By Mike Ozekhome

INTRODUCTION

The judiciary is popularly referred to as the last hope of the common man. Yet, to maintain the attributes that qualify it for this populist appellation, the independence and integrity of the judiciary must be jealously guarded and sustained so as to continue to attract the confidence of the said common-man in the ability of the judiciary to do justice to all without fear or favour.

Indeed, the title of this paper becomes urgently relevant in view of the difficult times the judicial institution as a whole has been going through in recent times, as regards its integrity and retention of public confidence. Never in Nigeria’s history (not even during the repressive and tyrannical era of military juntas) has the judiciary suffered such high degree of public bashing, ridicule and contempt as it has in recent times.

Of late, the Judiciary has come under intense criticism and experienced serious erosion of public confidence, so much that its indispensable independence and impartiality have been put to serious doubt by an ever-increasing cross section of Nigerians. While some of the events that gave rise to these doubts were largely misunderstood by the public, the truth remains that some events have shown an even more urgent need to safeguard and defend the political, fiscal/economic and intellectual independence of the Judiciary in this dispensation. The imperatives for an independent and impartial Judiciary in a democracy are great and pressing. This is bolstered by the general feeling and expectation of greater freedoms in a democracy. The protection of human rights is implicit in open democracy. The Judiciary is the greatest bastion for protection of human rights.

The aim of this article is not to place the Judiciary in the dock and try it for the alleged ‘offences’ for which it has recently been perceived (rightly or wrongly) to have committed. Consequently, we would do no more than merely restate some of the events which in the opinion (however flawed) of most Nigerians seem to signify a compromise of its independence and integrity. Our own value judgment would be minimal. We therefore enter a caveat that those who expect the main focus of this paper to be on trashing the judicial institution may be a little bit disappointed at the end. The paper shall conclude with a focus on the role of an independent Judiciary in Nigeria’s nascent democracy.

DEFINITION OF TERMS

There is hardly any term than can be properly and exhaustively defined (strictu sensu). We shall however adopt dictionary definitions of our principal terms as working definitions to aid clarity of analysis.

The noun ‘independence’ is derived from the adjective ‘independent’ which connotes the following attributes:

“Free from the authority, control or influence of others, self-governing… self-supporting, not dependent on other for one’s living, not committed to an organized political party…not subordinate…not depending on another for its value.” (Oxford Dictionary).

We now turn to the key and operative word, the ‘Judiciary’. The term has been defined as:

“That branch of government invested with the judicial power; the system of courts in a country; the body of judges; the bench. That branch of government which is intended to interpret, construe and apply the law.”
It has however been argued at various times that this definition (as exhaustive as it might appear) is restrictive. It has been suggested that a working definition of the term ‘Judiciary’ may:

“Include the messengers, clerks, Registrars, Bailiffs, the Police, the other security forces, the members of the Bar and such persons that have anything to do with the Judiciary and this will ultimately include the generality of the populace.”

For the present purposes however, it would be something of a stretch to suggest that perhaps the generality of Nigerians are part of the Judiciary. Nwabueze agrees with the wide definition of the term, but sees the usage as a somewhat permissible ascription of terminology as regards its composite brother term, the Judicature. According to the learned author:

“There is a certain amount of looseness in the use of the word ‘Judiciary’. In its strict meaning it refers to the ‘judges of a state collectively, but it often (loosely) used interchangeable with ‘judicature’, a wider term embracing both the institution (the courts) and the persons (the judges) who compose it.”

‘Democracy’ is still best known with its Lincolnian definition as ‘government of the people, for the people and by the people’. It is however important to state that our type of ‘democratic dispensation’ has not qualified to be simply referred to as democracy (when the word is stretched to its utilitarian of limits). At best, Nigeria is passing through the process of democratization from years of military dictator ship to civilian governance. Being a process, democratization primarily embraces the steps that go into internalizing the norms of democracy after the institution of a democratically-elected government. In this connection, following democratic elections, there comes a period where governments, institutions and the populace imbibe the democratic culture and principles, and gradually drop autocratic and uncivilized tendencies. This is the cross-roads at which the contemporary Nigeria finds itself. Nwabueze, therefore, sees democratization as:
“The infusing of the spirit of liberty, democracy, justice, the Rule of Law and order amongst the people.”

