21st Century Judiciary; Whither Justice And Judicial Independence
By Ogugoedeng Joseph Dimkpa
Abstract
The 21st century began on January 1, 2001 and will end on December 31, 2100. The 21st century synchronized with the coming into power of a democratically elected government. Prospects were high that the judiciary would be more rejuvenated; that the judiciary would be more assertive in its adjudicatory role. More so, that the Constitution had new provisions that would suggest, at first glance, that the independence of the judiciary is guaranteed. The court is the hallmark of the judiciary. It is usually considered the last hope of the common man due to its adjudicatory role. But it is indeed, the last hope of everybody. The judiciary plays dominant role in the administration of justice. Justice is the fair and proper administration of laws. It is also the quality of being just i.e. the administration of law according to prescribed and accepted principles. Judicial independence has its origin in the concept of separation of powers. By this concept, the Executive, the Legislature and the Judiciary are three distinct and independent arms of government. Judicial independence connotes that the judiciary as an institution, and all individual judges presiding over cases and other personnel must be able to perform their professional responsibilities free from any influence or interference by the Executive or Legislature or any other person or institution for that matter. Indisputably, it is only an independent judiciary that can competently administer justice. It is against this backdrop, that this paper interrogate whether the independence guaranteed the judiciary by the Constitution in order to achieve justice is a mirage or a reality, and concludes that the high sounding constitutional provision relating to judicial independence has no bite and what could have been constitutional guarantee of judicial independence is no more than a slogan in Nigeria, and therefore justice is farfetched.
INTRODUCTION
In contemporary democracies, there are three arms of government constituted by the Executive, Legislature and the Judiciary. Each of these arms of government in Nigeria derives its powers from the 1999 Constitution. For instance, by the provision of Section 6, the judicial powers of the Federation is vested in the judiciary. That is, the judiciary is responsible for the administration of justice; and it is usually considered the last hope of the common man for this reason; but the judiciary is indeed, the last hope of everybody, when it is independent.
“Of the three arms of government, the judiciary is the branch of government that enables our decisions to be translated into law, the justice of which must be apparent.” Indeed, when independence of the judiciary is lacking, justice will not be apparent in most cases; and when it is apparent, one can be sure it was tough.
It is suggested that certain provisions of the Constitution be amended to guarantee the judiciary independence; as it is only an independent judiciary that can do justice.
CONCEPTUAL CLARIFICATIONS
Under this section, concept of 21st century, judiciary, justice, independence, and judicial independence are conceptualized.
21st Century
21st Century: The 21st century is the current century of the anno Domini era, in accordance with the Gregorian calendar. It began on the January 1, 2001 and will end on the December 31, 2100.
JUDICIARY
Judiciary means “The branch of government responsible for interpreting the laws and administering justice.” The court also defined judiciary as denoting “…the branch of government that is constitutionally responsible for interpreting the laws and administering justice, by the application of the rule of law, through duly constituted courts.” Judiciary is also used to refer collectively to the personnel, such as judges, magistrates and other adjudicators who form the core of judiciary (sometimes referred to as the Bench) as well as the staff who keep the system running smoothly.
JUSTICE
“Justice is the fair and proper administration of laws. It is also the quality of being just i.e. the administration of law according to prescribed and accepted principles.”
In the case of Inakoju v. Adeleke, the court gave the meaning of justice thus: “… justice in its simplistic content means quality of been just, fair play and fairness. It has an element of equality, of egalitarianism in its functional context.”
Justice simply means been fair. And this fairness must be attained in strict compliance with the law and established principles.
INDEPENDENCE
Independence has been defined by Black’s Law Dictionary, as the state or quality of being independent…to manage all… affairs, whether external or internal, without control…” Independence could also be taken to mean the mental and physical maturity of an individual to arrive at prudential judgments without any external influence.
JUDICIAL INDEPENDENCE
The phrase “judicial independence” or “independence of the judiciary” is not mentioned at all in the 1999 Constitution. Notwithstanding, in Chapter II of the Constitution, specifically Section 17(e) of the 1999 Constitution, it is provided as one of the “Social Objectives” of the Nigerian state that: “the independence, impartiality and integrity of courts of law, and easy accessibility thereto shall be secured and maintained.”
As commendable as the above constitutional provision is, it is provided in Section 6(6)(c) of the Constitution that Chapter II of the Constitution is non-justiciable. The implication of this is that it cannot ordinarily found an action in the court, thus putting up a serious question on the rationale for its inclusion in the Nigerian Constitution. In A.G. Ondo State v. A.G. Federation, the Court held that the provisions of Chapter II remain mere declarations, unenforceable by legal process, but that it would be seen as a failure of duty of state organ if they act in clear disregard of them. The court further held that “…the Directive Principles can be made justiciable by legislation.”
Another section of the Constitution some argue guarantee the independence of the judiciary is Section 36(1) of the Constitution. It is humbly argued that Section 36(1) only guarantees one’s right to have one’s cause heard by an independent and impartial judge and does not at all guarantee institutional independence of the judiciary.
Kayode Eso, views judicial independence to:
…imply courts which are not to be tied to the apron-strings of the Executive, courts which are free from political, ethnic or religious pressures and polarisation; courts which are adequately funded, and funded in a way that does not subject the judiciary to be a beggar institution of the Executive, courts which are manned by the best available brain attracted therein, apart from, patriotism, but by the honour and dignity of the office and also by the prevailing, but tempting and enviable conditions of service, courts which are not made incapable of delivering a just verdict.
