CHALLENGES AND PROSPECTS OF EXAMINATING OF JUDICIAL INDEPENDENCE IN NIGERIA FROM 1960 TO 2020

0
494
You can download this material now from our portal

CHALLENGES AND PROSPECTS OF EXAMINATING OF JUDICIAL INDEPENDENCE IN NIGERIA FROM 1960 TO 2020

ABSTRACT

One major challenge bedeviling the judiciary in Nigeria, at different phases of its development from 1960 to 2020, is the lack of true independence. The judiciary has been regarded as the custodian and true watchdog of the peoples’ rights, the sacred elements of democracy and the principles of state sovereignty. However, the incidence of unscrupulous exertion of influence at varying degrees from the other arms of government, particularly in areas of remuneration, dismissal etc., has consistently been a clog in the wheel of smooth and efficient running of the judicial system. The research carries out a credible x-ray of the problem of lack of true independence of the judiciary in Nigeria. This research is important because of the need to provide pragmatic strategies to strengthen the judicial arm of government. The method used in this research was doctrinal. A descriptive analysis of the legal rules contained in the Constitution and the various legislative enactments were considered in the light of case laws. The research also considered the prospects and made proposals on how to improve the situation so as to strengthen the Nigerian judiciary.  The proposed solutions include amending the constitutional provisions in respect of the composition of the National Judicial Council, mandating state governments to comply with section 12(3) of the Constitution which provides that the amount standing to the judiciary from the consolidated revenue fund of the state must be paid directly to the heads of court concerned among others. It is strongly believed that the right application of the solutions preferred in this research will actualized the independence of the judiciary in Nigeria.

 

 

 

 

 

 

 

 

CHAPTER ONE

1.1       Background of the Study

Judicial independence entails the independence of judicial officers from any sort of interference from executive and legislative officers in the process of discharging their constitutional functions and this definition does not exclude undue influence from other members of the society of any calibre.[1] The need for the judicial arm of government to carry out its responsibilities without any sort of interference or undue influence by the executive, legislature or other institutions or persons, is inextricably linked with the doctrine of separation of powers. This is important because the peculiarities of its constitutional mandate necessitate such level of independence that can provide the checks on the excesses of the executives and legislature and to safeguard the rights and freedom of Nigerians among other core functions it was established to perform.[2] Article II, paragraph 2(4) of the Montreal Declaration provides that in the dispensation of justice, the judiciary must be independent of the Executive and Legislature.[3]

A study of the Nigerian history from 1960 to 2020 will reveal the interplay between the judiciary and other actions and players in the legal and political system. Interestingly, it is apparent that the judiciary has journeyed through different phases from the colonial period to the present democratic government and has contributed immensely to the development of the Nigerian democracy.

While succeeding different forms of government like the parliamentary, military and the present democratic government, the judiciary has tried to protect its independence from the dirty waters of the Nigerian socio-political space. For instance, a reflection on the dramatic military era and the consistent display of judicial activism through audacious interpretation of ouster clauses will reveal some of the credible acts of the Nigerian judiciary in the past. Such actions may leave the judiciary with bruises, but a strong judicial system saturated with courageous, vibrant and progressive judicial officers will maintain its stand towards protecting the rule of law and democratic constitutionalism.[4] Apart from the institutional framework, there are legal frameworks fashioned to protect the independence of the judiciary An example of such constitutional mechanisms is the establishment of the National Judicial Council (NJC)[5] saddled with the responsibility of superintending the matters of the Nigerian judiciary such as recommending to the President and Governors, such persons to be appointed to judicial offices. Also, the 1999 Constitution of the Federal Republic of Nigeria, by virtue of section 81 (3), 121(3) and 162 (3) of the 1999 Constitution mandates that any amount, in the Consolidated Revenue Fund standing to the credit of the judiciary shall be paid directly to the National Judicial Council to be disbursed to heads of the courts concerned. This was stated to secure the judiciary from becoming puppets of the Executive. Despite the inclusion of some of these provisions, there is no gainsaying that the tides have changed, and things have regrettably fallen apart. The high regard usually given to judicial officers have been watered down by increasing level of corruption, technical and procedural flaws and many other notorious challenges characterizing the independence of judiciary in present times. There are concerns on the efficacy of the legal and institutional framework as the present realities do not align with international standards for judicial independence.

