The Independence of the Judiciary in a Democratic Dispensation (Part 2)

Introduction

Last week we commenced this series with some operational definitions, today we shall continue and conclude on the definitions, and take a critical look at some cases – their good parts, deficiencies and worst case scenarios. Read on. 

Definition of Terms (Continues)

During the colonial and military regimes, the Executive always attempted to undermine the Judiciary, erode its independence and powers of coercion, and have a field day with illegality and impunity. On those occasions, the Judiciary always stood up courageously to uphold the rule of law. In Eshugbayi Eleko v Government of Nigeria the Judicial Committee of 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 ground, inter alia, that the Governor had no such power in spite of the fact that the Governor was then vested with both executive and legislative powers. It held:

“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”.

In Lakanmi & Another v A-G, Western State, the Supreme Court courageously declared null and void Edict No. 5 of 1967 promulgated by the Western State Government and Decree No. 48 and 45 of 1968 promulgated by the Federal Military Government, on the ground that they were ad hominem legislations. The legislations dealt with forfeiture of assets.  The Supreme Court held that the 1963 Constitution clearly provided for separation of powers between the Judiciary and the Executive, and that Decree No. 45 of 1968 was a clear usurpation of the Judicial powers of the courts.  Chief Rotimi Williams had then argued that the Decrees which named specific people and confiscated their property, were ad hominem and unconstitutional. The Supreme Court held that the legislation amounted to judicial rather than legislative acts, and struck them down. In reply, the Federal Military Government of General Yakubu Gown promulgated Decree No. 28 of 1970 to undermine the Judiciary. The Decree was audacious, and even brutal in its title:  “The Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970.” The Decree restated the sacredness and unquestionability of any Decree or Edict promulgated or purported to be promulgated by the Military government. But, the Adetokunbo Ademola-led Supreme Court at the time was not intimidated.

In Governor of Lagos State v Ojukwu Kayode Eso, JSC emphatically declared that:

“Under the Constitution of the Federal Republic of Nigeria, 1979, the Executive, the Legislature (while it lasts) and the Judiciary, are equal partners in the running of a successful government. The powers granted by the Constitution to these organs by Section 4 (Legislative Powers), Section 5 (Executive Powers) and Section 6  (Judicial Powers) are classified under an omnibus umbrella known under Part II to the Constitution as Powers of the Federal  Republic of Nigeria. The organs wield those powers, and one must never exist in sabotage of the other or else there is chaos. Indeed, there will be no Federal Government. I think, for one organ, and more especially the Executive, which holds all the physical powers, to put up itself in sabotage or deliberate contempt of the other, is to stage an executive subversion of the Constitution it is to uphold. Executive lawlessness tantamount to a deliberate violation of the Constitution”.

There are many  cases decided during the military era and in the democratic environment that underscore the relentless efforts by other arms  of government, especially the Executive to erode the independence and vibrancy of the Judiciary as a way of expanding their own frontiers of influence, unquestionability and impunity.

Since the Executive has considerable (if not total) influence over the wealth of the State and over the appointment of Judges, it continuously seeks to make the Judiciary dependent by starving it of funds, and by influencing the enthronement of mediocrity  on the Bench. Issues in independence of the Judiciary may thus, be broadly classified into three, vis, political independence, economic independence and intellectual independence.  Before looking at these issues in detail, we may take a look at the face of Nigeria’s Judiciary so that the issues can simultaneously be matched with the ease.   

The Case (The Good, The Bad, The Ugly)

“Since I made the order of the remand of the accused person last Thursday and up till about 10 minuets before I sat this morning, I have been under untold pressure and threat from many quarters urging me to arrive at a particular decision ever before I listen to the accused.  Let me make it that as a Muslim, the teaching of my religion is clear about death being the ultimate.  I am therefore, not bothered about any such threat.  I am, however, worried about the untold pressure coming, as it were, from unexpected quarters…  To continue with this case will…..be a breach of the solemn pledge I made when I became a Judge (i.e) to administer justice without fear or favour, and without ill-will or affection. In view of the foregoing, I hereby remit this case file to the Honourable Chief Judge for reassignment to another Judge”.