Simply, judicial independence can be said to be the ability of a judge to decide a matter free from pressures or inducements. It also implies a situation whereby the judiciary as an institution is separate and free from all kinds of influence from other arms of government.
The concept of independence of the judiciary has both subjective and objective elements. The subjective element relates to the personality and quality of the judex; his character, integrity, learning, and independence of mind. A judge who lacks learning, industry and integrity is less likely to be independent no matter the constitutional guarantee.
This point was even made clearer by Ade-Ajayi and Akinseye-George when they noted that:
It seems from Kayode Eso’s performance in judicial office that the personal qualities of a judicial officer, that is, his learning, character and industry are the primary factors on which the independence of the judge largely depends. In other words, although a judge may be appointed under a defective constitutional arrangement, his independence and performance in judicial office will ultimately depend more on his personalities.
The objective element of judicial independence relates to the constitutional and institutional prerequisites for insulating judges from the external influence of those who wield power. In this respect, the process of appointment, conditions of service, discipline, and removal of judges should be free from undue executive influence and manipulations.
The reason for this, in the words of Justice Kayode Eso is that:
A judge whose appointment has been so influenced by the Governor, might consider himself, or, at least, be so considered, by the public, to whom he should appear independent to be answerable to his benefactor, the Governor.
Theoretical Framework
This paper anchors its argument on the theory of separation of powers. This is informed by the need for the independence of the judiciary from the control of the executive and legislative arms of government. This theory has been deemed to be the cornerstone principle of the independence of the judiciary.
This doctrine requires that the powers or functions of government are separated and carried out by different institutions and personnel. “The origin of the principle … of judicial independence (separation of powers) could be traced to England and Wales.” “The first legal attempt to curtail the interference of the Executive on the judiciary was recorded in the Case of Prohibitions Del Roy, in which King James 1 adjudicated and gave judgment on a land matter.”
An appeal went before Justice Edward Coke, the Chief Justice of the Court of Common Pleas. The Honourable Justice held that:
The King in his own person cannot adjudge any case, either criminal or between party and party, but it ought to be determined and adjudged in some Court of Justice, according to the law and custom of England … The King may sit in the King’s Bench, but the Court gives the judgment. No King after the conquest assumed to himself to give any judgment in any cause whatsoever which concerned the administration of justice, within the realm; but these causes were solely determined in the Courts of Justice.
Scholars reputed to have contributed greatly to the expounding and expansion of this doctrine were John Locke, a British philosopher and Barron de Montesquieu, a French philosopher. John Locke in his “Second Treatise of Civil Government” written in 1690 focused on the need for governmental powers to be kept separate, and the need for one arm not to exercise overriding influence on the other.
Montesquieu on his part was of the opinion that concentration of powers in one arm of government would render the citizens subject to the arbitrary and capricious will of the rulers, a condition manifestly contrary to the rule of law, and also a threat to civil liberty. In this regard, Baron de Montesquieu, opined thus:
…Constant experience shows us that every man invested with power is likely to abuse it and carry his authority as far as it will go. To prevent this abuse, it is necessary from the nature of things that one power should be a check on another. When the legislative and executive powers are united in the same person or body, there can be no liberty…
This doctrine is regarded as one of the most fundamental tenets of liberal democracy and is seen as a basic condition for good governance.
The Supreme Court in the case of A.G. Western State & Ors v. E.O. Lakanmi and Ors, had the opportunity of making pronouncement on the principle of separation of powers when it held thus:
We must here revert once again to the separation of powers, which, the learned Attorney General himself did not dispute, still represents the structure of our system of government. In the absence of anything to the contrary it has to be admitted that the structure of our constitution is based on the separation of powers, the Legislature, the Executive and the Judiciary, our constitution clearly follows the model of the American constitution. In the distribution of powers the Courts are vested with the exclusive right to determine justifiable controversies between citizens and between citizens and the state.
CONSTITUTIONAL RESPONSIBILITY OF THE JUDICIARY
Section 6(1) and (2) of the 1999 Constitution provides that the federation and state judicial powers shall be vested in courts created for the federation and those created for the state. Section 6(5)(a)-(i) CFRN 1999, lists the superior courts of record as follows:
(a) The Supreme Court of Nigeria
(b) The Court of Appeal
(c) The Federal High Court
(cc) The National Industrial Court
(d) The High Court of the Federal Capital Territory, Abuja
(e) High Court of a State
(f) The Sharia Court of Appeal of the Federal Capital Territory, Abuja
(g) Sharia Court of Appeal of a State
(h) The Customary Court of Appeal of the Federal Capital Territory, Abuja
(i) The Customary Court of Appeal of a State
(j) such other courts as may be authorized by law to exercise jurisdiction at first instance or on appeal on matters with respect to which the National Assembly may make laws; and such other courts as may be authorized by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws.
The vesting of judicial powers in the courts imposes taxing responsibilities on judicial officers, whose primary function is to administer justice according to law and the constitution. Judicial power means the authority vested in courts to hear and decide cases and to make binding judgments on them; the power to construe and apply the law when controversies arise over what has been done or not done under it.
