COURSING A NEW PATH: THE AUTONOMY OF THE NIGERIAN JUDICIARY AND THE PROSPECT FOR THE FUTURE

by Pelumi Akin-Ogunbiyi

ABSTRACT

Nigeria operates a Federal system of Government, exercising its powers through three distinct branches, more commonly referred to as arms of Government, namely; Legislature, Executive and the Judiciary. The Constitution of the Federal Republic of Nigeria¹ specifically delineates the threshold within which these branches operate and provides a platform for a healthy interplay for the exercise of the fundamentals in any democratic society; Separation and limitation of power, Checks and Balances, and Respect for the Rule of Law while emphasizing the supremacy of the Constitution².

The Nigerian Judiciary amidst the other two Arms of Government has been quite the subject of sinister and recurring institutional/procedural clogs; vices ranging from flagrant disobedience of Court Orders/Contempt, Executive high-handedness, financial dependence and insecurity are some of the challenges that have continued to plague this institution, robbing it of its credibility. Indeed, it was only a matter of time before the wheels of Justice would be brought to an abrupt halt.  This subject forms the fulcrum of this piece.

INTRODUCTION

Judicial autonomy in clear terms is defined as the independence of the Courts in the administration of Justice. It envisages an arm of Government that discharges its duties without fear or favor, continually assuring its populace of the supremacy of the rule of Law.

1. CAP C23 (NO 24, 1999)
2. S1 CFRN 1999.

The Judiciary has the cardinal obligation to administer equity, justice, fairness in the peaceful reign of any administration especially from frictions within a state. A Judicial system that is deficient and incompetent in discharging these socio-human developmental elements is one that inhibits sustainable development in the society. Globally, there are various socio-political factors that constrain the exercise of these fundamentals, each depending on its historical antecedent and its ever-evolving posture towards the attainment of justice. The scope of this piece is however the Nigerian Courts, its administration and its consequent effect on the populace it seeks to administer justice for.

THE JUDICIARY; THE COURTS AND THE PEOPLE

          The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary³.

The Judiciary has the sovereign authority to decide controversies as to rights to life, liberty and property. It further has the power to check the excesses of its own activities (Judicial reviews, Appeals) and that of the Executive and the Legislature. The magnitude of responsibility that the Judiciary shoulders in the real sense of it, encompasses all and sundry. This position is further backed by the Constitution of the Federal Republic of Nigeria⁴.

• United Nations Charter (Basic principles on the Independence of the Judiciary)
• S6 CFRN199

The dictates of the Rule of Law is clear. Its systems must be independent of undue external influences, undue external influence and executive high handedness, and the flagrant disregard for the Rule of Law. How then does one juxtapose this seemingly fundamental principle against the backdrop of the recurring harassments meted out to Judges in and out of the Courtrooms? 

On the 8^th of October, 2016, social media was agog with the news of the raid on the homes of Judges, two of which were Justices of the Apex court by the Department of State Security. Various arguments ensued mostly along the lines of sentiments and political affiliations, largely bereft of any intellectual rigor and the attendant effect of that action; very few bothered to ask, whether the mode and time of arrest was in conformity with the rule of Law or not? Quite unfortunate, the Executive neither bothered to pay recourse to Constitutional procedures i.e.  National Judicial Council nor consulted with the Attorney General of the Federation with its investigations in a bid to deal with allegedly erring officers. Such actions as enunciated have over time given security agencies the leeway to trample on the Judiciary and may embolden a new level of recklessness that the society may never be able to reverse.

         “Nobody is out to defend any form of “corruption”, but things must be done within the ambits of the law.⁵

The impression that the Executive holds of the Judiciary, whether right or wrong must not in any way be interpreted as demeaning as an institution, to do this is to sell the institution cheap and deny it of the respect of Nigerians, foreigners and the International community.