1.2       Statement of The Problem

Over the years the creation of the National Judicial Council has largely influenced Judicial independence in Nigeria. The clear hierarchy of the court, the mode and appointment of judicial officers among others. Despite all these successes, the functional perspective and the purpose of the judiciary seem to be a mere cosmetic. The Judiciary countless time has been subjected to numerous challenges despite it been a separate arm of government, there is no independence or autonomy as in practice, it is just a constitutional pronouncement. There seems to be no end to the interference of the Judiciary both by the executive, the legislative arm, and the political elite. For instance, the appointment and removal of judicial by the executives is one of the major issues which have been hamstringing the independence of the judiciary. It is often the case that appointment is predicated on undue emphasis on ethnic or geo-political considerations which may result to the selection of incompetent people. In 2018, the then Chief Justice of Nigeria, Walter Onnoghen, lamented that the appointment of judges was highly politicized. Also, the abuse of power witnessed in River State, over the appointment of the Chief Judge of the state, this led to the Judiciary been held under siege and the subsequent shutdown of the court for almost two years. Due to the delicate nature of the judicial system, such practices are deleterious as it weakens the quality of judgments, the sacrifices impartiality on the altar of allegiance to the executives, desecration of the hallowed integrity of the court and invasion of Judicial sanctity, by political elite and state actors, seem to be the new normal, arrest of Judges and the manner with which they are treated, leaves the NJC helpless. Regrettably, there is no end in view as longs as politicians continue to determine the appointment and removal of judicial officers. In 2014, the National Judicial Council (NJC) in a bid to strengthen the integrity of the process of judicial appointment, adopted the Revised Guidelines for the appointment of judicial officers of all Superior Courts in Nigeria. However, there are complaints that the NJC has not consistently enforced those guidelines or countered efforts to circumvent the guidelines. Even in some cases, the NJC has spared some judiciaries that deviated from the guidelines despite complaints made by interested stakeholders. This occurred in the recruitment of judicial officers to the Federal High Court in 2015 and the appointment of judges in Lagos State in 2017.[6]

Apart from the foregoing, on the issue of remuneration, it is saddening that certain judge of lower courts still collect peanuts as salaries and allowances, such that in carrying out their functions, they unapologetically compromise in favour of an interfering body having an advantage to offer. Findings have revealed that for many years, the judiciary has been like a parastatal in the executive rather than an independent body as the Nigerian judiciary are the worst paid in the Commonwealth and one the least paid in world.[7] For example, the Federal Budget in 1960 allocated a paltry 0.30% to the judiciary while in the year 2001, it dropped to 0.20%. Even in 2021, the allocation is still less than 1%.[8] .

From another standpoint, the case of dysfunctional budgetary provision is another fly in the ointment of judicial independence in Nigeria. The constitution provides that any amount standing to the credit of the Judiciary in the consolidated Revenue Fund of the State is to be paid directly to the heads of the Courts concerned.[9] Necessarily, the Federal Government and State Government are involved in this process and on many occasions the provision is recklessly breached to the detriment of judicial independence in Nigeria. Other notorious incidents of interference in the affairs of the judiciary are the inducement of judicial officers to tamper with the smooth course of justice or the unfair act of starving the judiciary of operational funds.

There is no gainsaying that a basic requirement for a flamboyantly prosperous federal and democratic state is the existence of a strong and independent institutions that is self-regulating and self-accounting body, this will create an appropriate air of independence that would in no small way enhance Judicial performance.

 

1.3        Aim and Objectives

This research seeks to investigate and articulate the concept of judicial independence in Nigeria particularly within the timeframe of 1960 to 2020 by analysing the obtainable challenges characterising the independence of the judiciary. The objectives are as follows:

  1. to carefully identify the various causes of lack of judicial independence in Nigeria.
  2. to carve out practicable strategies that can be integrated into the judicial system to strengthen its independence and promote the quality of Nigerian Democracy.

