Introduction.
Over the years, there has been an increasing reliance on the court to decide on cases where major issues of public interest are in conflict. The behaviour of the Judges, their independence, integrity and impartiality in dealing with such cases has been brought under heavy public scrutiny. This article will discuss the extent of the independence of the Nigerian Judiciary.
The Judiciary.
The Judiciary is one of the three arms of the Nigerian Federal Government. It is represented by the Courts i.e., Supreme Court, Court of Appeal, Federal High Court, High Court of States and FCT, Sharia Court of Appeal of States and FCT, Customary Court of Appeal of States and such other Court as may be authorised by law. They are charged with the responsibility of interpreting the law and upholding the rule of law. In any democratic society such as Nigeria, the arms of government are guided by the principle of separation of powers. The principle of separation of powers provides that each arm of government should exist independent of the other. This means that the Judiciary should exist independent of the Executive and Legislative.
The Independence of the Judiciary.
In Nigeria, the independence of the judiciary is guaranteed by the 1999 Constitution of the Federal Republic of Nigeria, as amended. Section 17 (2)(e) of the 1999 Constitution provides that the independence, impartiality and integrity of courts of law and the easy accessibility to the courts of law shall be secured and maintained. The independence of the judiciary ensures that the Judicial officials are free from any outside pressure or influence in the exercise of their judicial functions. The Judiciary is not to be subject to any authority other than the law that they are charged to uphold. The United Nations Basic Principles on the Independence of the Judiciary (1985) states that “the term of office of Judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.” From this, we can pick out three major determinants of an independent judiciary, they are;
- Mode of appointment and removal of judges.
- Security of tenure and Remuneration of judges.
- Freedom from political and other interference.
The Mode of Appointment and Removal of Judges.
Decisions in appointment and removal proceedings of Judges should be subject to an independent review. The constitutional provision for appointment is worded in such a way that the President or Governor who are members of the Executive cannot appoint a judge without recourse to the National Judicial Council or Judicial Service Commission. However, the appointment process may still be manipulated as the President or Governor may refuse to appoint a person recommended, if such person is not their preference.
The National Judicial Council has the power to recommend the removal of judges and exercise disciplinary control over them. See the case of Elelu Habeet v A.G. Federation. In this case, the Kwara State Governor through the State House of Assembly removed the Chief Judge of the State. The Supreme Court ruled the removal to be unlawful holding that the Chief Judge cannot be removed without recommendation from the National Judicial Council. This shows that even the courts are instrumental in maintaining the independence of the Judiciary.
Judges should be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties. Section 292 (1) of the 1999 Constitution provides that a judicial officer shall not be removed from office before the age of retirement except on grounds of his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or misconduct or contravention of the Code of Conduct. This prevents judges from being removed based on the whims of the Executive and Legislative.
Security of Tenure and Remuneration of Judges.
Judges, when appointed, should have guaranteed tenure of office until a mandatory retirement age or the expiry of their term of office, where such exists. Section 291 of the 1999 Constitution sets the age of retirement of judges at sixty-five years.
It is the duty of the Federation and the State to provide adequate resources to enable the judiciary to perform its functions to secure the independence of judges from financial pressures. The allocation of funds to the Judiciary is on the Federation and State as the remuneration of Judges is made a charge on the Federation or State Consolidated Revenue Fund. However, the involvement of the Executive in the budgetary process of the Judiciary may negatively impact the independence of the Judiciary. This is because the Executive can propose unfavourable or inadequate budgetary allocation for the Judiciary which can make the Judges and other judicial officials susceptible to bribery.
Remarkably, there has been significant improvements made to the salary, allowances and benefits of judges over the years which hopefully prevents them from engaging in corruption. However, this improvement does not extend to Magistrates, Customary, Area and Sharia Court Judges thereby leaving them vulnerable. This is because they are not regarded as judicial officials but as civil servants even though they perform the same function as their senior counterparts.
Freedom from Political and other Interference.
The principle of the independence of judiciary requires that there shall not be any inappropriate or unwarranted interference with the judicial process. However, what we see in practice is interference from both the Executive and Legislative arms of government.
Firstly, the need for legislative approval is a political interference in the appointment process of Judges and a threat to judicial independence.
Secondly, the Executives blatant disobedience of court orders and non-compliance with due process of the law poses another threat to judicial independence. An example is the removal of Justice Walter Onnoghen as Chief Justice of the Federation by President Buhari. His removal was supposedly in compliance with an order issued by a tribunal after hearing a case on alleged breaches of the Code of Conduct by him. This happened even after courts with higher jurisdiction had ordered that the proceeding at the tribunal be halted. The action of the President was a clear breach of judicial independence as the order to halt proceedings at the Tribunal was completely disobeyed and due process was not followed for the removal of Justice Walter Onnoghen.
Conclusion.
The Nigerian Judiciary cannot be truly independent so long as the Executive and Legislative are able to interfere with the judiciary’s independence. Although the constitution does a lot in maintaining the independence of the judiciary, there is still more that needs to be done to secure its independence.
References
- Section 6, The 1999 Constitution of the Federal Republic of Nigeria, as amended.
- Section 4, 5 & 6, The 1999 Constitution of the Federal Republic of Nigeria, as amended.
- Montesquieu, The Spirit of the Law XI (1949) Chapter 6.
- United Nations Basic Principles in the Independence of the Judiciary (1985).
- Chapter VII, The 1999 Constitution of the Federal Republic of Nigeria, as amended.
- Hon. Justice Raliat Elelu-Habeeb & Anor v The Hon. Attorney General of The Federation & Ors (2012) LPELR-SC,281/2010.
- Ibid
- United Nations Basic Principles in the Independence of the Judiciary (1985).
- Ibid
- Section 84, The 1999 Constitution of the Federal Republic of Nigeria, as amended.
