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).