Putting into consideration the peculiarities of the Nigeria situation, some of the practical solutions proffered in this research will be of immense relevance as they have been validated by their application in other jurisdictions across the world.

1.4       Scope and Limitation of the Study

The scope of the research centres on the analysis of judicial independence in Nigeria from 1960 to 2020 putting into consideration its challenges and prospects. The research examines the present realities of judicial independence in Nigeria juxtaposed with the existing framework. It covers the problem of lack of true independence of the judiciary in Nigeria and exposes the technical flaws responsible for this saddening situation.

The limitation of study is predicated on the lack of a quality data and statistics collection system in Nigeria. There was difficulty encountered in gathering precise and up to date data to track some activities in the judiciary which limited the research from examining some of the compliance procedure of some relevant bodies identified in the research.

1.5       Significance of the Study

The importance of this study is predicated on the need to provide pragmatic strategies towards improving the judicial structure and strengthening the judicial arm of government to facilitate the achievement of its constitutional mandate. The research also considered the prospects and made proposals on how to improve the situation so as to strengthen the Nigerian judiciary. The judiciary, which is the hope of the common man, is saddled with the responsibility of administering justice. The problem of lack of true independence of the judiciary has caused severe harm to many citizens with less influence or bargaining power. Hence, the subject matter of the research is critical to advance the jurisprudential discourse towards the execution of development policies and legislations for the smooth course of justice devoid of partiality. It does this by examining the research problem and devising pragmatic solution to solve it.

1.6       Research Methodology

The research was conducted using doctrinal methodology. Doctrinal research entails in-depth analysis of the legal concept or doctrine together and its developmental process, by examining relevant primary and secondary resources including statutory provisions and case laws.[10] In analysing the legal and institutional framework on the judiciary in Nigeria and the problem of lack of true independence that bedevils it, the research depended on information gotten from primary and auxiliary sources through wide-range online research. The researcher conducted a critical and qualitative analysis of the legal materials to support its position. The legal rules and obtainable realities in respect of the judiciary in Nigeria, are carefully identified and the inherent challenges are discussed in light of the need to improve on the present reality.

The relevant laws consulted include the 1999 Constitution of the Federal Republic of Nigeria (as amended), the Federal High Court Act, the National Industrial Court Act, the National Judicial Institute Act, the Magistrate Laws of various states which are the various legislations establishing and conferring jurisdiction on federal and state courts in Nigeria. Secondary sources such as law reports, textbooks, journals, encyclopedias, newspapers, journals, articles, online write-up and dictionaries. These resources assisted in analysing the subject matter of the research.

1.7       Literature Review

Diverse scholarly resources were consulted during the course of the research. The scholarly views and perspectives on the subject matter have been meticulously appraised by the researcher. Many of their positions are of invaluable relevance to the development of the discourse and profoundly facilitated the research.

Philip Aka defined judicial independence as the ability of a judicial tribunal, to make decisions free of undue pressure from outside sources particularly the executive and the legislature.[11] He further argued, according to the international Bar Association Minimum Standard of Judicial Independence,[12] that judicial independence may be said to be present when individual judges possess three types of independence which are personal, substantive and internal.[13] When the terms and conditions of judicial service are secured to the end that judicial officers are not made subject of executive control, personal independence may be said to exist. On the other hand, substantive independence occurs when the judge is only subject to the law, as in the case of Okezie v Chairman, MPDT[14] and the commands of his/her conscience. It is internal when such independence is in the decision-making process and the judge is independent in relation to judicial colleagues and supporters.

This research supports the position of Philip Aka but it was observed that he failed to consider that there can be no judicial independence in the absence of financial autonomy, although he suggested that judicial independence could be improved by maintaining civilian rule, reducing corruption, public participation. This research posited that there is a need for massive reforms in respect of the framework governing the remuneration of the judiciary. This research seeks to address that by identifying the extant provisions on the remuneration, salaries and allowances of judicial officers in the light of its effectiveness towards the achievement of judicial independence.

