Securing the Independence of the Judiciary: The Way forward

By Abiodun Olatunji, SAN

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 JacksonINTRODUCTION

The above evergreen postulation of Andrew Jackson, a highly cerebral American lawyer, first-class general, and statesman of repute, who served as 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 akin to the iceberg which sunk the RMS Titanic Vessel in the North Atlantic Ocean on 15th April 1912 (on its maiden voyage from Southampton to New York with 2,200 passengers and crew on board), a vessel hitherto considered unsinkable.

The Nigerian Judiciary is at crossroads and has been unable to cross the ‘Red Sea’ of corruption, financial strangulation by both federal and state governments, widespread maladministration within the Judiciary itself etc., which have hindered it from successfully carrying out 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 funds needed to independently and effectively run its affairs, how can the rights of the citizens be adequately secured? The imagery of this rather sad and appalling situation is aptly captured by the English poet and author, Geoffrey Chaucer, in the General Prologue to The Canterbury Tales, wherein he quipped thus: “If gold rusts, what then can iron do?”

A nation without an independent Judiciary is not likely to enjoy either the rule of law or true freedom. The greatest proponent of the Rule of Law,  Professor A. V. Dicey, whose views on the doctrine remain the most globally accepted authoritative restatement stated thus: “…in the first place, the absolute supremacy or predominance of regular law, as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government.

Englishmen are ruled by the law, and by the law alone, a man may with us be punished for nothing else. It means again equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. The rule of law in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law of the land which governs other citizens or from the jurisdiction of the ordinary tribunals.”

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 every man 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.”

Mabury V. Madison: What breathes life into the United States Constitution?

It was the judgment rendered by Chief Justice John Marshall in the celebrated case of William Marbury v. James Madison that breathed life into the US Constitution thus, saving the American State from disintegrating. The effect of the evergreen judgment of the erudite and highly cerebral Jurist was succinctly captured in the words of Ian Mc-Dougall thus:

“With a persuasive stroke of a pen, Justice Marshall defined what ‘checks and balances’ meant in practice and he clarified the role of the Supreme Court of the United States in shaping our culture. Marshall confirmed that the US Constitution was the supreme law of the land and the Supreme Court was the final arbiter of all legal disputes regardless of the parties involved – in this instance a part of a co-equal branch of the US government. Marshall starts with a critical premise with which no one, other than those who would champion revolution, could argue – the Constitution is the supreme law of the land and, as such, the Constitution explicitly provides that the judicial power of the United States culminates in the Supreme Court whose power is expressly extended to all cases arising under the laws of the United States.”

In essence, even though it was the representatives of the pioneering 13  states of New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgina that created a Grundnorm for America, it was not until the decision of Chief Justice John Marshall in the celebrated case of Marbury v. Madison (supra) that the American revolution was triggered. Also, it was this decision that put in place a vibrant and irrepressible American Judiciary. It was the masterstroke verdict of Chief Justice John Marshall that gave an Attorney-General appointed by a sitting President who would institute criminal proceedings against the same President who appointed him, as evinced in the similarly celebrated case of United States v. Nixon, President of the United States.  (the Watergate scandal case).

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.,  Garba vs. the University of Maiduguri,  Fawehinmi v Akilu,  A-G. Bendel State v A-G. Federation & Ors. , Garba v Federal Civil Service Commission, Bello v A-G. Oyo State , Olaniyan v University of Lagos , Military Governor of Ondo State v Adewunmi.

Bane affecting the independence of the Judiciary in recent years — Matters Arising

Dispensation of Justice in a Unitarized Judiciary

As of 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.

Sequel to the above, unlike the 1979 Constitution which was truly federal in nature, as far as the jurisdiction of the State High Court was concerned, section 272(1) of the 1999 Constitution now subjects the jurisdiction of the State High Court primarily to section 251, which vests exclusive jurisdiction in the Federal High Court in relation to certain defined matters. It is pertinent to state that the entirety of section 251 of the Constitution constitutes relics of the military incursion into the Nigerian political space, particularly the emergence of General Sani Abacha’s administration in November 1993. The military administration of General Sani Abacha promulgated Decree No. 107 of 1993  to delimit the jurisdiction of the State High Court and expand that of the Federal High Court to include, amongst others, any matter or cause involving the Federal Government or any of its agencies.