In this way, Honourable Justice Mashood Abass of the Oyo State High Court washed his hands off, like Pontius Pilate, of the trial of Otunba Iyiola Omisore and other accused persons standing trial for the murder of late Chief Bola Ige, SAN (Slain Attorney-General of the Federation). After the controversial withdrawal of the Judge, allegations of undue pressure, bribery, arm-twisting tactics, threats and promises directed against the Judge inundated the media.

Before, the breaking of this unpalatable story, a sordid allegation of bribery had been trailing the Election Tribunal that sat in Akwa Ibom State over the petition of Dr Imeh Umanah, against the election of the then incumbent Governor, Obong Victor Attah.

In Enugu State, matters came to a head when an Election Tribunal had to relocate to Abuja to complete its job, after alleging that Enugu State was no longer safe for its honourable members.  These are bad times for the Judiciary!.

But, in Anambra State, the State Chief Judge, Honourable Justice C. J. Okoli proved to be a pride of the Judiciary, when he smartly ‘made himself unavailable’ during the July 10, 2003 abduction of the Governor of Anambra State,  Dr Chris Ngige, by his political enemies. The House of Assembly had passed a motion asking the Chief Judge to swear-in the Deputy Governor as incumbent Governor, but the Chief Judge was not available to carry out the resolution. By that act, his lordship saved the Judiciary from being enmeshed in the dirty politics of the State, which almost consumed the other arms of government.

More than any other factor, the abuse of the ex-parte injunction by some Judges, has immensely contributed to the erosion of public confidence in the Judiciary under this democratic dispensation.  Most of the ex-parte orders granted under controversial circumstances, involved situations where the Executive was either the direct beneficiary, or had an interest which the public believed (rightly or wrongly) the Judiciary merely ‘co-operated’ to protect.  This perception is a dangerous omen for independence of the Judiciary, because justice must not only be done, but must be manifestly seen to have been done.

During this democratic dispensation, an Abuja High Court granted an ex-parte order stopping the national convention of the All Nigeria Peoples Party (ANPP) when preparation for the convention had already gulped millions of Naira, and party members had already converged at the venue in Abuja. Most Nigerians did not believe that the Judge was not acting in the interest of the rival ruling Peoples Democratic Party (PDP), given the controversial and damaging circumstances under which the order was made. The resulting outrage, cost the Judge his job.

Another, Abuja High Court made an order restraining the National Assembly from further deliberating on a Bill before it to amend the Independent Corrupt Practices and other Related Offences Act 2000. The Executive was interested in killing the Bill. The order was made in defiance of the trite principle of the doctrine of separation of powers, which precludes the courts from assuming jurisdiction over a Bill that has not become law. In articulating the position of the Court of Appeal on the question of Judicial interference in the lawmaking process, purportedly under Section 4(8) of the 1999 Constitution, Hon. Justice Mamman Nasir, P. said:

“though the courts have been given very wide powers under the subsection, the intention is not to authorise the Judiciary to interfere with the legitimate exercise of the powers of the legislature, or the procedure to be followed in such exercise at power given to the courts comes into action after the legislature has enacted the law…”.

A similar controversy trailed the ex-parte order given by the same Abuja Federal High Court, which directed the Independent National Electoral Commission (INEC) to issue a certificate of return to Chief Adolphus Wabara (PDP) as Senator representing the Abia South Senatorial Zone. INEC complied (apparently reluctantly) and Wabara became the President of the Senate the next day.   The source of the controversy was that, INEC had earlier declared Elder Dan Imo (ANPP) as the winner of the seat. As Ogbham-Emeka, a counsel in Mike Ozekhome’s Chambers observed about the controversy in ThisDay Lawyer,

“The question how the Abuja Federal High Court assumed jurisdiction over the matter and how the issue became one suitable for an ex-parte order raked up a lot of dust. When the dust subsided not a few people concluded that it was the court and not the electorate that gave Senator Wabara the Abia South Senatorial ‘mandate’.  But, that was not to be the end of the regime of such demonstrable judicial anarchy that force litigants to choose which court order to obey and which not to obey, a situation that spells doom for a regime of law and order”. (To be continued)

THOUGHT FOR THE WEEK

“A functioning, robust democracy requires a healthy, educated, participatory followership and an educated, morally grounded leadership”. (Chinua Achebe)