between the independence of the Judiciary, security of judicial officers, judicial management, and judicial accountability, as all these factors are crucial for the proper working of the judicial system in Africa.

An independent, protected, strong, and respected judiciary is indispensable for an impartial administration of justice in a democratic State. Judicial officers should actively participate in establishing, enforcing, maintaining, and observing a high standard of conduct to preserve the integrity and respect for the independence of the Judiciary.

Bearing in mind the need for judicial management to enhance an impartial, independent, and respectable judiciary, the Nigerian Judicial Council established its Code of Conduct for Judicial Officers to provide a minimum standard to be observed by judicial officers to ensure sound ethical and professional standards in the discharge of their duties. The Code of Conduct is not  restricted to Judges but also provide minimum standard to guide the conduct of staff of the Judiciary and court officials in the discharge of their duties.

Judicial Bias: To Do Justice Without Fear or Favour

The impartiality of judges, expressed in the Latin maxim nemo judex in propria causa interpreted to mean that ‘no man should be a judge in his own cause’, and the right to fair hearing are the tenets of natural justice (E S Nwauche, 2004). The principle of Natural Justice is recognised by provisions of the Constitution across African countries and the world.

Article 6 (1) of the European Convention of Human Rights and Fundamental Freedoms 1950 as incorporated in the Human Rights Act 1988, applicable in England since 2000 provides that, “… everyone is entitled to a fair hearing… by an independent and impartial tribunal established by law” (E S Nwauche, 2004) in the determination of their civil rights and obligations.

Judicial independence and the impartiality of judges are closely knitted in that they operate to sustain public confidence in the administration of justice. Wherever public confidence in the Judiciary lags, the popular perception is that judges are biased in their decision-making. Such bias has been attributed to various factors, including socioeconomic inequality, the rural-urban divide, ethnicity, and gender discrimination. Significant reform efforts have thus been targeted toward tackling the root causes of discrimination in the courtroom, including domestic and international programs designed to enhance access to justice for marginalised groups and reduce delays in judicial workloads (F. Shen-Bayh, 2022).

Bias can be either actual, or apparent bias. Actual bias is not tough to prove in practice, this is a situation where the judge has pecuniary or other interest in the outcome of the litigation whereas apparent bias, deals with the perception of a reasonable man in relation to how the judge has conducted proceedings in a matter i.e the judge’s conduct or behaviour, their interests, affiliations or their allegiances. Generally, there are two tests to be applied in determining apparent bias: the “reasonable suspicion of bias” test and the “real likelihood of bias” test. However, jurists believe that the differences between these two tests are mainly semantic as they operate similarly.

The right to a fair hearing entails that individuals should not be penalised by decisions affecting their rights unless they have been given a fair opportunity to present a response to the case against them. The mere fact that a decision affects rights or interests of an individual is sufficient to subject the decision to the procedures required to the natural justice test.

The judicial system must remain impartial and unbiased in the administration of justice. Oliver Wendell Holmes defines the law as the prophecies of what the courts will do in fact and nothing more pretentious, this definition is represented in the doctrine of Stare Decisis and judicial precedence. Hence Judges should be more concerned with doing justice and should be guided by the principles of natural justice; fair hearing, equity and good conscience, repugnancy to natural justice, and that no man should be a judge in his case. In doing justice, we should be guided by the fact that our decisions will influence generations to come; hence a good legacy should be left behind.

It is immutable that the problem with the human being is that nothing is perfect, yet Justice Oputa and Justice Karibi-Whyte (Justices of the Supreme Court of Nigeria) held to the belief “that the object of rewarding judicial demeanour is not just the pursuit of some form of sinlessness, but to become somewhat angelic”. (Amb. G. Igali, Ph.D 2020).

Independence of the Judiciary

In administering justice, the independence of the Judiciary is an essential element. It is a sacrosanct because it goes hand in hand with the doctrine of separation of powers. However, the doctrine of separation of powers is difficult to realise as several impediments stand in the path of Judicial Independence.

For example, in Nigeria, the budgetary allocation to the Judiciary is determined by the Executive at the Federal or State level, respectively. Another example is the amendment of laws by a few state governments to exert influence over the Judiciary. For example, in Rivers State, the power to assign cases now lies in the hands of the Chief Registrar instead of the Chief Judge of the state.

These instances of issues that hamper judicial independence have led to clamours by stakeholders in the judiciary to reform the judicial system. The 21-day strike embarked on by the Judiciary Staff Union of Workers (JUSUN) demanding judicial independence of the Judiciary and financial autonomy of the state judiciary is notable (F. Iwuchukwu, 2014). This occurred because of an awareness of the fact that to uphold the rule of law and ensure that the functions of the judicial officers are carried out like well-oiled machinery, judicial independence must be guaranteed.

From the process of nomination, selection, appointment, remuneration, discipline, promotion, dismissal, and retirement of all judicial officers, there must be no room for bias, preferential treatment, or subjective opinion. Another way of ensuring judicial independence is by granting life tenure to Judges, which frees them to exercise their judicial discretion justly. The twin pillars of judicial independence, i.e., security of tenure and conditions of service must be deeply rooted in the foundation of society.

The need for the independence of the Judiciary was reiterated by Gani Adetola-Kazeen, SAN where he remarked that the executive arm of government should have less power in the appointment of judges and advocated that the Judiciary should be in control of its own resources to avoid any form of influence or interference in the course of justice (I. Uwaleke, Y. Ayobami-Ojo, 2014).

Administration of Justice in the Face of Terrorism

There are numerous causes of violence and insurgency in Africa. The continent is vast with tremendous cultural and language differences, and the only truly shared experience is a history of European colonialism. The most notorious terrorist activity in West Africa during the 21st century has been in Nigeria due to the activities of the terrorist group Boko Haram, especially in the Northern region (Dr A. Obe, 2021).

The incessant massacre, bombings, and mass kidnappings in African Countries have hampered the administration of justice. Court proceedings have been put on hold for fear of loss of life and destruction of buildings. This is, therefore, a crucial topic for discussion because a failure to address this lingering issue will pose a clog in the efficiency of the administration of justice. 

Conclusion

The administration of justice by the judiciary, which is not only faced with issues caused by the Covid-19 pandemic, racial justice, polity issues, election issues, and economic challenges, has placed a heavy burden on the judiciary as the court is an institution that relies on reason, not emotion.

The burden placed on the Judiciary in the administration of justice supersedes the basic legal knowledge and skill of legal interpretation required to discharge its duties; cooperation is required from the other arms of government (the Executive and the Legislative) to ensure the independence, impartiality, integrity, and security of the judiciary.

• Prof. Ajogwu, a Senior Advocate of Nigeria (SAN), is the Founder, Kenna Partners.