The point we arrive at is that Nigeria’s Judiciary (which involves both the system of courts and the judges has a pivotal role to play in this democratic dispensation in upholding the rule of law and holding the balance between constitutional and unconstitutional acts. Democratic practice in a limited government being essentially a regime of adherence to constitutionalism, legality and the rule of law, the presence of an independent Judiciary is a sine qua non for successful democracy. An independent Judiciary acts like a compass in complex and turbulent voyage of democracy. Its performance or lack of it determines whether or not the ship of state anchors safely.

If the word ‘independence’ still connotes freedoms from the authority, control or influence of others, and if it still points to an institution which is self-supporting, (not dependent on others), not committed to a political party, not subordinate and not depending on any person or other institution for its value, then the Nigerian Judiciary must politically, economically and intellectually be seen to be self-reliant in order to be called an independent Judiciary. It has been urged (albeit ad ignoranta) that the doctrine of separation of powers does not presuppose independence of one arm of government from the other. This flawed argument is usually impressively hinged on the doctrine of checks and balances. It was used extensively against the Legislative arm in their efforts to operate independently of the executive arm during the first (6) six years of return to democracy. It is, however, submitted that the constitutional doctrine of checks and balances does not derogate from the doctrine of separation of powers.

It is not intended to confuse the doctrine of separation of powers with the issue of judicial independence. Whilst it is right to argue that the latter is a fall-out of the former, it is important to note that the issue of judicial independence has an additional constitutional, political and moral importance in our national life. This is because after the Constitution of the Federal Republic of Nigeeria 1999 has successfully separated the powers of government in sections 4, 5 and 6 thereof, it goes ahead to provide unequivocally that:

“The independence, impartiality and integrity of courts of law, and easy accessibility thereto shall be secured and maintained.”

It can easily be seen that judicial independence entails, but is not limited to, separation of powers. Thus in construing the meaning of the expression ‘independence of the Judiciary’, Nwabueze argues:

“We tend to think that the independence of the Judiciary means just independence from the legislature and the executive. But it means much more than that. It means independence from political organs of government or by the public or brought in by the judges themselves through their involvement in politics.”

It is unarguably that the most prominent issue in judicial independence is the freedom of the Judiciary from any form of political influence, whether exerted from outside or self imposed. Another learned writer sees judicial independence to mean:

“The independence of the judges to think freely and act freely according to the dictates of their conscience in line with the provisions of the law without any let or hindrance or fear of repercussion from any quarters whether from the legislative, Executive, individual members of the public or even from the ghost of the individual judge’s past, present or future.”

Unless the Judiciary is aggressively shielded from political influence from the other two arms of government, especially the Executive, the chances of such influence being actually exerted over it are indeed bright. The Constitution made both the Executive and the Legislature generally amenable to the jurisdiction of the ordinary courts. Accordingly, the judicial power vested in the courts by the Constitution extends:

“To all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”

It is natural for a branch of government which wields a preponderant of coercive power and exercises power over the purse, (but still has the possible sanction of the Judiciary lurking over it), to attempt to stultify, hijack or control the machinery of the Judiciary. That is the only way, in a democracy, the government can check the ‘menace’ and interference, of the courts and thereby amass more powers and secure impunity unto itself in defiance of constitutionalism and due process.

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 Vs. Government of Nigeria 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 inspite 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 Vs. 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 Judicial and the Executive and that Decree No. 45 of 1968 was a clear usurpation of the Judicial powers of the courts. Chief Rotimi Williams has then argued that the Decree which named specific people and confiscated their property were ad hominem and unconstitutional. The Supreme Court held that the legislations 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 Vs. Ojukwu (1986) 1 NWLR (pt. 18), 621 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 under 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, unquesitonability 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, viz, 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 minutes 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 re-assignment to another judge.”