In the book, English Legal System[15] , Catherine Elliot and Frances Quinn argued that the security of tenure of judges is critical to judicial independence as it ensures that they are not removed at the whim of one of the other branches. In their submissions, the other germane tenets of judicial independence include that judges should enjoy judicial immunity and that their salaries are not subject to executive or legislative manipulations. It is apparent that Catherine Elliiot and Frances Quinn did not fully analyze all the manifestations of judicial dependence. This research agrees with their general submission but also states that independence of the judiciary, beyond their submission, also covers meritorious appointment and freedom from interference even from members of the public interested in bidding for justice through corrupt practices.

Abdullahi Ibrahim[16] argued that the lack of independence of the Nigerian judiciary has paved a path to the plethora of issues bedevilling the judiciary in Nigeria starting from lack of courage to corruption in making decisions in cases of election cases. This can be considered in matters like institutional autonomy, security of tenure, appointment of judges, judicial accountability, adequacy of resources for the courts and other which greatly affect the judiciary.

While this research agreed with Abdullahi Ibrahim’s position, it does not support the perspective of absolute freedom because no arm of government should be absolutely free from each other. The significance of check and balances under the doctrine of separation of powers, as applicable under the Nigerian Constitution, is very instrumental in keeping each of the arms of government efficient. Hence, this research addressed this issue by positing that the indicators of judicial independence including finality of decisions, guaranteed terms or tenure security, meritorious appointment, enumerated qualifications among others, do not destroy the need for checks and balances by the Executive or the legislature, in respect of judicial actions that may not be within the scope of the law.

In his argument, Ibrahim Sule17 submitted that judges must play their key roles adequately in maintaining justice in the Nigerian society and this must be done impartially. Otherwise. there is an alarming risk that impunity will continue to thrive, and justice will continue to be trampled upon. He also emphasized that the need to improve on the existing legislation to ensure security of tenure for judicial officers. He stated that the present legal framework on the tenure of judges does not comply with international best practices.

Ibrahim Sule did not put into consideration that apart from legal framework, it takes strong institutions to achieve judicial independence. Although this research supported his position that the judiciary must attain independence in all its ramifications, it is argued that lot needs to be done even at the level of adjusting the existing institutional framework. This research analysed the institutional framework on judiciary in Nigeria and examined their various roles and their relevance in achieving judicial autonomy.

In the book, Reforming for Justice,[17] , Joseph Otteh argued that achieving greater independence from the executive can be actualized particularly in the area of improving the condition of service of judicial officers. He emphasized that there is a need for a new legislation towards strengthening

judicial independence by clarifying NJC’s role in the appointment and removal of Chief Judges of States and such legislation should also create room for whistle blowers to report cases of judicial corruption. This research agrees with the position that a legislation should be in place to encourage whistle blowers in disclosing cases of corruption or compromise in the judiciary. However, the position of Joseph Otteh in respect of clarifying NJC’s role in the appointment and removal is ambiguous as the constitution already provides for the role of the NJC and to alter the clear cut provision on appointment and removal of judges, the Constitution itself will have to be amended. The research posits that the Constitutional provisions that saddles the executive with the responsibility of appointing and removing the judiciary should be amended.

A.T Shehu and M.K Taminu[18] posited that the Nigerian judiciary characteristically protected its independence from undue interference during the military era and this earned it a sense of prestige among the Nigeria citizenry until recently when corruption has crept in. Interestingly, they argued that a major aspect of judicial independence is the freedom of judges from interference even within the judiciary itself and not just from an external political branch. They emphasized that the constitutional provisions on the provision of National Judicial Council should be amended. This is in terms of its membership and appointment procedure.

This research agrees with their submissions. However, A.T Shehu and M.K Taminu did not consider the important roles played by other judicial bodies including the National Judicial Institute and the State Judicial Service Commission among others. This research examined these bodies, identified their various functions, and hold that are important to the enhancement of judicial independence.

