Prof Mike Ozekhome SAN

Introduction

In the last part of this intervention, we examined the abuse of ex-parte orders as part of our survey of the independence of the judiciary. We then moved on to political pressures exerted on the judiciary. We continues with this theme today and extend economic/fiscal pressures which undermines judicial independence. We shall also x-ray the intellectual dimensions of the judicial remit as well as the relevant legal codes for their appointment. Come with me.

POLITICAL INDEPENDENCE (continues)

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”.

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. 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.”

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.

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 no active resolution whatever. It may be said to have neither FORCE NOR WILL, but merely judgment.”

Although the salaries and recurrent expenditures of the Judiciary are constitutionally charged upon the Consolidated Revenue Fund, it 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 than any other public officers, or even with the present democratic dispensation, than indeed any holder of political office, be they ministers or special advisers or chairmen or members of parastatals.

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 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.”

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 than 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.” (To be continued).

Thought for the Week

“I believe that an independent judiciary is the crown jewel of our constitutional republic. Brett Kavanaugh”. (Charles Evans Hughes).

By Prof Mike Ozekhome SAN

Introduction

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 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.

Another controversial ex-parte order was that made by a judge in the Abuja Division of the Federal High Court 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 of immunity enjoyed by the governor under the Constitution. The governor had to borrow the “Black market” appellation from Oshiomhole.  Even more  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 orders (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 up by a writer as follows:

“In these 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 them was prepared to obey a ‘black market’ order obtained outside the ‘official market’! They never obeyed and nothing happened!

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.

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

• When there is a real urgency but not a self-induced or self-imposed urgency.
• Where it is necessary to preserve the res which is in danger or imminent danger of being destroyed, and
• 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, to 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 institutions.

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

“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”.

The need for restraint from both the Bench and the Bar on the issue was reiterated at the Annual Bar Conference, Enugu by the then Chief Justice of Nigeria, Honourable Justice Mohammadu L. Uwais, who counseled thus:

“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’’.

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 be seen to be done.  As one writer aptly put it:

“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 becomes real”.

Accordingly, 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 the public who doubt the independence of the Judiciary on the ground of questionable judicial orders.  In this regard, Uche Onyegorocha, a lawyer and member of the House of Representatives while responding to a question from the press on the unpopular pronouncements of a Federal High Court judge, 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”.

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. These we shall presently address.

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 identified two forms of judicial involvement in politics (i.e organized politics) as:

• decisions biased in favour of a ruling party, and
• judicial membership of political parties.

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”.

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 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 subsequently).

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

“The Chief Justice of the Federation, from indications, prefers 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”. (To be continued).

Thought for the Week

“We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our property and our liberty and our property under the Constitution” – Charles Evans Hughes

By Prof Mike Ozekhome

Introduction

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

Definition of Terms (continues)

During the colonial and military regimes, the Executive always attempted to undermine the Judiciary, erode its independence and powers of coercion and have a field day with illegality and impunity.  On those occasions, the Judiciary always stood up courageously to uphold the rule of law.  In Eshugbayi Eleko Vs. Government of Nigeria the Judicial Committee of the Privy Council declared null and void and of no effect whatsoever the deportation of the Oba of Lagos from his domain to an entirely different part of Nigeria on the ground, inter alia, that the Governor had no such power 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 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 minuets before I sat this morning, I have been under untold pressure and threat from many quarters urging me to arrive at a particular decision ever before I listen to the accused.  Let me make it that as a Muslin, 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 off, like Pontius Pilate, of the trial of Otunba Iyiola Omisore and other accused persons standing trial for the murder of Late Chief Bola Ige, SAN (Slain Attorney-general of the Federation).  After the controversial withdrawal of the judge, allegations of undue pressure, bribery, arm-twisting tactics, threats and promises directed against the judge inundated the media.

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

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

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

More than any other factor, the abuse of 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 the 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 which of the All Nigeria Peoples Party (ANPP) when preparation for the convention had already gulped millions of naira and party members had already converged at the venue in Abuja.  Most Nigerians did not believe that the Judge was not acting in the interest of the rival ruling Peoples Democratic Party (PDP) given the controversial and damaging circumstances under which the order was made.  The resulting outrage cost the judge his job.

Another, Abuja High Court made an order restraining the National Assembly from further deliberating on a bill before it to amend the Independent Corrupt Practices and other Related Offences Act 2000.  The Executive was interested in killing the bill. The order was made in defiance of the trite principle of the doctrine of separation of powers which precludes the courts from assuming jurisdiction over a bill that has not become law.  In articulating the position of the Court of Appeal on the question of Judicial interference in the 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 trailed the ex parte order given by the same Abuja Federal High Court which directed the Independent National Electoral Commission (INEC) to issue a certificate of return to Chief Adolphus Wabara (PDP) as Senator representing the Abia South Senatorial Zone.  INEC complied (apparently reluctantly) and Wabara became the president of the senate the next day.   The source of the controversy was that INEC had earlier declared Elder Dan Imo (ANPP) as the winner of the seat.  As Ogbham-Emeka, a counsel in Mike Ozekhome’s Chambers observed about the controversy in ThisDay 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 that force litigants to choose which court order to obey and which not to obey, a situation that spells doom for a regime of law and order”. (To be continued).

Thought for the Week

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