The plague of forum shopping

The plague of forum shopping is a reprehensible phenomenon where courts of concurrent jurisdictions give conflicting judgments 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 recognized 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, victimization, 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.”

Other cases in which the ugly and retrogressive practice of forum shopping was condemned by the courts include but are not limited to: Dalhatu v. Turaki,   Dingyadi & Anor v. INEC (No. 1) (2010) 18 NWLR (Pt. 1224) 154 at 195-196, paras. E – G.

Corruption

Corruption is a cankerworm that has eaten deep into the fabric of our nation, baring 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 the 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 a period of 2018 – 2019, which placed the Judiciary on top of the Nigeria Corruption Index was released by the Independent Corrupt Practices and Other Related Offences Commission, ICPC through its Chairman, Prof. Bolaji Owasanoye. 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 devasting effect of a corrupt judge on 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 titled: May the Supreme Court never become an Undergrowth in condemning any Judge who is corrupt stated thus:

“A corrupt judge is more harmful to 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.”

The stench emanating from the level of corruption in the judicial space is heart-wrenching. 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 overburden the National Judicial Council 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 of the Federal Republic of Nigeria 1999 (As Amended).

Meting out stiffer penalties on corrupt judges by the NJC

There is a need for the NJC to mete out stiffer penalties including outright 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 general public. Late last year, three judges of courts of coordinate jurisdiction were penalized 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.

The American Judicial Disciplinary Example

Let us take a cue from the United States of America when in 2019 the jury convicted Rodolfo “Rudy” Delgado, 65, of Edinburg, following a six-day trial of one count of conspiracy, three counts of federal program bribery, three counts of travel act bribery and one count of obstruction of justice. As a State of Texas District Judge, Delgado conspired with an attorney from January 2008 to November 2016 to accept bribes in exchange for favourable judicial consideration on criminal cases pending in his courtroom. As part of the investigation, Delgado also accepted bribes on three separate occasions in exchange for agreeing to release three of the attorney’s clients on bond in cases pending before his court. The first two bribes totalled approximately $520 in cash and the third bribe – in January 2018 – totalled approximately $5,500.

The Assistant Attorney-General of the State of Texas, Brian A. Benczkowski of the Justice Department’s Criminal Division had this to say about the action of the convicted judge: “Rudy Delgado used his position to enrich himself… Delgado’s actions unfairly tarnish all his former colleagues. No one – especially a judge – is above the law. Corrupt judges erode the confidence we have in our judicial system, but this verdict goes a long way in restoring that confidence.”

Merit based appointment

Appointment of persons to the Bench must be merit-based and not politically influenced. Sections 231, 238, 250, 256 and 271 of the Constitution of the Federal Republic of Nigeria (As Amended) relating to the appointment/qualification of legal practitioners to the Supreme Court, Court, Court of Appeal, Federal High Court, High Court, FCT and High Court of a State respectively only stated the number of years for any legal practitioner to be qualified to be appointed to the Bench of any of the courts. No reference was made as to the required “character traits and depth of knowledge” expected of such a legal practitioner. I want to propose an amendment to 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.

Appointment of Cerebral High Court Judges to the Supreme Court

It is pertinent for the Judiciary to revive the practice of appointing brilliant, cerebral, diligent Judges of sound character from the High Court Bench straight to the Supreme Court. Examples abound of industrious, sound and cerebral Justices who set the Supreme Court alight with their forensic and evergreen judgments, and who were appointed from the High Court Bench to the Supreme Court. – Hon. Justice Kayode Eso, JSC, CON, Hon. Justice Chukwudifu Oputa, JSC, CFR, Hon. Justice Chukwunweike Idigbe, JSC, Hon. Justice Ebenezer Babasanya Craig, Hon. Justice Mohammed Bello, JSC, GCON, Hon. Justice Anthony Aniagolu, JSC, Hon. Justice Andrew Obaseki, JSC and Hon. Justice Saidu Kawu. Their noteworthy contributions to the expansion of the frontiers of our jurisprudence through their sound judgments cannot be washed away by the footprints of the sands of time.

