Judicial Independence in Nigeria: Might or Myth
Prince Ebere Nwokoro, FCArb, FNILA*
Abstract
An independent judiciary is a pre-requisite for the existence of any society that respects the Rule of law, and is thus valued by many democratic countries around the globe. In Nigeria, recent events have simulated the resurgent interest in the subject and this book chapter is a modest contribution to the literature in this area of scholarship. Using doctrinal analytical research methods, this paper examines the extent to which the concept of judicial independence is operationalized in Nigeria. Or put differently it attempts to find out whether judicial independence in Nigeria is might or myth. It finds that, while there are in existence certain forward-looking provisions in the constitution of the Federal Republic of Nigeria 1999 and other sundry legislative framework that may enable the achievement of judicial independence; there are also some worrying features both in the law and outside the law that conspire to erode judicial independence in Nigeria. This paper argues that while it is possible that certain indentified flaws may be addressed through constitutional and procedural changes, the prospects of the evolution of judicial independence in all its fundamental aspects in Nigeria will remain a forlorn hope if the judges themselves, lawyers as auxiliaries of the judiciary and the citizenry do not play their respective parts in the epic struggle. The paper concludes that it is difficult to say, in Nigeria’s present circumstances, that judicial independence is either might or myth.
1. Introduction
The subject of this paper – ‘Judicial Independence’ is one that has generated a lot of interest right from the time of Coke,[1] if not beyond. In Nigeria, recent events have catalyzed the resurgent interest in the hallowed concept. They include the melodramatic suspension and subsequent compulsory retirement of Justice Ayo Isa Salami (PCA) during the presidency of President Goodluck Ebele Jonathan[2]; the controversial retirement of Justice Walter Onnoghen (CJN);[3] the invasion of the residence of Justice Mary Odili (JSC) – the second most senior Justice of the Supreme Court at the time – by armed security operatives;[4] the paralyzing effect of 62 days strike embarked upon by the Judiciary Staff Union of Nigeria (JUSUN) in 2021;[5] and the outrageously audacious ploy by the Governor of Kogi State and the Kogi State House of Assembly to remove the Chief Justice of the State – Justice Nasir Ajanah (CJ) for no just cause;[6] among other cascading torrent of events in the justice sector in Nigeria with their excruciating impact on the independence of the judiciary.
The reason for the rekindled interest in scholarly debates on judicial independence in Nigeria is not far-fetched as it is a truism that ‘an independent judiciary is an indispensable pre-requisite of a free society under the rule of law”.[7]
The judiciary is the bulwark of any democracy. Its main pre-occupation in the administration of justice is the interpretation of the constitution and the laws in such a way as to produce justice. Oputa JSC was of the view that justice not only between individuals inter se but also between the individual and the state.[8] The judiciary is also a catalyst of economic and socio-political progress in society. For it to be able to actualize its constitutional mandate and for the citizens to have confidence and trust on the judicial process, it is absolutely essential that the bench should not be subservient to or dependent on any of the pockets of power to wit the power of the Executive, the power of the Legislature, the power of prosecution, the power of powerful multinationals, the power of organized crime, the power of mob hysteria, the power of the majority, etcetera.
The main concern of this paper, therefore, is to critically evaluate whether the concept of judicial independence in Nigeria is might or myth. In doing so, this paper commences the discourse by clarifying the preeminent term as well as the attributes and dimensions of judicial independence. Thereafter, it highlights some of the drivers of judicial independence before providing an analysis of the Nigerian judicial system and its independence. Finally, the paper draws conclusions from the discussion and provides some recommendations aimed at strengthening judicial independence in Nigeria. The discourse is majorly doctrinal and analytical in its approach, as existing literature on the subject are examined in order to critically evaluate whether judicial independence in Nigeria is might or myth.
2. Clarification of the Preeminent Term: Definition, Connotation and Dimension of Judicial Independence
The concept of Judicial Independence is a subject of intense jurisprudential debate. In any event, it is not unexpected to encounter definitional problems in an attempt to delimit the scope of a concept.[9] Due to spatial constraint, it will be practically impossible to appraise all scholarly responses to the definitional question. Thus, only a few examples (using the opinion of the then Chief Justice of the Wisconsin Supreme Court – Shirley Abrahamson as a pedestal for departure) are highlighted to illuminate the subject.
Abrahamson[10] wrote that ‘the term judicial independence embodies the concept that a judge decides cases fairly impartially, and according to the facts and law, not according to whim, prejudice, or fear, the dictates of the legislature or executive or the latest opinion poll….’ For Cohen,[11] it means ‘that political organs will not interfere with the application of these legal sources (constitutions, statutes, regulations, rules of decisions, and other sources of authority) to the facts of particular cases. In principle, it should also mean that political organs will not inflict deprivation upon honest judges who make undesired decisions.’
For the purpose of this paper, we respectfully and simply take judicial independence to mean a judge’s freedom to apply his interpretation of the law to each case before him.[12] The ‘law’ is applicable beyond any particular case – a constitution, statutes or to the extent relevant in the particular legal system, judicial precedent.[13]
In concordance with this understanding, it was held in Bradley v Fisher, that “it is a general principle of the highest importance to the administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.[14]
The concept of judicial independence is bi-dimensional. Oputa JSC (as he then was) opines that it has both a subjective or personal angle and an objective dimension.[15] From an objective dimension, judicial independence is that element which makes possible the decision of cases and issues on the basis of expediency. It permits resisting the pressures of hysteria and fanaticism. It is the ingredient which allows a judge to rise above passion, public clamour and the politics of the moment.[16]
Independence in this sense involves objective prohibitions. Conversely, from a subjective prism, independence entails subjective obligations on the part of the judex. Again, directing his forensic eloquence to this area of scholarship, Oputa posits that it ‘means that when it comes to decision taking, to writing of his judgment, the judge should be influenced only, by his oath of office to do justice to all manner of people without fear or favour, affection or ill-will. He will not listen to all or any of the sirens of power – he must be completely independent with nothing to influence or control him but God and his conscience.’[17]
Instructively, the concept of judicial independence, in the extreme, protects a judge who misreads or misinterprets relevant sources of the law, so long as his decision results from his thought process and not from inappropriate outside pressures[18] like threats of bodily injury or premature removal from office. It is pertinent to note, however, that criticisms by scholars, lawyers, litigants and the press are not inappropriate outside pressure because a judge can ignore such criticisms.[19]
3. Drivers of Judicial Independence
Although legal scholars have identified several key factors that drive, influence and or promote judicial independence, there is no ideal model of implementing it in the sense that one –size –fits all. Judicial Independence is – in more concrete terms – the result of a combination of different conditions, measures, checks and balances that can vary from one country to another.[20] As a result, every country has to find its own balance,[21] by adopting any model or solution that meets her configuration of the term. Notwithstanding that these factors vary significantly between different jurisdictions, there is near-universal consensus that the following among others are essential:
- Mode of Appointment of Judicial Officers
- Security of Tenure of Judicial Officers/ Mode of Removal of Judicial Officers
- Financial autonomy/Fixed and Adequate Compensation
- Respect for the rule of law/Executive lawlessness.