So vital and inevitable is the place of the judiciary in the scheme of things that the constitution forbids the legislature from enacting any law that “Oust or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.”
The judiciary been the third arm of government, has the onerous function of interpreting the laws. Its functions may be expressed in the latin words judicis est jus-dicere non dare which means, it is for the judge to declare and administer the existing law and not make one. This principle was confirmed by the Supreme Court per Bairamin F. J. in Okumagba v. Egbe thus:
Feeling that the appellant deserve to be punished, the chief magistrate replaced the word ‘another candidate’ by the words ‘any candidate’ and thus enable himself to punish the appellant. In effect, he amended the regulation, but amendment is the function of the legislature and the courts cannot fill the gap which comes to light by altering the words of a regulation to make it read in the way he think it should have been enacted. As Lord Bacon said in his essay on judicature, the office of a judge is jus dicere non jus dare to state the law not to give law, and the court below should not have gone in for judicial legislation.
Again, in Read v. J. Lyons & Co. Ltd., Lord Macmillan observed as follows:
Your lordship task in this House is to decide particular cases between litigants and your lordships are not called upon to rationalize the law of England. That attractive perilous field may be left to other hands to cultivate.
It must however be stated that the law still grows by process of judicial law making. In this regard, Holmes J. in Southern Pacific Co. v. Jense said “I recognized without hesitation that judges did not and must not legislate but they do so only interstitially.”
In the same vein, the Supreme Court, per Pats-Acholonu JSC, in Magit v. University of Agriculture, Makurdi, stated thus:
It is said that the function of the Court is to interpret laws. In theory, that is so. But it must equally be admitted that judges are not robots or zombies who have no mind of their own except to follow precedents. They are intrepid by their great learning and training and can distinguish in order to render justice to whom it is due. As the society is internally dynamic and with fast-changing nature of things in the ever-changing world and their undergoing servitude or bondage, but in the sense of legal obeisance and loyalty to it.
In the execution of its mandate of interpretation of law and administering justice, the Judiciary is not supposed to be tied to the apron strings of any arms of government, political party, pressure group, religious, racial or ethnic group, sex, geo-political entity, etc. and this explains why the symbol of justice is depicted as a blindfolded person (Lady) holding two even scales, meaning that the Judiciary is to dispense justice to all manner of people without fear or favour, affection or ill-will.
The judiciary is also not free from mistakes, as perfection is a quality God alone enjoys. The Supreme Court in acknowledging this fact as far as the apex court is concerned stated that:
We are final not because we are infallible; rather we are infallible because we are final. Justices of this court are human beings capable of erring. It will certainly be shortsighted arrogance not to accept this obvious truth.
JURISDICTION AS ENABLER OF THE JUDICIARY IN THE EXERCISE OF ITS JUDICIAL POWERS
Lack of jurisdiction emphasizes the want of legal capacity and lack of competence in the court to hear and determine the subject matter before it. Lack of jurisdiction necessarily means that the court does not have the competence to exercise the judicial powers vested in the courts by Section 6(6)(b) of the 1999 Constitution. A decision or judgment made while the court lacks jurisdiction is null and void.
The limits of jurisdiction is prescribed by the Constitution or by the enabling statute under which the court is constituted. Jurisdiction is so fundamental that it is a condition precedent to any action which calls for determination before the court. Once the issue of jurisdiction is raised during proceedings before the court, it should be decided at the earliest stage of the proceedings in order to save the time and before the merits of the case are considered and determined.
It is trite that:
A court is only competent when –
- It is properly constituted with respect to the members and qualifications of its members;
- The subject matter of the action is within its jurisdiction;
c. The action is initiated by due process of law; and,
d. Any condition precedent for the exercise of its jurisdiction has been fulfilled.
Non compliance with any of the foregoing matter is a defect in competence which may be fatal to its jurisdiction.
Where the court lacks jurisdiction, the parties cannot confer and vest jurisdiction on the court.
The question as to whether a court has jurisdiction can be raised at any stage of the trial, even for the first time on appeal. The importance of jurisdiction in the adjudicatory processes has always been emphasized by the courts. It is of absolute importance in judicial proceedings and the life wire of adjudication.
RUDIMENTS OF AN INDEPENDENT JUDICIARY
The rudiments that will be considered will be as it relates to the objective rudiments of judicial independence. That is, as it relates to the constitutional and institutional mechanisms aimed at guaranteeing independence of the judiciary. There will be no need considering the subjective rudiments. This is because it is indubitable that a judge who lacks the subjective rudiments which relates to the personality and quality of the judex; his character, integrity, learning, industry, and independence of mind, will make nonsense of the judiciary no matter the constitutional and institutional guarantee of independence granted the judiciary, and of course, justice will become a commodity for the highest bidder and miscarried unwittingly some other times. According to Justice Samson Uwaifo in an interview with Sunday Sun:
A corrupt judge is more harmful to the society than a man who runs amok with a dagger in a crowded street. The latter can be restrained physically. But a corrupt judge deliberately destroys the moral foundation of society and causes incalculable distress to individuals through abusing his office while still being referred to as honourable.
The objective rudiments of judicial independence to be considered are: appointment of judicial officers, removal of judicial officers, and financial autonomy of the judiciary.
