Independence of the judiciary: Hope rises as debate goes on THE principle in which true democracy thrives is on proper separation of powers of the three arms of government. The independence of the judiciary is sacrosanct. It cannot be compromised for any reason. But events in recent times suggest this independence is being threatened in so many ways. For instance, the judiciary does not get its budget directly from appropriation of the National Assembly. It must go cap in hand to the Executive either at the federal or at the state level to ask for its allocation. Quite recently, some state governments are amending their laws all in a way to control the judiciary. In Rivers State for instance, there is now an existing law that vests in the chief Registrar the power to assign cases, a job that was hitherto performed by the Chief Judge of the state as the head of the state judiciary. In Abia State, the House of Assembly passed a resolution recently urging the governor to sack the State Chief Judge for a flimzy excuse. Governor Theodore Orji in his wisdom having been prevailed by the Nigerian Bar Association (NBA) turned down that request. The crisis that is rocking Nasarawa State is as a result of alleged influence of the governor on the Chief Judge of the state in constituting members of the panel that tried the governor on charges for his impeachment. We can go on and on to enumerate the threats to judicial independence. Stakeholders in this third arm of government have over the years been clamouring for independence of the judiciary including financial autonomy. It further finds expression in the concept that the judiciary needs to be kept away from the other arms of government. That is, courts ought not to be subjected to improper influence from the other arm of government, or from private or partisan interests. Judicial Independence is vital and important to the ideals of separation of powers. Nigeria judiciary comprised men and women of integrity that interpret and apply the law that governs the society. Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law. To maintain and enhance confidence in Nigerian legal system, there is need for judicial independence. The judiciary must be independence through different means of judicial selection, or appointment of judicial officers, magistrates and judges. Another way to promote judicial independence is by granting life tenure or long tenure for judges, which ideally frees them to decide cases and enter rulings according to rule of law and judicial discretion, even if those decisions are politically unpopular or opposed by powerful interests. In many countries, the ability of the judiciary to check the legislature is enhanced by the power of judicial review. This power can be used, for example, by mandating certain action when the judiciary perceives that a branch of government is refusing to perform a constitutional duty, or by declaring laws passed by the legislature unconstitutional. An independent, fair and impartial judiciary is indispensable to our system of justice. Judges ought to maintain the dignity of judicial office at all times, and avoid impropriety and the appearance of impropriety in their professional and personal lives. They ought to aspire at all times to conduct themselves in such a manner that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence. Independence of the modern judiciary has many facets. The external factors that tend to undermine independence are well recognized by the judiciary but perhaps not so well recognized by the political branches of government or by the public. Some of the structures that preserve independence are well established. We need not canvass the twin constitutional pillars of judicial independence - security of tenure and conditions of service that the Executive cannot touch - except to say this: if either of these pillars is eroded, in time society will pay an awful price. Judicial independence is the priceless possession of any country under the rule of law. But in the ultimate, judicial independence rests on the calibre and the character of the judges themselves. Judicial independence is not a quality that is picked up with the judicial gown or conferred by the judicial commission. It is a cast of mind that is a feature of personal character honed, however, by exposure to those judicial officers and professional colleagues who possess that quality and, unfortunately rare occasions, by reaction against some instance where independence has been compromised. The inteference of the other arms of government in this country has damage the reputation of the judiciary, it has brought judiciary to mud. For example the issue of judiciary in Adamawa where non judicial officer is empowered to oversee the affair of judiciary. Not only that in another state where Chief judge was summoned by the state House of Assembly to appear before it. However, Chief Gani Adetola-Kazeem in his view said, “Over the years, the principle of separation of powers, The Executive, Legislature and Judiciary. Each of this arms is expected to complement the other. Also each of them is expected to be separate from the other and be independent of the other. Over the years, we found that the Executive have assumed so much power. They exercise so much authority over other arms of government that some of the times judiciary is in a fix as to what to do. They don’t have independence in the appointment of judges, they don’t have independence in terms of funding, they don’t have independence in terms of what they are able to do apart from sitting in court and writing the judgments and all this pinch upon one and other. You have to look at other countries where judiciary is not independent it cannot perform to its optimum. It supposed to be the last hope of common man and therefore it is important that it is independent in the dispensation of justice. It must able be to perform, to control its own resources even though the resources come from the same pool, when it come from the consolidated revenue fund. But in a situation where this is under the control of an authority of the Executive for example, they just dole it out the way they want. This affects the independence of the judiciary. In the first republic, each of the regions was autonomous of the other both Executive, Legislature and the Judiciary. They appointed their own judges and they did what they liked. NJC was born to be an independent umpire whereby at the federal level is attached to the supreme court, that is why Chief Justice of Nigeria is the Chairman of the NJC and what he or she does essentially is to screen candidates who are being suggested or being nominated at the high court throughout the federation whether at the state high court level or federal level to assure itself that such candidate did not have political interest or sympathy that would affect his being independent. Also when it comes to removal, NJC has a role to play to ensure that a judge is not just victimized because of it has given one judgment against one government or the other. That is the essence of having the NJC. You will also find out that even the control of the funds of the judiciary is also centralized for example in terms of payment of retirees, the funds now come from the consolidated revenue to the NJC which now pays all the judges of higher courts of record, that is, the high courts, Appellate courts. They are now paid directly by the NJC but state has some influence, they control the votes, they pay allowances to the judges apart from basic salary paid by NJC. The states pay allowances to the judges. They also control the capital vote of NJC. You want to build courts, you want to renovate courts, you want to provide facilities in courts, the votes are under the control of the Executive of the state and that is where the problem arises. A government that is overbearing will hold on to this funds and the head of the courts, that is the Chief judges of the various high courts quite often will have to go cap in hand to the governor or whoever the executive of the state is to bid for funds. Once you have over bearing government that wants its bidden to be done the judge will either have to bend to do whatever the executive wants before they can have fund released to them or before they can find court equipped or provide many other amenities or many other things they want to do. That is why now people are clamoring to let whatever vote is for judiciary whether payment of allowances, for capital vote to develop the court go straight from consolidated revenue fund to them. It could go through NJC as other payments and let the bulk go straight from NJC to the courts, that way the court will be completely insulated from any political influence. And that all citizen will be assured,political party will be assured, anybody that has something to do with the judiciary, with the court system will be assured that he can get justice undiluted. That is the essence. So this is the clamour now, the fight for independence of the judiciary has been on for years and it has been half won to a point with the creation of body like NJC and other things that have been put in place. “ Also, Bar. Ikechukwu Ikeji said, “ Independence of the judiciary requires the principle of separation of powers balanced by the principle of checks and balances. A situation where the executive arm of government always has its preferred candidates for different judicial positions does not augur well for the independence of the judiciary. Where judges’ salaries are controlled by the executive is not good enough.” So also one of the newly appointed Senior Advocate of Nigeria (SAN), Sylva Ogwemoh is of the view that ‘’The major function of the judiciary in a democratic setting is the interpretation of laws devoid of any unnecessary interference by any other arm of government or from private or partisan interests. The judiciary being the last hope of the citizen must uphold the Constitution and other Laws of the land at all times and must courageously challenge it when the occasion presents itself particularly when the executive actions exercised outside the confines of the constitution and other extant laws of the country are thrown up. To be able to do this effectively, the judiciary must be free and independent. For the judiciary to be free and independent, each Judge must enjoy both personal and substantive independence. Personal independence means that the terms and conditions of judicial services are adequately secured by law so as to ensure that individual judges are not subjected to executive control. A judge is subject to nothing but the law and commands of his conscience.”
Posted on: Wed, 17 Sep 2014 21:51:19 +0000
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