• ^{Daily post.ng 24th of November 2016.}

The Judiciary as an arm of Government needs the corporation of the Executive and the legislative arms of government, to harness a smooth ride on the wheels of governance. However, where any of the arms fails to give the expected support by disobeying Court Orders, the arena of governance will only invite chaos to the fore. The Nigerian democracy has suffered repeated disrespect, especially from the heads of executive arm in the form of willful disobedience of its Orders, contextually referred to as contempt amongst legal minds. In Ejembi v. A.G. Benue State⁶ contempt is defined as the “Action or inaction amounting to an interference with, or obstruction to, or having a tendency to interfere with, or obstruct due administration of justice”

A classic example was the installation of newly appointed Emirs/creation of four new emirates by the Kano state Governor, pending the determination of a motion on notice filed before the Court. The Governor went ahead to issue appointment letters and consequently, when confronted with the folly of that action, he was quick to jump on the train of ignorance, as though, ignorance was meant to absolve him of anything in the eye of the law. Another example was the case of Ibrahim v. Emein⁷ where the then Military Administrator of Niger State abused an order of the Court. Muhammed J.C.A, as he then was stated at page 337, (Paras B-H)

“I am of the firm view that for a nation such as ours, to have stability and respect for democracy, obviously rule of Law must be allowed to follow its normal course unencumbered” if for any reason the executive arm of government fails to comply with Court Orders, I am afraid that arm is promoting anarchy and executive indiscipline capable of wrecking the organic framework of the society, the corporate existence of Nigeria postulates the

• ^{(2003) 16 NWLR(prt 846) 337}
• ^{(1996) 2 NWLR (PRT 430)322CA}

Principle of co-operation between the three arms of government, where they work together in the same framework, then the Rule of Law shall prevail in that society. But where each selects to work in isolation and or in utter disdain of the other, then havoc wrecks the Society”

Some lawyers who are meant to be officers in the temple of Justice are no better on the issue of contempt. From filing frivolous suits, being discourteous to opposing counsel and employing all manner of tactics to delay the administration of justice. It should be noted that to seek to ridicule a judicial process because it has the coloration to be against you as a counsel, is to seek to ridicule and manipulate the system.

Finally, on the 6th of April, 2021 Courts across Nigeria embarked on a strike action by members of the Judiciary Staff Union (JUSUN); this comes from the clamor for Judicial Financial Autonomy. There can be no true Autonomy if the financial resources are still subjected to external determination by the Executives. The financial autonomy of the Nigerian Judiciary involves all the facets of financial and economic requirements that influence the work performance. Judicial members should be sufficiently remunerated i.e. salaries, allowance, sustainable modernization of working conditions and retirement benefits, these would help in improving the economic quality of life of the members of the judiciary.

• ^{(2006)15NWLR(PT.1001)P.198}
• ^{Global Issues Nigerian Laws. Contempt of Court: The potential for abuse. (Essays in honour of Hon. Justice saidu. pg 136.}

“Deciding officers should be independent in the full sense, from external direction by any political and administrative superiors in the dispensation of cases and inwardly free from the influence of personal gains and partisans or popular bias¹⁰”

By implication, the extra-Judicial influence that money has on the judicial functions/performance could be drastically reduced by the financial autonomy of the Judiciary. This would only strengthen the independence of the judiciary.

RECOMMENDATIONS AND CONCLUSION

From the ideas espoused, it is apparent that the Nigerian Judiciary is not free from the shackles of dependence occasioned by varying socio-political factors, it is also apparent that to forge a truly independent Judiciary, every other arm of Government must co-operate with the fundamental principles of the Rule of Law.

The Constitution of the Federal Republic of Nigeria should be amended to eliminate the impact/significance of the Executive and the Legislature in the financial remunerations of the Judiciary and even the appointment of judges.

There is no better time in our pursuit for procedural Justice to do this than now, it is healthy for our democracy and will mark the beginning of a milestone in the Administration of Justice in Nigeria, thereby, preserving the well-deserved integrity of our Judicial Architecture.