APPOINTMENT OF JUDICIAL OFFICERS
Two procedures of appointment can be discerned from the 1999 Constitution, namely:
The first procedure is appointment by the President or Governor acting on the recommendation of the National Judicial Council (NJC) and subject to confirmation by either the Senate or the House of Assembly of a State as the case may be. The judicial officers affected by this procedure of appointment are:
the Chief Justice of Nigeria and Justices of the Supreme Court, President of the Court of Appeal, Chief Judge of the Federal High Court, President of the National Industrial Court, Chief Judge of The High Court of the FCT, Abuja, Chief Judge of a State, Grand Khadi of the Sharia Court of Appeal of the FCT, Abuja, Grandi Kadi of the Sharia Court of Appeal of a State, President of the Customary Court of Appeal FCT, Abuja, and President of the Customary Court of Appeal of a State.
The second procedure is appointment by the President or Governor acting on the recommendation of the National Judicial Council. No confirmation by either the Senate or House of Assembly of a State is required. Judicial officers in this category are:
Justices of the Court of Appeal, Judges of the Federal High Court, Judges of the National Industrial Court, Judges of the High Court of the FCT, Abuja, Judges of the High Court of States, Khadis of the Sharia Court of Appeal FCT, Abuja, Khadis of the Sharia Court of Appeal of States, Judges of the Customary Court of Appeal FCT, Abuja, and Judges of the Customary Court of Appeal of States.
Also relevant to the appointment of these judicial officers; especially heads of courts is Paragraph 13a (i) – (iv) of Part I of the Third Schedule to the 1999 Constitution; Paragraph 6(a) (i) – (vi) of Part II of the Third Schedule to the 1999 Constitution, and Paragraph 2(a) (i) – (vi) of Part III of the Third Schedule to the 1999 Constitution, which provides that the Federal Judicial Service Commission; the State Judicial Service Commission, and the Judicial Service Committee of the Federal Capital Territory, Abuja, shall have power to advise the National Judicial Council on suitable persons for nominations to the offices of the judicial officers above. I will use the State Judicial Service Commission and appointment of the Chief Judge (the same procedure applies to other judges of a State) in this analysis. It should also be noted that it is the same procedure at the Federal level, and the Federal Capital Territory, Abuja.
In the appointment of a Chief Judge; first, the State Judicial Service Commission submits a list of persons considered suitable for nomination to the office of Chief Judge of the State to the NJC for consideration. The role of the State Judicial Service Commission is to “advise” the NJC on the suitability of the nominees proposed on the list for appointment to the office of Chief Judge of the State. Therefore, the nominees on the list may be arranged in their order of preference by the State Judicial Service Commission. In practice, two nominees are usually proposed by the State Judicial Service Commission to the NJC for consideration for recommendation to the Governor. Given that the role of the State Judicial Service Commission is purely advisory, it is very arguable that the NJC is not bound to accept the preferred nominee of the State Judicial Service Commission for recommendation to the Governor, although the NJC cannot recommend a person not proposed in the list submitted by the State Judicial Service Commission.
Secondly, the NJC considers the list of nominees submitted to it by the State Judicial Service Commission and recommends one person only from the said list to the Governor of the State for appointment to the office of Chief Judge of the State. Thus, unlike the State Judicial Service Commission that proposes at least two suitable nominees for consideration, the NJC on its part “does not send a list of preferred candidates for any single vacancy.” It recommends one suitably qualified candidate to the Governor for appointment to the office of Chief Judge of the State.
It is arguable that the 1999 Constitution does not require the NJC to consider the list submitted to it by the State Judicial Service Commission by reference to any particular criteria or material; the overriding consideration of the NJC is to recommend the most suitably qualified candidate to the State Governor for appointment to the office of Chief Judge of the State. In discharging its constitutional responsibility in this regard, it is expected that the NJC will give adequate consideration to relevant information on each nominee on the list including such matters as seniority on the bench, performance, integrity, comportment, and available security reports.
Thirdly, the Governor considers the recommendation of the NJC, and if he accepts the recommendation, transmits the name of the candidate so recommended to the House of Assembly for confirmation before the appointment is made.
Considering the important role played by the State Judicial Service Commission as can be deduced above in the appointment of Chief Judge of a State, it is expedient to consider the membership of this body. Paragraph 5(a) – (f) of Part II of the Third Schedule to the 1999 Constitution provides that this body shall comprise:
the Chief Judge of the State, who shall be the Chairman; the Attorney General of the State; the Grand Kadi of the Sharia Court of Appeal of the State, if any; the President of the Customary Court of Appeal of the State, if any; two members, who are legal practitioners, and who have been qualified to practice as legal practitioners in Nigeria for not less than ten years; and two other persons, not being legal practitioners, who in the opinion of the Governor are of unquestionable integrity.
Similar provision is provided under Paragraph 12(a) – (f) of Part I of the Third Schedule to the 1999 Constitution as it concerns the Federal Judicial Service Commission.
It is humbly argued, that a body that plays such important role in the appointment of judicial officers that are supposed to be independent and dispense justice is not to be constituted in this manner. More so, since the NJC cannot recommend a person not proposed in the list submitted by the State Judicial Service Commission. Of the seven members of this body, the Governor directly appoints five (this is so because a person must first be appointed Attorney General by the Governor). In practice, these persons are appointed based on political considerations, and more often than not, are used to veto important decisions of the Chief Judge when such decisions does not go down well with the interest of the Governor. The membership of the Judicial Service Committee of the Federal Capital Territory, Abuja, may, to a large extent ensure the independence of the Committee from the Executive arm. This is because at least, there are three statutory members, and three others directly appointed by the President.