In the sub-sections that follow, this paper explains and illustrates these drivers, albeit, in brief.
3.1 Mode of Appointment of Judicial Officers
Judicial Independence is a central goal of most legal systems, and systems of appointment are seen as a crucial mechanism to achieve this goal.[22] Judges who are dependent in some way on the person who appoints them may not be relied upon to deliver neutral, high quality decisions and so undermine the legitimacy of the legal system as a whole.[23]
A strong process of recruiting and appointing judges which fulfil the United Nations Basic Principles on the Independence of the Judiciary and guarantees the implementation of the Bangalore Principles of Judicial Conduct is of crucial importance in several respects.[24] First, a sound process and structure of judicial selection and appointment is vital to ensuring the actual independence of the judiciary, and to furthering public trust and confidence in the independence of the judiciary; and second, it is also vital to ensuring judicial integrity.[25]
This is so because it affirms public confidence in the quality of the judges appointed, and serves to identify and eliminate from possible judicial selection candidates who are shown to have a weak grasp of legal ethics, or who have engaged in professional misconduct or corruption.[26]
It is pertinent to note that given the importance of the judicial office the process of appointment and selection of incumbents thereof is often the subject of strong political pressure and sometimes influenced by personal considerations of the appointing authorities. To obviate this risk certain international standards prescribe processes that guarantee transparent, objective and non-discriminatory procedures.[27] Evaluating different systems of appointing judges in light of the need for an independent, accountable and diverse judiciary, USIP highlighted four basic configurations, viz:
i appointment by political institutions;
ii appointment by the judiciary itself;
iii appointment by a judicial council (which may include non-judge members); and
iv selection through an electoral college.[28]
In some countries,[29] for example Nigeria, appointment by a judicial council (known as the National Judicial Council “NJC”) is the applicable mechanism. Judicial councils are bodies that are designed to insulate the functions of appointment, promotion, and discipline of judges from the partisan political process while ensuring some level of accountability.[30]
3.2 Security of Tenure/Mode of Removal of Judicial Officers
It is a fundamental principle of independence that judge’s tenure, inter alia, should be adequately secured by law.[31] Whether appointed or elected; judges should enjoy guaranted tenure until a mandatory retirement age or the expiry of their tenure, if the appointment or election is for a term certain. Revisiting England’s century – long struggle for judicial independence Plank concludes “that the most important element is an assurance that judges will not be removed or disciplined because of their decisions.[32] Tenure – either for life or until a specified age – is the strongest way to provide this assurance.[33]
Security of tenure is intended to protect judges against interference by any external or internal subject (and first of all the appointing authorities) in a discretionary or arbitrary manner.[34] Premature and unjustified termination of a judge’s mandate is a form of improper pressure on the judges themselves; thus, grounds for removal prior the retirement age or expiry of the term of office must be based on well–defined circumstances provided for by law, involving reasons of incapacity or behaviour that renders judges unfit to discharge their function, conviction for a serious crime, gross incompetence or conduct that is manifestly contrary to the independence, impartiality and integrity of the judiciary.[35] Indeed, the jurisprudential basis of Plank’s assertion that tenure is the most important element that directly protects judges from outside pressures[36] may not be meritoriously faulted on any rational basis.
3.3 Financial Autonomy/Fixed and Adequate Compensation
The frontline Ghanaian nationalist, late President Kwame Nkrumah was reported to have said that political independence without economic independence is a ruse.[37] Notwithstanding the context, this is a truism because no institution or person can claim to be truly independent when someone else is in charge of his economic power.[38] Thus funding of courts is closely linked to the issue of judicial independence, in that it determines the conditions in which the courts perform their functions.[39] It is therefore not only required of each state to provide adequate resources to enable the judiciary to perform its functions, judicial finance should also “be exercised free of interference by agents of the executive branch of government, on the same manner that the executive and legislative branches administer the funds appropriated for their internal operations.[40]
Closely related to the issue of financial independence is the need for fixed and adequate compensation for judges. This is said to be the most affirmative institutional element that promotes long-term independence.[41] First, compensation must be fixed and neither the legislature nor the executive may reward or punish judges through salary manipulation in response to decisions in particular cases.[42] Second, salaries must be high enough to allow judges to live in reasonable comfort without resort to inappropriate sources of income such as fees for practicing law on the side or bribery.[43] It is noteworthy that as part of the requirements for judicial independence constitutions of countries like the United States[44] Argentina,[45] Ireland,[46] among others, contain specific prohibitions against reduction of judicial salaries.
3.4 Respect for the Rule of Law/Executive Lawlessness
Although respect for the rule of law cuts across all the other factors affecting the independence of the judiciary, in this paper it will be discussed in particular relation to the compliance of court orders, judgments and decisions of courts.[47] Indeed the most direct and perhaps the most primitive mode of distortion or perversion of the independence of the judiciary is the flouting of positive orders of the court by the executive arm of government. Kehinde[48] argues (and we respectively align with his argument) that “no matter how financially autonomous the Judiciary is, or how effective the judicial process is, it amounts to naught if the other arms of government fail to abide by judicial decisions.”