In this way, Honourable Justice Mashood Abass of the Oyo State High Court washed his hands like Pontius Pilate, 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. 16

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 attesting 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 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 which 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 law making 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 authorize 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 trailing the ex parte order from the same Abuja Federal High Court directing the Independent National Electoral Commission (INEC) to issue certificate of return to Chief Adolphus Wabara (PDP) as Senator representing the Abia South Senatorial Zone. INEC complied with protest (?) 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 on the controversy in ThisDay Law,

“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 htat 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’20

Another public outrage attended the ex parte order granted by a Lagos High Court against the Nigeria Labour Congress (NLC) restraining it from calling out workers on a planned nationwide strike to protest the unconscionable hike in price of petroleum products by the Federal Government. An Abuja High Court had refused the application because there was no genuine case of urgency. The Federal Government went down to Lagos and surprisingly a Lagos High Court, which had co-ordinate jurisdiction with the Abuja High Court granted the order. The NLC president, Adams Oshiomhole had to tell the whole world that the order was not binding on the NLC as it was obtained from the “Black market”. The strike went on as planned and the image of the Judiciary was worse off and its independence seriously put in question.

An Abuja Federal High Court made an order, ex parte restraining the governor of Anambra State Dr. Chris Ngige from parading himself as governor. The order (which apart from the questionability of the perceived extreme urgency attending it) could not be reconciled with the state immunity enjoyed by the governor under the constitution21. The governor had to borrow the “Black market” appellation from Oshiomhole. Yet some other controversial and outrageous ex parte orders were dished out by the same court on the Anambra crisis alone.
At the heart of the issue of abuse of ex parte order (especially in political issues) is the attendant erosion of public confidence in the independence and impartiality of the Judiciary. The ugly implications were rightly summed by a writer as follows:

“In the theser instances of judicial recklessness there was always the palpable belief that unseen hands moved the court to issue such controversial ex parte orders. That is the meaning of the ‘black market’ reference made by Oshiomhole and Ngige. None of htem was prepared to obey a ‘black market’ order obtained outside the ‘official market’! And they never obeyed and nothing happened!22

Abuse of ex parte injunction aside from the grave implications it has on the independence of the Judiciary, is also capable of wide scale socio-political disaster as was the case with the annulment of the June 12 Presidential Election. The Judiciary set the key note of the disaster that followed when an Abuja High Court presided over the late Hon. Justice Bassey Ikpeme made an ex parte order restraining the conduct of the presidential election 23.

In the popular case of Kotoye V C.B.N 24 the Supreme Court settled the principles governing the grant of ex parte injunction. Principally, the order can be made,

(a) When there is a real urgency but not a self-induced or self-imposed urgency.

(b) Where it is necessary to preserve the res which is in danger or imminent danger of being destroyed, and

(c) Where there is a real impossibility of bringing the application for such injunction on notice and serving the other party.

When these factors are inapplicable, a wise judge that imbibed good judicial milk would exercise his/her discretion by turning down the application and asking the applicant to put the respondent on notice. The institution has always stood against the menace of this abuse over the years. The former Chief Justice of Nigeria, Hon. Justice Mohammed Bello once bemoaned,

“indeed, there is urgent need among some of us, the judges, the appreciate that ex parte injunction which was devised as a vehicle for the carriage of instant justice in proper cases should not be converted into a bulldozer for the demolition of substantial justice, we should all realize that justice should be done to public functionaries and public institutions25.

It has also been reiterated that lawyers also have a role to play in the war against abuse of ex parte injunction. In this direction, the Hon. Justice C. P.N. Selong advises:

“In as much as the speech of the learned Chief Justice was directed at judges, I beg to opine that the same caution should apply to legal practitioners, after all both judges and legal practitioners are Ministers in the Temple of Justice. It is my humble view that an honest lawyer who abides by the ethics of the profession should not bring an application which is manifestly unjust”26.

The need for restraint from both the Bench and the Bar on the issue was only recently during this year’s Annual Bar Conference at Enugu reiterated by the Chief Justice of Nigeria, Honourable Justice Mohammadu L. Uwais. His Lordship said:

“I think it is not out of place to appeal to legal practitioners at large to exercise more restraint in and desist from advising their clients to bring absurd applications to court for ex parte injunctions. You will agree with me that unless such applications are brought, the inconsiderate and reckless judges amongst us will not find the opportunity to embarrass the judiciary and the profession in general’27.