The above discussions have revealed the immense contributions of some selected writers on the topic of this research. However, the researcher seeks to further fill up certain gaps in the scholarly contributions.

 

1.8        Synopsis of the Chapters

To ensure that the subject matter of the research is covered holistically, the work is divided into five chapters. The first chapter covered the general introduction to the topic and included the background of the study, statement of the problem and the objectives sought to be achieved. It also covered literature review of selected materials. It identified. the research methodology, scope and limitation of the study.

The second defined some key words essential to the subject matter of the research and the historical development of the judiciary in Nigeria from 1960 to 2020 but also briefly considered what was applicable in the pre-colonial and colonial period. The chapter ended with a discussion on the functions of the judiciary.

In chapter three, the research critically considered the legal and institutional framework for the judiciary in Nigeria. Furthermore, the subject matter of the research which are the challenges facing the independence of the judiciary in Nigeria are critically examined in chapter four. The chapter also examined the core elements which determines judicial independence. The research concluded in chapter five. In this chapter, the researcher made a summary of the findings and proffered very important recommendations to solve the research problem.

[1] Shehu A.T & Tamim M.K ‘Suspension of Justice Ayo Salami: Implications for Rule of Law, Judicial Independence and Constitutionalism’ (May 2016) AJCJS Vol 9(1) p 43.

[2] Ibrahim S. ‘Judicial Independence in Nigeria: Between Global Trends, Domestic Realities and Islamic Law. (2018) < https://www.researchgate.net/publication/328914198> accessed 2 April 2021.

[3] This was the Universal Declaration on the Independence of the Justice that was adopted at the First World Conference on the Independence of Justice held at Montreal (Canada) in 1983.

[4] Ibrahim S. Op Cit. p 42.

[5] Section 153, 1999 Constitution of the Federal Republic of Nigeria. (as amended).

[6] Oladimeji Ramon ‘Group Blames NJC for politicians’ Interference in Judicial Appointments’ (2018)

<https://punchng.com/group-blames-njc-for-politicians-interference-in-judicial-appointments/> Accessed July 20, 2021.

[7] Ige Ise-Oluwa ‘Nigerian Judges: Worst Paid in the Commonwealth-Investigation’ (2020)

<https://www.blueprint.ng/nigerian-judges-worst-paid-in-the-commonwealth-investigation/> Accessed July 20, 2021.

[8] Ibid.

[9] Section 121(3) CFRN 1999(as amended)

[10] Amrit K. ‘Doctrinal Legal Research’ (2018 Tribunal University, Nepal) < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3130525> Accessed on July 30, 2021.

[11] Philip C.A ‘Judicial Independence Under Nigeria’s Fourth Republic: Problems and Prospects’ (2014) 45(1) CWILJ 8.

[12] International Bar Association Judicial Independence: The Contemporary Debate (Shimon Shetreet & Jules Deschenes, eds. 1985) 388.

[13] Ibid p 9.

[14] (2011) All FWLR (pt.585) 370 at 381

[15] Catherine Elliot and Frances Quinn, ‘English Legal System’ (Pearson Education Limited, 2004) p 127.

[16] Abdullahi I ‘Independence of the Judiciary in Nigeria: A Myth or Reality?’ (2014) 2(3) IJPAMR 56. 17 Ibrahim S. ‘Judicial Independence in Nigeria: Between Global Trends, Domestic Realities and Islamic Law.

(2018) < https://www.researchgate.net/publication/328914198> accessed 2 April 2021.p 22.

[17] Leonard Dibia ‘Reforming for Justice’ (Access to Justice, Lagos, 2007) p 167.

[18] Shehu A.T & Tamim M.K ‘Suspension of Justice Ayo Salami: Implications for Rule of Law, Judicial Independence and Constitutionalism’ (May 2016) AJCJS Vol 9(1) p 43.

CHALLENGES AND PROSPECTS OF EXAMINATING OF JUDICIAL INDEPENDENCE IN NIGERIA FROM 1960 TO 2020

Leave a Reply