The effect of such executive lawlessness on the administration of justice can best be appreciated from the dictum of Uwais JSC (as he then was) in the much celebrated case of Ojukwu v Governor of Lagos State[49] to the effect that:
If government treats the Court Order with levity and contempt the confidence of the citizen in the courts will be seriously eroded and the effect of that will be the beginning of anarchy in replacement of the rule of law.
4 The Nigerian Experience with Judicial Independence
The independence of the judiciary is a concept that appears to have been accepted (perhaps in theory) by most common law countries including Nigeria. In Nigeria, this concept finds expression in the vesting of judicial powers of the Federation and States exclusively in the judiciary.[50] The concept is further expounded in section 17(I)(e) thereof which proclaims that “the independence, impartiality and integrity of courts of law and easy accessibility thereto shall be secured and maintained.”[51] It is pertinent to note that even the successive military governments in Nigeria, at least in theory, recognized the concept by the preservation of the provision vesting judicial power in the courts. Eso JSC (as he then was) observed this much in the case of Governor of Lagos State v Ojukwu.[52]InGuardian NewsPapers Ltd v AG Federation,[53] Ayoola JCA (as he then was) declared inter alia, as follows:
It has long been recognized that vesting judicial powers in an independent judiciary is essential to justice and liberty which are the operative ideals of our society and the foundations of our nation. Without an independent judiciary exclusively charged with the exercise of the nation’s judicial powers, there will be an easy betrayal of these ideals and the concept of the rule of law will become empty — it is perhaps to the credit of successive military administrations which in this country have consistently professed its commitment to the rule of law, liberty and justice that the structure of governance it deliberately fashioned preserved the vesting of judicial powers in an independent judiciary and not in itself.
The foregoing may tempt one to hastily arrive at the conclusion that the concept of independence of the judiciary at least in theory, has received the acceptance of both the civilian and military governments in Nigeria. But as rightly observed by Eso JSC (as he then was) this concept ‘should not only be theoretically so but indeed be so seen.’ Accordingly, this section will attempt to xray and analyze the degree to which the operation of the extant constitutional arrangement in Nigeria sustained the judicial independence that the drafters had intended. In doing so the drivers highlighted in section 3 of this paper will be used as a compass.
4.1 Mode of Appointment of Judicial Officers
Under the extant constitutional arrangement in Nigeria Judges are appointed by the Executive on the recommendation of the National Judicial Council and in some cases subject to confirmation by the Legislature. The methods of appointment can be categorized into two, as hereunder described, namely:
- The first category is appointment by the President or Governor acting on the advice of the National Judicial Council 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 method are the Chief Justice of Nigeria,[54] President of the Court of Appeal,[55] Chief Judge of the Federal High Court,[56] Chief Judge of High Court of Justice FCT, Abuja,[57] Chief Judge of a State High Court,[58] Grand Khadi of the Sharia Court of Appeal FCT, Abuja[59] Grand Khadi of the Sharia Court of Appeal of a State,[60] President of the Customary Court of Appeal, FCT Abuja,[61] President Customary Court of a State,[62] and President of the National Industrial Court.
- The second category of appointment is by the President or Governor acting on the recommendation of the National Judicial Council. In this category, there is no requirement for confirmation either by the Senate or House of Assembly. The Judicial officers in this category are: Justices of the Supreme Court of Nigeria,[63] Justices of the Court of Appeal,[64] Judges of the Federal High Court,[65] Judges of the High Court of Justice FCT, Abuja,[66]Judges of the High Court of Justice of States,[67] Khadi of the Sharia Court of Appeal FCT, Abuja,[68] Khadi of the Sharia Court of Appeal of States,[69] Judges of the Customary Court of Appeal, FCT Abuja,[70] Judges of the Customary Court of Appeal of a State,[71] and Judges of the National Industrial Court.
Aguda argues that the fact that judges are appointed by the head of the Executive is neither strange nor does it undermine the independence of the Judiciary.[72] He maintains that this arrangement is similar to what is obtainable in New Zealand where the Justices of the Supreme Court, Court of Appeal and Judges of the High Court are appointed by the Governor–General on the recommendation of the Attorney General advised by the Chief Justice and the Solicitor-General;[73] as well as in the United States of America, where the Article III Judges ie the Justices of the Supreme Court, Court of Appeals and District Judges are appointed to office by the President of the United States with the approval of the U.S Senate.[74] He argues further that the creation of the NJC by the CFRN 1999 is to minimize any executive interference with the process.[75]
There is merit in the argument that the creation of a self-governing council like the NJC can aid in minimizing executive interference in the recruitment/appointment process. Indeed, it can be argued from a point of strength that under the extant constitutional provisions in Nigeria the de-facto appointing body for judges appears to be the NJC. This is because the power to appoint the relevant judges vested in the President or Governor as the case may be is exercisable on either the advice or recommendation of the NJC.
In other words no discretion is vested in the head of the Executive arm; the power has to be exercised only as advised or recommended. This, in our respectful view imports some form of checks and balance which, certeris paribus, ought to secure judicial independence.
It is interesting to note, however, that despite the appearance of a confortable balance (at least in theory) in the appointment process in practice the Executive has a measure of pervasive and overbearing influence in the appointment of judicial officers. For instance, at the state level the appointment of judicial officers are characterized by unhealthy politicking. Most often than not, appointment at that level are made based on political and or personal relationships. The composition of the State Judicial Service Commission which includes the Attorney General, 2 members from the Private bar and 2 other persons who are non-legal practitioners,[76] fertilizes the seed of politicization in the appointment process. These categories of members are typically appointed ‘based on political considerations and more often than not are used to veto important decisions of the Chief Justice of the State especially where his decisions do not go down well with the interest of the government of the day.’[77]
Sometimes undue emphasis is placed on geopolitical or ethnic considerations and in the process utterly incompetent people are appointed based on these considerations.[78] A current case in point is Nworisara Ekeleme Ibe & another v Abia State Judicial Service Commission & Ors[79] wherein the Plaintiffs who are former Magistrates in the state are challenging the on-going judgeship appointment exercise for non-compliance with the 2014 Revised NJC Guidelines and Procedural Rules for the Appointment of Judicial Officers of All Supreme Courts in Nigeria as well as the selection of incompetent and corrupt persons and high manipulation of the process by the former Chief Judge as the then Chairman of the Commission to ensure the appointment of the said persons as Judges of the state.