It must be noted that it is not in all cases where a judge grants an order perceived to be wrong that an actual case of influence arises. However, the perception of the public about justice is important whether such perception is rightly or wrongly placed. This is because the standard of justice has always been objective: based on the notion of the reasonable man. Justice must not just be done, but manifestly seen to be done. As aptly put by a write,

“the role of the Judiciary in maintaining socio-political order cannot be compromised and once the citizen believes that somebody, other than the law and his judicial conscience, tells the judge what to say or do , then, the dangers of a system break down and institutional failure become real”28.

The resolve of the National Judicial Council (NJC) to henceforth deal with judges who grant ex parte orders with recklessness cannot but be supported and encouraged. Charity begins at home. The filthy Augean stable must be cleansed.

We have concentrated on the issue of in-house cleaning by the Judiciary itself because we realize that the most ready and devastating blow to the independence of the Judiciary in the mind of the public is usually struck by the inability of some of the judges themselves to conduct the affairs of the Bench so judicially and judiciously as to inspire public confidence in their independence from external influence. Even some lawyers themselves fall into the league of those members of he public who doubt the independence of the Judiciary on the ground of questionable judicial orders. Uche Onyegorocha, a lawyer and member of the House of Representatives was responding to a question from the press on the unpopular pronouncements of a Federal High Court judge. He said:

“I see undue influence in the whole process. I see a person that is not acting independently. Like I said earlier I see people playing the drum for him in the bush and he is dancing on the street”29.

But beyond the question of conduct of the members of the Bench in handling cases brought before them are more technical and political issues of political, economic/fiscal and intellectual independence.

POLITICAL INDEPENDENCE

The Judiciary ought to be apolitical in a democratic dispensation to safeguard its independence. Accordingly, judges should not only be free from political affiliation, but the system should be organized in such a manner as to ensure that a judge does not give a decision biased in favour of a political party, especially the ruling party. Accordingly, Nwabueze identifies two forms of judicial involvement in politics(i.e organized politics) as:

(a) decisions biased in favour of a ruling party, and

(b) judicial membership of political parties 30.

It is submitted that Nigeria’s adoption of multiparty democracy is healthy for the protection of the ‘political independence’ of the Judiciary. (The term ‘political independence’ should be understood to mean the freedom of the Judiciary from having any form of political influence exerted ion it as to undermine its independence from any individual, group or another arm of government). Nigeria should strive to refuse any attempt to reduce the country into a one-party democracy since the political independence of the Judiciary would obviously be difficult to be achieved therein. The concept of an apolitical judge is utopian in a one-party system. According to Mr. Justice Georges, a former Chief Justice of Tanzania,

“the concept of the judge as neutral, belonging to no party in the multiparty democracy, can have no meaning …. Where there is one party” 31.

It has been argued that the involvement of the Executive in the appointment of Judges undermines the imperatives for the freedom of the Judiciary from political influence. It is however our view that the system of appointment under the constitution is the best we can have at the present.. if more caution is employed in the appointment of judges, no problem of want of independence would be posed by the appointment method. Nigeria is not yet ripe for election of judges or else the system would be thoroughly polluted by politics. (We shall look at the issue of appointment of judges below.

Indications that a cross section of Nigerians believe that a section of the Judiciary might have compromised their a political standard can be gleaned from this passage from a major national daily:

“The Chief Justice of the Federation, from indications, prefer his colleagues to stand above the fray of Nigeria’s turbulent political process. This position may have been informed by the ignominious role played by the judiciary in the country’s chequered political history. But despite the goodwill enjoyed by the judiciary due to a mature handling of suits, that sought to stop the recent general elections, the (sic) a section of the bench may have unwittingly placed this third arm of government in the dock”32.