The removal/separation of the office of the Attorney-General of the Federation and of the State from the executive arm of government by the Constitution (Fifth Alteration) Bill No.53, 2022 is commendable.
Furthermore,
…the president or governor is not bound to appoint a person on whom a favourable recommendation has been made (by the NJC). A binding recommendation (the CFRN 1999 provides that the appointments are to be based on the ‘recommendation’ of the NJC) is a contradiction in terms…Where, however the president or governor turns down a person recommended by the commission (Council), he cannot appoint someone else who has not been recommended at all. He must ask the commission (Council) to recommend another person.
How could it possibly be, that it is intended for the judiciary to be independent in the discharge of its primary function, when the President/Governor is constitutionally given the right to reject a judicial officer recommended by the NJC for appointment as head of court. Indeed, a President/Governor that suspects (whether rightly or wrongly) that the judicial officer recommended will not dance to his tune will simply reject such recommendation. This reminds one of the Enugu State saga.
In December 2004, when Justice J.C.N. Ugwu was retiring as Enugu State Chief Judge, it was clear that Enugu State Governor, Chimaroke Nnamani, favoured the appointment of a particular Judge, Justice I. Umezulike, as a successor Chief Judge, but Justice Umezulike was not next in the line of succession and by respected tradition he could not yet be appointed to that office.
The NJC had, at first, insisted on following the tradition, and recommended Justice R. Agbo, the next most senior Judge, to fill the position. Vowing that Justice Agbo would not succeed the outgoing Chief Judge over what is generally believed to be Justice Agbo’s stoutness, Governor Nnamani worked through the political party machinery to ensure that the legislature did not confirm Justice Agbo for the office. The House of Assembly subsequently declined to confirm Justice Agbo’s selection and requested the NJC to present another candidate. No reasons were adduced to justify the decision. The NJC capitulated and recommended the Governor’s “candidate” for the office.
Again, the lack of criteria in the Constitution for a Justice/Judge to be appointed as head of court is a great threat to independence of the judiciary and leaves the door open for politicization in the process of appointment of heads of court. Had it been this is provided for, the question “Whether the NJC is entitled under the CFRN to recommend only the most senior judge of the High Court of Rivers State to the Governor for appointment as the Chief Judge of the state?” in Governor of Rivers State & ors v. National Judicial Council & anor., at the Federal High Court Port Harcourt, per Hon. Justice Lambo Akanbi, and the crisis before, and after the action that occasioned total shutdown of the judiciary in Rivers State for almost two years would not have been necessary.
Again, the double standard by the NJC in picking and choosing States to uphold its “tradition” of recommending only the most senior judge of the High Court of a State is worrisome and leaves a great deal to be desired. On 27 November 2020, the NJC rejected a list of the names of two judges of the Gombe State High Court, earlier submitted to it by the Gombe State Judicial Service Commission, for its consideration and recommendation. The NJC explained in a letter to the Gombe State Judicial Service Commission that the rejection of the list was on grounds of the omission of the most senior judge, Justice Beatrice L. Iliya. The impression created by the NJC in the Gombe State scenario, and some other States is that only the most senior judge in a State High Court is entitled to be appointed the substantive Chief Judge of the State. Hence, the rejection of the list that omitted the name of the said most senior judge in the State.
However, and quite surprisingly, the same NJC would thereafter in March 2021 proceed to recommend for appointment as the substantive Chief Judge of Rivers State, his Lordship, Hon. Justice Simeon C. Amadi, who obviously was not the most senior judge in Rivers State as of the time of that recommendation. It should be recalled that a group of lawyers under the aegis of “Concerned Lawyers in Rivers State”, had in a public statement issued in Port Harcourt, said the approval was against an “established tradition of seniority applied in the appointment of chief judges of the state”, arguing that the most senior judge in the State High Court, Justice Joy Akpughunum ought to have been recommended.
“The NJC’s insistence on observance of the rule of ‘judicial tradition on seniority in the bench’ in appointing substantive Chief Judges of States in Nigeria, has no support in the laws of Nigeria.” Section 271(1) of the Constitution places no obligation on the State Judicial Service Commission, the Governor of a State, the NJC and a State House of Assembly to (respectively, as the case may be) nominate, recommend, appoint or confirm only the most senior judge in the State as the substantive Chief Judge of the State.
It is humbly submitted that the NJC, rather than trying to use a “tradition” it decides where to apply and not to apply, to circumvent the provisions of the Constitution, should push for the amendment of Section 271(1) of the Constitution and all other provisions of the Constitution dealing with the appointment of substantive heads of court to reflect its tradition of recommending the most senior judge of the High Court. This will divest the Executive arm of government of any ounce of discretion to pick and choose any particular Judge/Justice for appointment as head of court, and thus, advance the independence of the judiciary and promote dispensation of justice without fear or favour.
REMOVAL OF JUDICIAL OFFICERS
Removal is the ultimate disciplinary action against a judicial officer. But other actions – reprimand, suspension, inclusion on a ‘watch list’, prohibition of nomination for appointment to a higher office – are the exclusive preserve of the NJC.