The Plaintiffs alleged in their court fillings that one of the candidates selected for appointment is the wife of a member of the Abia State Judicial Service Commission together with the former Chief Judge as chairman when the appointment exercise (and selection of the critical persons) was initiated in 2021.[80] Although, this case is yet to be judicially determined, the proximate impulsion to the subject under discussion is the curiosity provoked by the manifest refusal of certain constituted authorities to follow merit based, objective criteria pre-established and clearly laid down by law or by competent authorities.
Similar sentiment can also be expressed with respect to appointments at the Federal level. Although, there is the NJC which recommends the appointment of judicial officers to the President (or to Governors in relation to state appointments) the fact remains that the NJC is largely made up of judges some of whom are appointed on political considerations and may likely be under the influence and control of theose who appointed them ab inoitio. In other words, the extant appointment procedure can be unduly influenced by the political or personal consideration of the appointing authorities.
The suit filed by the Justice Reform Project (JPR) in 2020 to restrain the President of Nigeria from appointing as judges 21 persons recommended by the NJC[81] is of some moment in this regard. The pith and substance of the Plaintiff’s case was that the critical candidates neither met the criteria nor did they satisfy the conditions laid down in the extant Guidelines and Procedural Rules for the Appointment of Judicial officers in Nigeria.
Although, Okon Abang J dismissed the suit on grounds of locus standi;[82] the suit nevertheless placed the issue of the ability, integrity and experience of the critical candidates (and whether the candidates would be able to insulate themselves from the influence of the appointing authorities) on the front burner of public discourse.
4.2 Security of Tenure/Mode of Removal of Judicial Officers
Apparently, the extant constitutional arrangement in Nigeria takes into cognizance the need for security of tenure of judges given the introductory provision of section 292 thereof which forbids their removal from office before the prescribed age of retirement, except in specified circumstance.[83]
The prescribed mode of removal of the Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High Court, Chief Judge of the High Court of the Federal Capital Territory, Abuja and President, Customary Court of Appeal of the Federal Capital Territory, is done by the President acting on an address supported by two-third majority of the Senate; while the Chief Judge of a State, Grand Kadi of a Sharia Court of Appeal, or President of a Customary Court of Appeal of a State may be removed by the Governor acting on an address supported by two-third majority of the House of Assembly of the State; praying that such judicial officer be so removed for inability to discharge the functions of the office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct.[84]
For other judicial officers outside the foregoing brackets the removal is done by the President or as the case may be, the Governor acting on the recommendation of the NJC that the judicial officer be so removed for inability to discharge the functions of the office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct.[85]
Ex-facie, this constitutional provision ought to protect judicial officers against arbitrary removal as the wording thereof provides some form of assurance that a judicial officer will have tenure during good behavior and can only be disciplined or removed in accordance with the constitutional prescription. Unfortunately, however, experience has shown that the involvement of the Executive and Legislature in the removal mechanism raises the same concerns highlighted in the evaluation of the appointment process. Some recent instances readily come to mind.
The first out of the many instances, was the melodrama between the then Chief Justice of Nigeria, Aloysius Kastina Alu CJN (as he then was) and the then President of the Court of appeal, Ayo Isa Salami (PCA) as he then was. The latter was suspended by the NJC over his refusal to apologize to the council and the former. Consequent thereupon, he was compulsorily retired by President Goodluck Ebele Jonathan who acted pursuant to his constitutional authority. Curiously, however, upon the subsequent recall of Salami (PCA) from suspension by the NJC which suspended him, President Jonathan refused to ratify the act of the NJC thus raising questions concerning the politicization of the judiciary and the level of judicial independence in Nigeria.[86]
This event was followed by the controversy surrounding the retirement of Chief Justice Walter Onnoghen who was suspended on 25th January 2019 on account of his trial by the Code of Conduct Tribunal on a charge of non-disclosure of his assets.[87]
Another recent unfortunate event involved the several abortive attempts by the immediate past Governor of Kogi State, Mr Yahaya Bello to remove the Chief Judge of Kogi State for no just cause, using the Kogi State House of Assembly as a willing accomplice. Consequent upon the action of the Executive and the Legislature against the Chief Judge the latter approached the court for the determination of the legality of the actions of the Governor and the parliament. The court ruled that both the Executive and the Legislature cannot remove the Chief Judge Nasir Ajanah without the recommendation of the NJC. Omolaye–Ajileye J (as he then was) who adjudicated the matter held, inter alia as follows: [88]
By item 21 of the Third Schedule of the 1999 Constitution (as amended) the NJC is the body empowered to exercise disciplinary control over all judicial officers in Nigeria. It is also the NJC, established under section 153 (1) of the constitution as amended that is empowered to make recommendations to the Governor of a state under item 21(d) of the Third Schedule to the Constitution. To allow only the House of Assembly and the Governor of a State to remove a Chief Judge of a state or any judicial officer for that matter, without the input of the NJC will be monstrous and outrageous as it is capable of destroying the very substratum of justice and introducing a system of servitude, utterly inconsistent with the constitutional independence of the judiciary.
In reaction to the above judgment, the Governor of Kogi State in a show of primitive force and influence over the purse decided to starve the judiciary of funds and suspended the payment of salaries of workers in the judiciary.[89] Clearly, these events raise questions about the extent to which Nigerian judges can exercise their judgment free from inappropriate outside pressures; and they undermine, in no small way, public confidence in the courts and their personnel.