The duty of maintaining a Judiciary that is free from political influence, an independent and impartial Judiciary in line with section 17(2)(e) of the 1999 Constitution, rests on the honourable men and women on the bench, the political class, the other two arms of government and all and sundry. An independent Judiciary that inspires confidence is a sine qua non for sustainable democracy. Judges have a special role to reject any attempt to undermine the independence of the Judiciary in this dispensation. It is sacred! The admonition of Hon. Justice (Prof.) A.F.D. Kuti in this wise is instructive.

“Of course, judges make laws by interpretations, as judges, by nature and training do not succumb to partisan considerations they are political, they should be abstinat a fabia. They must not allow themselves to be torn apart by any form of differences in our societies… The judges have a duty to chart an independent course and let it be known that the independence of (the) judiciary is of vital importance to the democratic process to maintain Human Rights Provisions and to maintain the non-adoption of sate Region… The Judiciary itself must be like Cinderella living in a glass house, above board like Caesar’s wife, also above suspicion” 33.

ECONOMIC/FISCAL INDEPENDENCE

It is a trite warfare strategy that the easiest way to weaken an army and overrun it is to cut off its supplies and starve it. Vital in the question of independence of the Judiciary is the issue of fiscal autonomy, and proper funding. As soon as we institutionalize the practice of judicial officers going cap in hand to beg for funds from the Executive, the idea of independence of the Judiciary has been trampled upon and blown into smithereens! Independence must involve economic ‘self-reliance’ and fiscal autonomy. By these, we mean that the Judiciary under this dispensation should always be able to have the funds due to it constitutionally falling directly to it without having to approach the Executive for any form of lobbying before funds can be released to it. The constitution has substantially taken care of this area.34 It only remains for the frontiers of fiscal autonomy to be widened so that the Judiciary, (especially State Judiciaries) would be able to carry out capital projects so as to maintain befitting physical infrastructure for the Judicial institution. Agbakoba has argued that:

“Judicial Independence is meaningless if it is not accompanied by economic independence. Dishonest judicial staff has no credible claim to judicial independence. It is necessary to take steps to ensure that judges and magistrates can enjoy a professional status capable of guaranteeing them the required amount of professional independence coupled with an adequate remuneration package that can effectively isolate them from pecuniary pressures.” 35

In Nigeria and under this democratic dispensation, some jurisdictions have had to contend with dilapidated office buildings, inadequate supplies and regular power outages. Starvation of funds is a weapon used by the Executive, the keeper of the Federation purse, to achieve a balance of judicial power by giving judicial officials a sense of economic/fiscal dependency.

To stave off starvation of funds, many countries have had to increase budgetary allocations significantly in favour of the judiciary both to provide adequate physical facilities and to allow for the continuing education of judges, magistrate and their staff. In some cases, as in Madagascar, this new approach has resulted in the establishment of a school solely dedicated to the training of judicial personnel. 36

The poor state of fiscal ability of the Judiciary in Nigeria today aptly depicts the observation of the Federalist, Alexander Hamilton that:

“The Judiciary is beyond comparison the weakest of the three departments of power. It has no influence over either the sword or the purse; no discretion either of the strength or the wealth of the society; and can take active resolution whatever. It may be said to have neither FORCE NOR WILL, but merely judgment.” 37

Although the salaries and recurrent expenditures of the Judiciary are constitutionally charged upon the Consolidated Revenue Funds, there does not appear that the constitution specifically ensures the provision for the capital expenditure of the Judiciary. This is another ploy to still keep the Judiciary low and check its ferocity in holding the balance over government excesses. There are other pockets of ploys and half-truths.

It has, for example, been argued from the Bench that the concept of accountability has often been relied upon to justify restricting the administrative independence of the Judiciary. The Executive must, in this democratic dispensation allow unfettered fiscal independence for the judiciary by freeing its funds from all restrictions so that judges do not have to continue to go to the Executive to seek for funds for capital projects and recurrent expenditure or extra budgetary expenses.