Arbitrary exercise of power to remove judicial officers from office could be as damaging to judicial independence and dispensation of justice, as the arbitrary exercise of power of appointment. In view of the inestimable value attached to the judiciary, removal of judicial officers is not dictatorially done. The Constitution provides the procedures in Section 292 as follows:
- (1) A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances –
(a) in the case of –
(i) Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High Court, President of the National Industrial Court, Chief Judge of the High Court of the Federal Capital Territory, Abuja, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and President, Customary Court of Appeal of the Federal Capital Territory, Abuja, by the President acting on an address supported by two-thirds majority of the Senate.
(ii) Chief Judge of a State, Grand Kadi of a Sharia Court of Appeal or President of a Customary Court of Appeal of a State, by the Governor acting on an address supported by two-thirds majority of the House of Assembly of the State,
Praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct;
(b) in any case, other than those to which paragraph (a) of this subsection applies, by the President or, as the case may be, the Governor acting on the recommendation of the National Judicial Council that the judicial officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct.
It is clear from a literal interpretation of the above provisions, specifically Paragraph (a) (i) and (ii), that the President or Governor can remove heads of Court without any recourse whatsoever to the NJC. All that is required is two-thirds majority of the Senate or House of Assembly of a State in support of such removal. This is no doubt a brazen impediment to judicial independence; especially at the State level, where legislators are ever ready to do the bidding of the Governor. Expectedly, some Governors have tried to rely on the above provisions of the Constitution to undermine the independence of the judiciary by purportedly removing Chief Judges of their States without the recommendation of the NJC. Indeed, the creativity and dexterity displayed by the courts in declaring removals of Chief Judges without NJC’s recommendation as null and void is alluring.
In Elelu Habeeb’s case, the Supreme Court held that Section 292 of the Constitution should not be read in isolation of other provisions of the Constitution dealing with the appointment and removal of judicial officers and opined as follows:
In other words, on the interpretation and application of the provisions of Section 153(1)(i); 271(1); 292(1)(a)(ii) and paragraph 21 of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999, the Governor of Kwara State and the House of Assembly of Kwara State cannot remove the Chief Judge of Kwara State from office without recourse to and input or participation of the National Judicial Council. That is to say for the purpose of emphasis, the Constitution of the Federal Republic of Nigeria 1999, does not give the Governor of Kwara State acting in conjunction with the House of Assembly of Kwara State absolute power to remove the Chief Judge of the State from his/her office or appointment before the age of retirement without the recommendation of the National Judicial Council.
It is humbly submitted that this dangerous loophole to judicial independence should not be left to the creativity and dexterity of the courts, no matter how alluring. Section 292 (1) (a) (i) and (ii) of the Constitution should be amended to reflect the decision of the Supreme Court in Elelu Habeeb’s case. This will guarantee this settled principle of law is not sacrificed for the exigency of any moment.
Also worthy of mention is the removal of the former Chief Justice of Nigeria, Walter Onnoghen by President Buhari, acting on an ex parte order of the Code of Conduct Tribunal (CCT), without the recommendation of the NJC or two-thirds majority members of the Senate in support of the removal as decided by the Supreme Court in Elelu Habeeb’s case.
The CCT is a judicial tribunal of record, directly designated and empowered as such by the Constitution.
It is thus a very serious misnormer when such a body is not only established, administratively, as part of the Presidency but also finds itself chaired by a personality able to assert rightfully, CCT’s independence from the direct supervision of the NJC, but feels himself beholden to the review powers of the Presidency.
It must be noted that it is the President that retains the power to initiate a CCT member’s removal from office subject to the confirmation separately, of two-thirds of the members of the Senate and House of Representatives. The Chairman and the other two members of the CCT are to be “appointed by the President in accordance with the recommendation of the National Judicial Council.” Unalike Judges of regular courts, “recommendation” is as far as the NJC’s involvement goes in relation to the affairs of the CCT. The NJC is given no powers both under the Constitution and the Code of Conduct Bureau and Tribunal Act when it comes to removal and disciplining of members of the CCT with judicial functions. The CCT is the only tribunal whose punitive decisions or ‘convictions’ cannot be obliterated by the executive discretion by virtue of the Prerogative of Mercy.
The domiciliary of the CCT in the Presidency, where it receives the platform and support; administratively and financially to find its voice, is not only a threat to judicial independence, but a serious threat to justice and every public officer opposed to the executive arm of government. This is because there is a great possibility of abuse, as the CCT may be turned into a proxy for the political battles of the presidency.
Therefore, if there is anything good to come out of the removal of the former Chief Justice of Nigeria for the judiciary, it is this: it presents a favourable circumstance or occasion for the people of Nigeria to demand the removal of the CCT from the Presidency. Thankfully, the Constitution Review Committee 2022, took the bull by the horns. The Committee through the Constitution of the Federal Republic of Nigeria, (Fourth Alteration) Bill No. 18, 2022, altered the Constitution in section 6(5), by inserting a new paragraph “(ce) Code of Conduct Tribunal.”