4.3 Financial Autonomy/Fixed and Adequate Compensation
The extant Nigerian Constitution, doubtless contemplates financial independence for the judiciary by providing that ‘any amount standing to the credit of the judiciary in the Federation Account shall be paid directly to the National Judicial Council for disbursement to the heads of the courts established for the Federation and the States under section 6 of the constitution”[90] and that any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation shall be ‘paid directly to the National Judicial Council for disbursement to the heads of the courts established for the Federation and the State under section 6 of the Constitution.’[91] The Supreme Court of Nigeria clarified in the case of A.G Federation v A.G Abia State & Ors[92] that it is the Consolidated Fund and not the Federation Account that is charged with the salaries of Judicial Officers in the Federation.
The legislative intent of these constitutional provisions, we opine, is to disentangle the judiciary from the web of the other arms of government and ensure that the judiciary is not subservient to them in respect of finances to execute its constitutional responsibilities. Sadly, these provisions are complied with more in breach than in observance especially at the state levels. The issue of management of funds for the judiciary at the state level has been a perennial problem in Nigeria. State Governors are known to administer the funds of the other two arms thereby compromising their independence.[93]
This problem appears to be worse for the judiciary who is the least funded of the three arms and have had to contend for funding along with other arms and agencies of government for its capital projects e.g. purchase of vehicles, office equipment, construction of building, renovations, repairs etc.[94]
This pathetic situation the judiciary finds itself is perhaps vividly captured in the lamentations of a former Chief Justice of Nigeria, Tanko Muhammed CJN (as he then was) who was quoted to have said the following:[95]
[I]f you say that I am independent but, in a way, whether I like it or not, I have to go cap in hand asking for funds to run my office, I have completely lost my independence. It is like saying a cow is free to graze about in the meadow, but at the same time tying it firmly to a tree. Where is the freedom?
In 2018, the President signed a constitution amendment passed by the 8th National Assembly to provide for direct funding of the judiciary and houses of Assembly of States from the Consolidated Revenue Fund of the State to insulate them from external interference and enhance their independence.[96] Predictably, this constitutional provision like its forerunners[97] was not observed by many states, hence the President sought to enforce the amendment by issuing Executive Order 10 in May 2020 to make it mandatory for all states to include the allocations of both the legislature and the judiciary in the first line charge of their budgets as against the prevailing practice where the State Governor manage the funds for the other two arms.
Aggrieved by the Presidential intervention, the States sued the Federal Government leaving the Supreme Court in 2022, to rule that the President acted ultra vires and that the Executive Order 10 was unconstitutional, illegal, null and void.[98] It is pertinent to note that this breach of the constitution had led to strike actions by the Judiciary Staff Union of Nigeria (JUSUN), the most severe being a two-month strike in 2021 that paralysed the courts following a further violation by State Governors of an agreement with the Union to implement financial autonomy as contained in the 2018 Constitutional Amendment.[99]
What is more, only a few states honoured the terms of the Memorandum of Action (‘MOA’) for the full implementation of the subject constitutional provision entered into by the Union and the 36 State Governors despite the fact that the Union called off the strike on the strength of the MOA.[100] It is however, hoped that the recently signed Constitution Alteration Act[101] will usher in the much needed solution to ensure that the Judiciary (and the Legislature) are fully in control of their budget and that all budget components i.e. recurrent and capital expenditure are automatically payable or released as soon as the state budget is passed by the State Assembly and signed by the Governor.[102]
Anything to the contrary will further dent and lower the image of the Nigerian Judiciary. The current situation where the judiciary lobbies the governors for recurrent and capital expenditure[103] is bad enough as it exposes it to ridicule and disdain. Our judiciary should not only be financially independent but must be seen to be so to be able to deliver justice as appropriate.
There is also the issue of the welfare or the condition of service of judicial officers in Nigeria. As stated earlier in this work, salaries of judicial officers ought to be high enough to allow judges to live in reasonable comfort without resort to inappropriate sources of income and corrupt practices.[104] Although the remuneration of Judges of the Superior Courts of records has been greatly improved upon in recent years,[105] it is respectfully submitted that the raise is just a tip of the iceberg when compared with the salary structure of judicial officers comparator jurisdictions. Even with the said salary structure a judex earns less than a graduate secretary in a Multinational Oil and Gas Company in Nigeria or a rising junior in the legal department of big consulting firms, for instance. This is infra dig! The nation cannot expect to secure a permanent supply of good, incorruptible and independent judges for the price of a rising junior.
More worrisome is the lot of Magistrates, Area and Customary Court Judges and Sharia Court Judges who are under the Constitution of the Federal Republic of Nigeria not covered by the term “Judicial Officers. It is indeed difficult to rationalize the non-inclusion of these categories of courts among the courts established under the constitution. This puzzle exercised the jurisprudential ingenuity of the quintessential Niki Tobi JCA (as he then was) who wondered whether the non-inclusion was borne out from the common law tradition of dichotomizing between the higher bench and the lower bench.[106] The cerebral jurist queried the basis of this ugly situation which has lived with the legal system over the years. In his ipsisima verba:
The expressions, “higher bench” and lower bench are rather unfortunate. Apart from the fact that they have other roots in the common law system, there is no legal basis for the dichotomy. This apart, the grammar of the expression is not quite sound. In the rules of grammar and syntax, one cannot use the comparative adjective without a basic adjective at the base (in our context “low” or high”), and the superlative at the end (in our context “lowest” or “highest”). If the magisterial bench is designated the “lower bench” two questions arise: First, which is the “low bench.” Second, which is the “lowest bench? One can extend the same argument in respect of the “higher bench” thus: which is the “high bench” and which is the highest bench”? And one gets into more trouble if the two expressions are related together. The result is clear artificiality. It is also bad grammar. It is a most anachronistic cleavage which has no practical utilitarian value in the administration of justice. The cleavage should be dropped forthwith.[107]
We couldn’t agree more with the law Lord. This dichotomy which may be contributory to the disparity in the treatment of the so called ‘lower bench’ and ‘higher bench’ is most unfounded. The temporary incumbents of the so called ‘lower bench’ all handle as many (if not more) cases as their senior colleagues on the so called ‘higher bench,’ they perform the same roles as arbiters in the temple of justice and dispense justice accordingly; but their salaries and allowances are not high enough to allow them live in reasonable comfort without resort to inappropriate income. It is a nigh impossibility to expect such Ministers in the Temple of Justice whose salaries are so meagre that they are always faced with grave financial anxiety to be really independent.