Judicial accountability in fact, complements and reinforces judicial independence by creating the public confidence on which judicial independence ultimately depends. There is no gainsaying that the point is sometimes made that in relation to their judicial functions, judges are subject to a higher degree of accountability and transparency that any other public officers, or even with the present democratic dispensation, that indeed any holder of political office, be they ministers or special advisers or chairmen or members of parastatals. 38

It has also been argued from the Bench that financial independence of the Judiciary can only be guaranteed where the ‘order’ allows physical projection and administrative control of finances by officers accountable to the Judiciary.39 The notion of Independence of the Judiciary would remain a mere rhetoric without complete fiscal autonomy for the Judiciary.

INTELLECTUAL INDEPENDENCE

This subhead is used here in a technical sense as an issue of judicial independence. But, it can best be described by the story in the Bible of Israel’s sojourn in the land of Egypt. A wicked king that hated the Hebrews and was afraid of their independence and prosperity had given an instruction to midwives in this manner,

“When ye do the office of a midwife to the Hebrew women….if it be a son, then ye shall kill him but it if be a daughter, then she shall live…Every son that is born ye shall case into the river, and every daughter ye shall save alive.” 40

Pharaoh preferred Hebrew females because he was afraid of male power in the event of war with the Hebrews. The same stratagem has been employed to destroy the intellectual vibrancy of the judiciary so as to weaken its independence. The calibre of judges that can stand their ground against assault on judicial independence are those imbued with high independent, incorruptible and analytical mind laced with profound intellectual fecundity. While the High Court Bench has a mixed multitude of judges, the Court of Appeal and the Supreme Court are filled with such high calibre of intellectually vibrant and independent-minded justices. This would explain why the Court of Appeal and the Supreme Court have not only set impressive records of independent-mindedness and incorruptibility. Those two courts can hardly be faulted in the area of independence and absence of external influence. The problem of intellectual freedom mainly lies at the High Court Bench, and the lower benches.

APPOINTMENT

By virtue of section 250(3), 256(3) and 271(3) Constitution of the Federal Republic of Nigeria 1999, a person shall not be qualified to hold office of Chief judge or a judge of the Federal High Court, Chief Judge or a judge of the High court of the Federal Capital Territory and a judge of a High Court of a state, respectively:

“Unless he is qualified to practise as legal practitioner in Nigeria and has been so qualified for a period of not less that ten years”.

We are not really concerned here about the procedure for appointment of High Court judges. What has threatened the system with collapse is the bare assumption in these constitutional provisions that tends to imply that once a person has spent ten years on earth since he/she was called to the Bar, the person automatically has all the intellectual capability to be appointed a judge.

More than anything else, judicial incompetence (encompassing law intellectually, law productively etc) has contributed to rob the Judiciary the necessary intellectual freedom it needs to assert and guard its independence.

According to Schewart:

“The quality of justice….depends more upon the quality of the men who administer the law then on the content of the law they administer.” 41

in his keynote address at the recent Bar Conference at Enugu, Chief Afe Babalola, San, observed on the constitutional qualification for appointment as a judge as follows:

“This allows great latitude for the appointment of ‘any lawyer’ who has met the ten years requirement regardless of where he is prior to his appointment. This explains why a new wig from the Nigerian Law School who, immediately after his call (and probably Youth Service) went straight to work in a company, multinationals and the life without any experience whatsoever in practice could be and are being appointed as High Court Judge”.

At the swearing in of the new Senior Advocates of Nigeria on Monday, September 8, 2003, the Honourable Attorney-General of the Federation and Minister of Justice, Chief Akin Olujinmi, SAN hinted that more stringent criteria for appointment of judges would be introduced. According to the Chief Law Officer of the Federation:

“We will propose that only those who can furnish evidence of contentious cases they handled in the Supreme Court, Court of Appeal and the High Court within, say, three years preceding their application should be considered for appointment. By so doing, it will be possible to select only seasoned practitioners to occupy positions on the Bench.” 42

The plan is absolutely welcome! It has been suggested that the list of proposed judges should be made public to enable members of the public who know the prospective judges to object to a proposal with ‘proven documents’. 43 Our only concern here is the yard stick for determining the competence of lower court magistrates and Area Courts who do not practise law. We suggest that a certain number of highly contentious cases they handled with analytical judgments delivered therein used as a yardstick.