The Committee also altered paragraph 21 of Part I of the Third Schedule to the 1999 Constitution relating to the power of the NJC to recommend to the President from among the list of persons submitted to it by the Federal Judicial Service Commission for appointment to judicial offices; by including the Chairman and Members of the Code of Conduct Tribunal, through the Constitution of the Federal Republic of Nigeria, (Fourth Alteration) Bill No. 18, 2022.
The Committee further altered paragraph 15 of the Fifth Schedule to the Constitution in subparagraph (1), by substituting for the words, “a Chairman and two other persons”, the expression-
(a) a Chairman of the Code of Conduct Tribunal; and
(b) such number of members of the Code of Conduct Tribunal not less than twenty-four as may be prescribed by an Act of the National Assembly.
Furthermore, the Committee substituted subparagraph (3) of paragraph 15 of the Fifth Schedule to the Constitution, with a new subparagraph “(3)”. It reads:
“(3) The Code of Conduct Tribunal shall be duly constituted if it consists of at least three members of the tribunal”.
New subparagraphs “(3A)”-“(3C)” is also inserted after subparagraph (3). It provides for: the qualification of persons to be appointed as Chairman or members of the CCT; appointment of the most senior member of the CCT as Chairman in acting capacity when the office of the Chairman becomes vacant for any reason; and that except on the recommendation of the NJC, a person appointed to the office of the Chairman in acting capacity shall not be re-appointed after the expiration of three months by the president.
Again, Section 318 of the Constitution is altered by inserting in the interpretation of “judicial office”, after the word “State”, the words:
or office or member of such other court or tribunal as may be created by an Act of the National Assembly or a Law of the House of Assembly of a State pursuant to the provisions of section 6 (5) (j) and (k) of this Constitution.
The net effect of all the amendments is that the CCT has now grown properly into an independent judicial body like the regular courts, and subject to the supervision of the NJC. The obvious intention of the legislature here is to obviate the threat of arbitrary removal of judicial officers from office, through the instrumentality of the CCT, thereby safeguarding the independence and sanctity of the judiciary, and affording judicial officers leeway to do justice without fear or favour in line with their oath of office. But regrettably, President Buhari has refused to assent to any of the Bills; which gives even more credence to the suspicion that the CCT is used as a weapon of political battles of the Presidency. However, Femi Falana (SAN), in a statement has said that President Buhari lacked the power “to reject the constitutional amendment bills passed by the required majority in the National Assembly and 27 out of the 36 houses of Assembly of the states.” The senior lawyer went further to explain that the president’s power to withhold his assent “is limited to bills passed by the National Assembly pursuant to section 58 of the Constitution (which deals with amendments of other laws and not bills passed under Section 9 of the Constitution which deals with alteration of the Constitution itself).” I cannot agree more with the senior lawyer; because any reasoning to the contrary will amount to giving a veneer of legality to the president’s attempt to scuttle the Constitution we the people of the Federal Republic of Nigeria have made and given to ourselves.
FINANCIAL AUTONOMY FOR THE JUDICIARY
The importance of granting financial autonomy to the judiciary cannot be overemphasized. It is banal and trite that “he who pays the piper detects the tune.” Simply, financial autonomy could be said to mean financial independence.
The former National President of the NBA, Mr Olumide Akpata, with whom I agree, in an address presented at the opening of the 2020/2021 Legal Year of the National Industrial Court of Nigeria (NICN), said that:
Achieving full independence for the Judiciary in Nigeria will be difficult, if the Judiciary is not guaranteed full financial autonomy under the Constitution.
The spectacle of heads of courts literally begging for its overheads and general welfare from the President of the Federation or the Governor of a state, is an ugly one that highlights the seemingly subservience of the Judiciary to the Executive arm of government which it ought to be independent of.
The courts in some unreported cases: Olisa Agbakoba v. A.G. Federation, National Judicial Council & Anor.; Olisa Agbakoba v. Attorney-General of Ekiti State & 2 ors and Judiciary Staff Union of Nigeria v. National Judicial Council and Governors of the 36 states, has upheld the sanctity of Sections 81(1),(2), (3); 121(1),(2),(3), and 162(9) of the CFRN 1999, which purports to guarantee the judiciary financial autonomy. Though the case of Judiciary Staff Union of Nigeria which judgment was delivered on January 14, 2014, by the Federal High Court and predicated on Section 162(9), failed to appreciate the decision of the Supreme Court as far back as 2002 in the case of A.G. Federation v. A.G. Abia State, wherein it was held that the judiciary had no fund assigned to it in the Federation Account, as the Funds in the Federation Account is meant to be shared between the Federal Government, the States of the Federation and the Local Governments.
The court in the other cases unequivocally held that Sections 81 and 121 grants the judiciary financial autonomy. Sections 81(1), (2), (3); 121(1),(2), and (3) of the CFRN 1999 will now be examined together since they are in pari materia; except that Section 121 relates to States.
Subsection (1) empowers the President/Governors to prepare the budget for the Federation/States. This simply means whatever the Judiciary prepares as budget will be sent to the President/Governors for inclusion into the budget of the Federation/States. And of course, as the ones (President/Governors) empowered by the Constitution to prepare the budget for the Federation/States, they reserve the right to meddle into and alter the budget of the Judiciary under the guise of paucity of funds, to ensure the Judiciary comes cap in hand begging. Considering the vital role of the judiciary and the need for financial autonomy, this subsection needs to be amended to exclude the budget of the judiciary from the Federation/States budget that the President/Governors are constitutionally empowered to prepare and lay before the legislature.