Closely related to the foregoing is the issue of charging the salaries of judicial officers upon the Consolidated Revenue Fund. Stricto sensu, the implication thereof is that salaries of judicial officers cannot be altered to their disadvantage. This safeguard which is provided under sections 81(3) 1 and 121 (3) CFRN 1999 appears to have a wide global appeal. It is similar to (though not impari materia with) art. III of the United States Constitution which provides that judges, both of the Supreme Court and inferior courts shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.[108]
It is instructive to note that even though the 16th Amendment to the U.S Constitution empowered Congress to lay and collect taxes on incomes from whatever sources derived, the US Supreme Court held in Evans vs. Gore [109] that a tax on the income of a judge by virtue of the 16th Amendment was a diminution of his salary and therefore ultra vires. In Nigeria, it is common knowledge that income taxes and all other kinds of taxes are deducted from the salaries of judges and the helpless judges under the dangerous stress of the time loyally accept this practice.
Although no case has arisen on this issue in Nigeria, in our respectful view, the deduction of taxes from the salaries of judicial officers in Nigeria is not only unconstitutional, it is incompatible with and constitutes an affront on the inveterate principles of judicial independence and ought to be rescinded forthwith.
4.4 Respect for the Rule Of Law
A veritable threat to the independence of the judiciary and rule of law is the wilful and flagrant disobedience of valid and subsisting court orders.[110] This is regarded as a brazen attempt to emasculate the judicial system.[111] A review of the Nigerian experience reveals several worrying instances. Indeed, there are plethora of cases in which positive, valid and subsisting orders of courts of competent jurisdiction in Nigeria have been treated with utter levity, ignominious recalcitrance, overwhelming arrogance and or culpable indifference by the Executive arm of government.
Taiwo & Lateef,[112] noted that the executive arm of government since 1999 raised the bar of disobedience of court orders to an unimaginable height and that this creates the impression that the executive is above the law. In support of this thesis, the learned authors cited the ignoble disobedience of the Supreme Court judgment in the case of AG Lagos v AG (Fed)[113] during President Obasanjo’s administration. Agreeably, the judiciary has no constitutional powers to compel either the Executive or the Legislature to obey its decision but a reasonable government more than any other party a jural contest should be wary of the orders of courts of law. As beautifully reasoned by Uwais JSC (as he then was) in Governor Lagos State v Ojukwu[114] ‘if anyone should be wary of orders of courts, it is the authority for they more than anyone else, need the application of the rule of law in order to govern properly and effectively.’
Harassment and intimidation of judicial officers, invasion of court rooms and residences of judges by law enforcement agencies etcetera exemplify some inappropriate outside pressures that suffocate judicial independence in Nigeria. Recent examples of these acts of executive brigandage include the invasion of the Federal High Court, Abuja presided over by Justice Ijeoma Ojukwu in January 2020 by operatives of the DSS in their attempt to arrest Mr Omoyele Sowore;[115] the invasion and ransacking of the residence of Honourable Justice Yinusa Musa in Lokoja in a manner that defied logic and in a matter that was not connected with the performance of her official duties;[116] and the raiding of the residence of Mary Odili JSC (as she then was) in the evening of October 29 2021 by armed security operatives.[117]
5. Conclusion
In his witty, and yet intellectually profound style, Oputa[118] summarized the state of the concept of Judicial Independence in Nigeria, thus:
In Nigeria, we talk glibly about the independence of the judiciary. We proclaim it in our constitution but in actual practice we do all that is possible to deny our judiciary true and de facto independence….
Although the great jurist made the above observation during the military regime, that observation, in our respectful view is still valid today and is hereby endorsed.
The extant Nigerian Constitution makes commendable advances in some respects in relation to Judicial Independence, but also contains a number of substantive flaws that hinder the objectives of ensuring the operationalization of same in concrete terms. This paper has highlighted in section 4 above some of the issues that jeopardize the operationalization of the concept in Nigeria. It is well possible that some of the hindrances pointed out in this paper may be addressed through certain constitutional and procedural changes; but legislative enactments without more do not and cannot guarantee judicial independence.
The judicial officers themselves must endeavour to demonstrate greater activism in the face of the spate of executive aggression by way of wanton disregard of court orders, etc. Judges are ‘no respecter of persons, principalities, government or the powers,’[119] and consequently must have the courage to tell the government of the day vide their judgment as Adeyinka J. did in AG Federation v Ogunseitan,[120] that:
If Citizens … follow the Governments bad example and refuse to obey court orders, it will lead not only to the disruption of the due administration of justice— but also to chaos, anarchy and ultimate dismemberment of the Federal Republic of Nigeria.
Likewise, it behoves the lawyers as auxiliaries of the judiciary, to make sure that the provisions of all constitutional and anxilliary legislative enactments that give impetus to Judicial Independence are truly maintained and actualized; and orders of courts of competent jurisdiction are complied with. And finally if we accept the view (and there is no reason one should not) of Ayoola JCA (as he then was) that ‘—an independent judiciary is essential to justice and liberty which are the operative ideals of our society and the foundations of our nation’ and that ‘without an independent judiciary exclusively charged with the exercise of the nations judicial powers, there will be an easy betrayal of these deals and the concept of the rule of law,’[121] then the will of the people through the ballot paper as an effectual counter –active balance to the powers of both the executive and legislative arms of government must be readily and freely exercised to check the political factions that might otherwise try to erode judicial independence. Absent these (and perhaps other necessary) measures, the prospects of the evolution of Judicial Independence in all it’s fundamental aspects in Nigeria will remain a forlon hope.
Odinkalu in an assessment of Judicial Independence 62 years after Nigeria’s Independence, concluded that ‘Nigeria’s law students are still wondering what judicial independence was supposed to mean to begin with. The lawyers appear to have given up on it. The politicians have taken care of it. And as for what most of the judges think it’s best left unsaid.’[122]
If this is so then it is clearly difficult to say, in our present circumstances, that judicial independence in Nigeria is either might or myth. Like most of the judges, we think it’s best left unsaid!