TRAINING AND RE-TRAINING

Also critical to the issue of intellectual independence of the Judiciary, is the assurance of training and continued training for unless the National Judicial Institute takes the issue of continued judicial training even more seriously, the high toll due on the nation as a result of the blunders of ignorant judges can only be imagined. It is inherent in the erosion of public confidence in the Judiciary. As Professor Oluyede rightly observed.

“A gullible public is too ready to jump to the wrong conclusion that a bad judgment delivered by an innocuous judge who has done little or no research must have been influenced by an overbearing Executive.” 44

in his recently published “Agenda For Justice Sector Reform”, the Honourable Attorney-General of the Federation hinted of plans to make constitutional provisions for an independent body to be known as, Judicial Performance Commission to monitor the work and activities of the entire judicial system. 45 This is a plan in the right direction because it ahs the tendency of improving the depth of intellectual independence of Judiciary, to enhance the realization of an independent and impartial Judiciary.

THE RULE OF LAW

The rule of law means ‘ the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power. It excludes the existence of arbitrariness, or prerogative or even discretionary authority on the part of government. According to A.V Dicey46, renowned cerebral professor of English Law, we must be ruled by law and law alone. He went further to categorized the doctrine into three aspects. The first aspect, he says, means.

“The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, or prerogative or even of wide discretionary authority on the part of government..”

The second of aspect of Dicey’s theory may be summarized as meaning “equality before the law’, and that law is no respecter of person, rank or status. He wrote thus:

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 which governs other citizen or from the jurisdiction of the ordinary tribunals’.

Finally, the third meaning of the rule of law according to Dicey is expressed as follows:

“The rule of law, lastly may be used as a formula for expressing the fact that with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals as defined and enforced by the courts.”

The rule of law thus envisages the existence of the constitution or some sort of law which shall be bestowed with absolute supremacy overall persons, whether governor or governed. The Supreme Court of Nigeria in simple prosaic terms put this doctrine in simpler terms in the case of Governor of Lagos State V Ojukwu 47 when it held that:

“The law is no respecter of persons, principalities, governments or powers and the courts stand between the citizens and the government alert to see that the state or government is bound by law and respects the law”.

THE ROLE OF, THE RULE OF LAW: IN A DEMOCRATIC SETTING

In our contemporary world, the term “Rule of law” is now a convenient short hand for the full complement of our civil and political rights. That term now denotes the minimum condition of existence in a free open humane, civilized and democratic society. It encompasses the following:

a. The supremacy of the law including judicial decisions over all persons and authority in a state

b. The supremacy of the constitution

c. Independence of the judiciary

d. The right to personal liberty

e. Observance of democratic values and practices including’ the freedom of speech, thought, association and the press and regular, free and fair elections as the basis for assuming power in government.

Democracy, which is the indispensable Siamese twin of the rule, is based on two key principles:

i. Popular control over collective decision making and decision makers; and

ii. An equal right to share in the control, i.e. political equality 48.

However, those key principles require in the modern state a distinctive set of social components for their realization. They are:

a. Free and fair elections, to provide the platform for popular control over government,

b. Open and accountable government, guaranteeing continuous public accountability

c. Sanctity of the rule of law, upheld by independent courts

d. Civil and political rights and freedoms, enabling citizens to associate freely with others, to express divergent or unpopular views and to find their own solutions to collective problems

e. A democratic society, or societal conditions for democracy:

• Agreement on nationhood within the current national or state boundaries

• Independent and accountable institutions of civil society

• A democratic culture

From the above, it is indubitable that democracy without rule of law is tantamount to wholesale arbitrariness. This much was admirably captured by professor Nwabueze49 when he subjected the concepts of constitutional democracy and arbitrary rule to considerable thoughts, hear him:

“Constitutional government recognizes the necessity for government but insists upon a limitation being placed upon its powers. It connotes in essence therefore a limitation an government, it is the antithesis of arbitrary rule, its opposite is despotic government, the government of will instead of law”