The American Example- Chief Justices of the United States Supreme Court without prior judicial experience

In the United States of America, 9 out of 17 Chief Justices had no prior judicial experience before their appointment as Chief Justices of America at different times in the American judicial trajectory. They include John Marshall, Roger Taney, Salmon Chase, Morrison Waite, Melville Fuller, Charles Evans Hughes, Harlan Fiske Stone, Earl Warren and William Rehnquist.

Supreme Court of Canada

In the Supreme Court of Canada, only one out of nine justices of the Supreme Court of Canada has no prior judicial experience – The Honourable Suzanne Cote who was prior to her appointment to the Supreme Court of Canada was a Partner at Osler, Hoskin & Harcourt LLP.

Security of Tenure for Judges/Justices

There must be the security of tenure for Judges/Justices to enable them to 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.

The American Example- Security of Tenure for Federal Judges & Justices the Supreme Court

While the executive and legislative branches are elected by the people, members of the Judicial Branch are appointed by the President and confirmed by the Senate. Federal judges can only be removed through impeachment by the House of Representatives and conviction in the Senate. Judges and Justices serve no fixed term — they serve until their death, retirement, or conviction by the Senate. By design, this insulates them from the temporary passions of the public, and allows them to apply the law with only justice in mind, and not electoral or political concerns.

Supreme Court of the United States

The Supreme Court of the United States is the highest court in the land and the only part of the federal judiciary specifically required by the Constitution.  All Justices are nominated by the President, confirmed by the Senate, and hold their offices under life tenure. Since Justices do not have to run or campaign for re-election, they are thought to be insulated from political pressure when deciding cases. Justices may remain in office until they resign, pass away, or are impeached and convicted by Congress.

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 accepting or taking 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 levels 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 to check for the Annual payment of Federal Judges of the United States Court between 1968-2022  (https://www.uscourts.gov/judges-judgeships/judicial-compensation). 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 unceremonious removal/conviction of the Chief Justice of Nigeria in 2019- Intimidation of the entire Judiciary must come to an end

The attack on the residences of some Judges/Justices in Gestapo style by men of the DSS in October 2016, ransacking their homes in the process in the search of hard currencies purportedly given to them as bribes at midnight shocked the entire Judiciary 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 Chief Justice of Nigeria, Hon. Justice Walter Onnoghen by the Code of Conduct of the 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.

The Financial Autonomy of the Judiciary must be guaranteed

The quest for 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 1999 Constitution (as amended), 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 Chief Executives. 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 1999 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 no gainsaying the fact that 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 and who positively turned around the fortunes of 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.  A former President of South Africa, Nelson Mandela, who was regarded as a world citizen and widely respected 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 the National Assembly is purportedly supposed to have as its core mandate the business of ‘law making. How ironic!

The United States of America for instance, in the last Congress, 39 per cent of the House members were lawyers, along with 57 per cent of U.S. senators. Four new lawyers were elected to the Senate and 16 were elected to the House in 2014, according to a list published by the National Law Journal. 169 Members of the House (38% of the House) and 57 Senators (57% of the Senate), held law degrees. 19 House Representatives have doctoral (Ph.D. or D.Phil.) degrees. The Congressional Research Service notes that the vast majority of Members (95 per cent) had an academic degree: 168 Representatives and 57 Senators had a law degree. Of these, five (three Representative and two Senators) also hold a Master of Laws (LL.M.) degree.

Promotion/elevation of Judges should not be determined by the Executive.

CONCLUSION

I will close this paper with the instructive words of 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”

Source: DNL