*LLM (LAGOS), Ph.D ABD, Senior Lecturer and Director, Prof Epiphany Azinge Centre For Immigration Law Studies, Gregory University, Uturu; Principal Partner, TheFIRM Chambers.
[1] James, I (1603-1625) dismissed Lord Coke as Chief Justice of the King’s Bench in 1616; Charles I (1625-1649); Charles II (1650-1685), and James II (1685-1688) dismissed with frequency judges who did not decide cases the way that the monarch desired. W Holdsworth, ‘A History of English Law (2nd ed; 1924) 509-14
[2]A former President of the Court of Appeal – Justice Ayo Salami (PCA) was suspended by the National Judicial Council (NJC) over his alleged refusal to apologies to the NJC and the then Chief Justice of Nigeria, Justice Aloysius Katsina Alu (CJN) and was later compulsorily retired by the then President – Goodluck Jonathan who purported to act under his constitutional authority. Strangely, upon his recall from suspension by the NJC which suspended him, the President refused to ratify the acts of the NJC
[3] J Ogunye, ‘Analysis: Suspension of CJN Onnoghen. An illegal Executive Coup against a Recalcitrant Chief Judicial Officer,’ Premium Times, <https://www. premiumtimes.ng.com> accessed 15 August 2021
[4]A Ejekwonyilo, ‘2021: Covid -19, JUNSUN Strike add to Nigeria’s Justice Sector’s Woes,’ Premium Times, <https://www.premiumtimes.ng.com> accessed 17 May 2023
[5] Ibid
[6] Sahara Reporters, ‘Yahaya Bello, Kogi House of Assembly Cannot Remove Chief Judge – High Court,’ Sahara Reporters New York, <https://www.sahara reporters.com> accessed 17 May 2023
[7]CA Oputa, The Judiciary under the Military Regime J.I.C Taylor Memorial lecture (Faculty of Law University of Lagos, 1997) 36
[8] Ibid
[9]AB Abdulkadir, ‘The Right to a Healthy Environment in Nigeria: a Review of Alternative Pathways To Environmental Justice in Nigeria,’ (2014) Afe Babalola University Journal of Sustainable Development, Law and Policy 121
[10] SS Abrahamson, ‘Thorny Issues and Slippery Slopes: Perspectives on Judicial Independence,’ (2003) (64) Ohio St L.J 3
[11] JA Cohen, ‘The Chinese Communist Party and “Judicial Independence”,’ <https://www.Ajstor.org> accessed on 18 May 2023
[12]Plank TE, ‘The Essential Elements of Judicial Independence and the Experience of Pre-Soviet Union,’ (1996-1997) (5) (1) William & Mary Bill of Rights Journal 6
[13] Ibid
[14] 80 US (13 Wall) 335, 347 (1871)
[15] Oputa, (n7) 36
[16] Ibid
[17] Ibid
[18] Plank, (n12) 8
[19] Ibid
[20]United Nations Office on Drugs and Crime, ‘E4J University Module Series: Crime Prevention and Criminal Justice –Module 14: Independence of the Judiciary and the Role of Prosecutors,’ <https://unodc.org> accessed on 18 May 2023
[21] Ibid
[22]United States Institute of Peace, ‘Judicial Appointments and Judicial Independence,’ <https://www.USIP.org> accessed on 9 May 2023
[23] Ibid
[24] United Nations Office on Drugs and Crime “Selection and appointment of Judges and Judicial Independence,” available at <https://www.unodc.org> accessed on 21 May 2023
[25] Ibid
[26] Ibid
[27]General Assembly Resolutions 40/32 and 40/146 paras. 10 and 13 respectively <https://www.un.org>ga>resolutions> accessed on 09 May 2023
[28] United States Institute of Peace, (n22)
[29]Other countries that make use of self-governing bodies or councils in the appointment/selection of judges include France, Italy, Mongolia, Poland, Romania, Spain and Ukraine
[30] USIP, (n22)
[31] GA Resolution 40/32 and 40/146 paras 11-13, note 27
[32] Plank, (n12) 10
[33] Ibid
[34] UNODC, (n20)
[35] Ibid
[36] Plank, (n12) 9
[37] A Tunji, ‘A Judiciary in Chains,’ The Nation Nigeria, Sunday September 29, 2019. P17
[38] LO Taiwo and MA Lateef, ‘National Judicial Council: An Albatross Against the Independence of the Judiciary in Nigeria,’ <http://www.winonline-org> accessed on 9 May 2023
[39] UNODC, note 20
[40] National Conference of Court Administrators and Conference of Chief Justices, Statement of Principles: The Need for Independence in Judicial Administration, (1966) (50) J.AM. JUD.SOC’Y 129, cited in Ferguson WS, ‘Judicial Financial Autonomy and Inherent Power,’ (1972) (57) Cornell L Rev 975 <http://Schorlarship.law.cornell.edu/clr/vol 57/1SS6/3> accessed on 9 May 2023
[41] Plank, (n12) 29
[42] Ibid, 30
[43] Ibid 30; for instance, in Nigeria, serving judges are not allowed to practice law or work for business corporations. Ditto with Federal Judges in the United States
[44]U.S CONST. art.. III, S 1
[45]ARG. CONST. art. 110
[46]IR. CONST. art. 35.5
[47]L Kehinde, ‘Achieving Judicial Independence in Nigeria,’ <https://www.linkedin. com/pulse/achieving-judicial-independence-nigeria> accessed on 23 May 2023
[48]Ibid
[49](1986) 5 NWLR (Pt 398) 703
[50]Constitution of the Federal Republic of Nigeria (as Amended), s 6(6)(a) (Constitution)
[51]Ibid
[52] (n48); Eso JSC stated in his judgment in this case as follows ‘…by virtue of the Constitution (Suspension and Modification) Decree 1984 No.1, a good number of the provisions of the Constitution were suspended. Indeed, what was left was what has been permitted by the Federal Military Government to exist. All the provisions relating to the judiciary were saved. Section 6 of the Constitution the most important provision in so far as the institution known as the judiciary is concerned, which vests in courts the judicial powers of the Federation was left extant.’ (1995) 5 NWLR R (Pt 398) 703