In Nwabueze’s view, a constitutional, popular government connotes not just a government under constitution, but rather government under a constitution which has force of a supreme, overriding law, and which imposes limitations upon it. He went further to conclude that. “in practical terms, constitutionalism, democracy and the rule of law are practised in a country where the government is genuinely accountable to an entity or organ distinct from itself, where elections are freely held on a wide franchise at frequent intervals, where political groups are free to organize in opposition to the government in office and where there are effective legal guarantees of fundamental civil liberties enforced by an independent judiciary.
In other words, a constitutional government is a government according to rule, i.e. institutional government. It is an impersonal system of rules and office that effectively binds the conduct of individuals involved in them. Contrary to our experience in Nigeria, government being impersonal should not have a temper. By way of contrast, government in a regime of personal rule is uncertain and problematic because it is largely contingent on men, upon their interests, ambition, desires and aversion, their hopes and fears and all other predisposition’s that the political animal is capable of exhibiting and protecting upon his political life.

Whereas, in a constitutional democracy where there is a pre-eminent of the rule of law, where there is absolute Supremacy” of the constitution, the government has no more powers than are granted to it, either expressly or impliedly, but the constitution, and any exercise by it of power not so granted or which is prohibited to it is unconstitutional, null and void.

Conclusion

The Judiciary has an important role to play in this democratic dispensation. But we have seen from the foregoing that its independence (which is necessary for the effective discharge of the role) cannot be merely assumed, ipso facto the existence of democratically elected government. All governments, be they military or civilian seek to water down the effectiveness of the Judiciary, one way or the other.

Democracy involves the institutionalization of the Rule of Law and guarantee of human rights. There must therefore be a concerted effort to hold the balance between the traverses of power and instill the spirit of liberty, democracy and social justice in the people. This is where the judicial power conferred on the Judiciary under section 6 of the constitution becomes very vital.

The Judiciary is the soothing balm in the face of frictions accessioned by new expeditions in balancing of power in a renascent democracy like ours. The Supreme Court has demonstrated this important role in the manner it judicially resolved burning national issues like the so-called ‘resource control’ suit, the Local Government Law conflict, the registration of political parties face off, the Anti-Corruption Act case, to name a few.

The Judiciary, in a democracy, is a pacifist par excellence! The imperatives for an independent Judiciary are therefore more urgent in this dispensation than at any other time. Justice must not just be done, but manifestly seen to be done. Nigerians must have implicit confidence in the Judiciary. We have demonstrated that the viciousness of the judicial fangs would depend on the level of its independence as perceived by the people. Commenting on the maxim, “de fide et officio non recipitur quaestio, sed de sicentia sirve error juris facti” (the honesty and integrity of a judge cannot be questioned, but his decision may be impugned for error, either of law or fact), Ogham-Emeka counsels:

“The option before a person who perceives that an order was wrongly made against him is to obey and expeditiously move to set it aside. But there is so much the judiciary must do if the people would not soon sneer at this time honoured principle and accused lawyers of merely dressing a long rotten apple with lousy Latin and grammatical saccharin. And may the day never come!”50

Accordingly, we all have the challenge to do all that is in our power to maintain the integrity of the court which in turn would uphold the hallowed principles of the Rule of law. The importance of an independent Judiciary in a democracy cannot be down played.

“No institution carries with it the responsibility for democracy’s survival as does the Judiciary. In the inevitable confrontation between the state and citizens, between tiers of government and between all manners of political actors, it is the Judiciary that is the last hope for the resolution of disputes.” 51

It would be appropriate to end this paper by borrowing what would be a present challenge to the Judiciary, indeed a tasking of its independence in this democratic dispensation. We see the constitutional role of the Judiciary in this democratic dispensation as follows:

“To call both the legislative and the executive to order when they are going wrong. They should stop dancing as if they are appendage of the legislature or the executive. The Judiciary should act independently. It should come down heavily on the side of justice, of the masses of the Nigerian people.” 52

If we do not stand up for the independence of the Judiciary now, when do we do it? When there is no more government? Or when chaos and anarchy set in? Or when there is no more Nigeria? It is better now than never!