The NJC should prepare budget of the federal judiciary and present it to the National Assembly for consideration and approval. At the State level, the Chief Judge of the State, jointly with other heads of court should prepare the budget of the judiciary and present it to the House of Assembly for consideration and approval. If this is not done, then the judiciary will continue to be dependent, and justice may be too tough to deliver. It must be appreciated, that the Constitution as it is today renders the decisions of the courts on financial autonomy for the judiciary nugatory. However, these decisions of the courts ought to be complied with until it is set aside. In Babatunde & Ors v. Olatunji & Ors., Katsina-Alu, JSC, reiterated the legal effect of a judgment thus:
It is settled practice that there is a presumption of correctness in favour of a Court’s judgment. Unless and until that presumption is rebutted and the judgment is set aside, it subsists and must be obeyed. It cannot for any reason under our law be ignored.
In Olisa Agbakoba v. A.G. Federation, National Judicial Council & Anor., the Court held that estimates of the federal judiciary should not be submitted to the Executive for inclusion in the Appropriation Bill. The court ruled that judicial estimates should be submitted by the NJC directly to the National Assembly for consideration and appropriation. In the same vein, and as recent as 7th of March, 2023, the Delta State High Court per Hon. Justice G.B. Briki-Okolosi in John Aikpokpo-Martins & Olukunle Edun v. Governor of Delta State & Ors., held that by virtue of the provisions of Sections 120(4), 121(2), 121(3) & 124(4) of the 1999 Constitution and the judgment of the Federal High Court in Olisa Agbakoba v. A.G. Federation, National Judicial Council & Anor., the Delta State Government is not required to present to and/or lay before the State House of Assembly or any of its Committee, the budget and/or estimates of the Delta State Judiciary. The Court held that the Chief Judge and the President of the Customary Court of Appeal should lay before the State House of Assembly the estimates/budget of the Judiciary. The Court further held that estimates of expenditure of the Judiciary in Delta State, after being passed by the House of Assembly are automatically charged upon the Consolidated Revenue Fund of Delta State and therefore, the State Governor or any of his agents, subordinates and/or agencies lack the vires and authority to tamper with same or impose any condition for their disbursement and/or release of same to the State Judiciary.
Subsection (2) provides that every head of expenditure not charged upon the Consolidated Revenue Fund of the Federation/States is to be included in the budget estimate or appropriation bill. This subsection is to the effect that the appropriation bill will provide for issues which need to be met by withdrawing funds from the Consolidated Revenue Fund of the Federation/States.
To further strengthen the independence of the judiciary and ensure efficient justice delivery, I propose an amendment of Sections 84(4) and 124(4) of the Constitution, to include the capital budget of the judiciary, like its recurrent, as a charge upon the Consolidated Revenue Fund of the Federation/States. It is unfortunate that some heads of spending for the judiciary
…are drawn from votes of other Departments of government, in that they are not captured in the budget of the Judiciary as an Arm of Government. Two examples quickly come to mind; Health and Foreign travels. Funds needed for medical bills are usually drawn from the votes of the Ministry of Health (directly under the purview of the Executive, very sad indeed), … The votes for foreign travels is drawn from Protocol and Foreign travels votes (still completely controlled by the Executive).
Again, like judicial officers, the remuneration, salaries and allowances of Judiciary Staff Union of Nigeria (JUSUN), should be a charge upon the Consolidated Revenue Fund of the Federation/States. Sections 84(4) and 124(4) of the 1999 Constitution should be amended to bring this change to fruition.
Subsection (3) provides that any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation/States should be paid directly to NJC for disbursement to the heads of the courts established under Section 6 of the Constitution. For the States, such amount is to be paid directly to the heads of the courts concerned.
Compliance with this subsection seems not to be a problem at the Federal level. The problem seems to be coming from the States. In fact, it was the immediate cause of the JUSUN nationwide strike of 2021 that lasted for over two months, and President Buhari’s Executive Order 10 of 2020.
To solve the jigsaw puzzle, the Constitution Review Committee 2022, in the Constitution (Fifth Alteration) Bill No.9, has provided the framework for the implementation of the subsection for State judiciaries, by creating a Disbursement Committee to superintend the release of appropriated funds to the judiciary, and timeline for the release of such funds.
Though the amendment is very commendable, I hold the view that this amendment will achieve little or nothing as far as financial autonomy for the judiciary is concerned, if Section 121(1) of the Constitution is not amended to exclude the budget of the judiciary from the budget the Governors are expected to prepare for their States. A thousand and one disbursement committees can be created; but of what importance will such committees be, if the amount approved by the Governors for the judiciary remains a meager sum.
CONCLUSION
The mood of Nigerians at the inception, and even before the inception of the 21st Century was understandably ecstatic; military dictatorship came to an end. Citizens hoped that the 21st Century would readily translate the judiciary into a more robust, bold, and independent institution that can do justice without fear or favour. The independence of the Judiciary is the foundation for good justice and of impartiality. And because the independence of the 21st Century Judiciary in Nigeria remains a slogan, mere declaration and an albatross; good justice is invariably tough to deliver when it is eventually delivered, and in some other cases, wittingly miscarried. This underscores the importance of granting and guaranteeing independence of the judiciary.
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