[53] (1995) 5 NWLR R (Pt 398) 703
[54] Constitution, s 231(1)
[55] Ibid, s 238(1)
[56] Ibid, s 250 (1)
[57] Ibid, 256(1)
[58] Ibid, s 271(1)
[59]Ibid, s 261 (1)
[60] Ibid, s 276 (1)
[61] Ibid, s 266 (1)
[62] Ibid, s 281 (2)
[63] Ibid, s 231 (2)
[64] Ibid, s 238 (2)
[65] Ibid, s 250 (2)
[66] Ibid, s 256 (2)
[67] Section 271 (2)
[68] Ibid, s 261 (2)
[69] Ibid, s 276 (2)
[70] Ibid, s 266 (2)
[71] Ibid, s 281 (2)
[72]OO Aguda, ‘A Legal Review of the Independent Status of the Judiciary In Nigeria,’ <https://www.researchgate.net> accessed on 09 May 2023; Appointment process in New Zealand, <https://www.Courtsofriz.govt.nz/about-the-<judiciary/role-judges/appointments> accessed on 9 May 2023
[73] Ibid
[74] Ibid
[75] Ibid
[76] Constitution, Part II of the Third Schedule
[77] I Abdullahi, ‘Independence of the Judiciary in Nigeria: A myth or Reality,’ (2014) (2) (3) International Journal of Public Administration and Management Research (IJPAMR) P60
[78] Ibid
[79] FHC/Abj/CS/1900/2022
[80] Ibid
[81] JRP Foundation Ltd/Gte v The President of the Federal Republic of Nigeria & 24 Ors
[82] FHC/ABJ/CS/602/2020 (Unreported)
[83] Constitution
[84] Constitution, s 292 (a) (i) & (ii)
[85] Ibid, s 292 (b)
[86] IU Ononye and Others, ‘Independence of the Judiciary; The Nigerian Experience Journal of Public and Private Law,’ (2020) (10) UNIZIK 71-72
[87] Ogunye, (n3)
[88] Suit No HC/KK/IICV/2018
[89] Sahara Reporters, (n6)
[90] Constitution, s 162 (9)
[91] Ibid, s 81 (3) and Section 121 (3)
[92] (2002) 6 NWLR (Pt 7640) 452 at 688 PLAC, (n92) 1
[93] Policy and Legal Advocacy Centre (PLAC), ‘Constitutional Amendment Clarifies Financial Independence of the State Legislature and Judiciary,’ (March 2023) Fact Sheet, 1
[94] Ibid
[95]Punch Editorial, ‘Democracy without Independence of Judiciary,’ (2019) Sunday, October 6, 16
[96]Ibid
[97]The President assented to the Constitution (First Alteration) Act No.6 (2010) which places the judiciary and some other agencies of government on the first line charge i.e. providing that the amount standing to the credit of the judiciary be paid to the NJC for disbursement to the heads of courts established for the Federation and for the States under section 6 of the CFRN 1999. The President also assented to the Constitution. (Fourth Alteration) Act No.4 (2014) which grants financial autonomy to the state judiciaries. See also the case of JUSUN vs. National Judicial Council & 73 Ors (Unreported Suit No. FHC/ABJ/CS/667/15 where the court held that it was unconstitutional for the executive to withhold or release piecemeal funds standing to the credit of the judiciary. Sadly, despite these interventions, financial independence of the judiciary remained a mirage
[98] BC Onochie and Others, ‘Supreme Court Throws Out Buhari’s Executive Order 10,’ <https://www.guardian.ng> accessed on 09 May 2023
[99] Ejekwonyilo, (n4)
[100] (n95)
[101] Constitution of the Federal Republic of Nigeria 1999 (Fifth Alteration) No6 Act 2023
[102] The amendment explicitly provides in section 121 (3) of the Constitution, that any amount standing to the Credit of the House of Assembly or the Judiciary in the Consolidated Revenue Fund of the State shall be paid directly into the account of the Assembly and that of the heads of the Courts concerned. The amendment also establishes an eleven-member Disbursement Committee for each State chaired by the State Commissioner of Finance
[103] B Nwabueze, Constitutional Democracy in Africa, (Ibadan: Spectrum Books Ltd 2003) 290
[104] Salaries must also be high enough to attract to the judiciary the more able and better qualified members of the Bar to the Bench; attracting able judges will help sustain a reasonably high respect for the judiciary.
[105] Abdullahi (n77)
[106] N Tobi, The Nigerian Judge, (A&T Professional Publishers 1992) 19
[107] N Tobi, ‘The Independence of the Judiciary: Real or Unreal,’ Paper Presented at the First Rivers State Law Conference held at the Rivers State University of Science and Technology Nkpolu Port Harcourt on 27th October 1989
[108]The Constitutions of Argentina, Ireland, Common Wealth of Australia, British North America, (Canada) and India all prohibit the diminution of Judge’s Compensation; Argentina Constitution, art 110; Ireland Constitution art 35.5; Commonwealth of Australia Constitution, s 72; British North America, (Canada) s 100 and India Constitution s 125
[109] (1902) 253 US 245; Miles v Graham (1925) 268 U.S. 501
[110] Taiwo and Lateef, (n38) 205
[111] Ibid
[112] Ibid
[113] (2004) 18 NWLR (Pt. 904) P1
[114] (1986) NWLR (Pt 18) P621
[115] Taiwo and Lateef, (n38)
[116] Editorial, Vanguard Newspaper, Nigeria (2019) Tuesday July 16, 18
[117] Ejekwonyilo, (n4)
[118] Oputa, (n7) 33
[119] Per Oputa JSC (as he then was) in Ojukwu v Governor of Lagos State, (n49)
[120] Unreported Suit No LD/1799/92 of 2/7/92
[121] Guardian Newpapers Ltd v Attorney Generation of the Federation (1995)5 NWLR )Pt 398) 703
[122] CA Odinkalu, ‘Judicial Independence 62 years after Nigeria’s Independence,’ <https://www. guardian.ng> accessed on 09 May 2023