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The independence of the judiciary
has been a clamour over the years, and it has even been a table talk among
scholars.
Before
dancing into this myriad or the reality to know whether the independence is
constitutionally recognized or declined, we must first know what the
independence of the judiciary actually means.
Independence has been defined by
the Black's Law Dictionary to mean "the state or quality of being
independent", whilst Judiciary has been defined as the system of court of
justice in a country.
Independence of the judiciary in a
simple terminology means the ability of a judge to decide a matter free from
pressures or inducements. While Judicial independence based on an institution
means the way by which the judiciary which is the third arm of government are
being separated from the other two arms of government which are the
*Legislature* and the *Executive*...
Another
definition of the independence of the judiciary is to have the free will to
uphold the Rule of law and aid in the attainment of justice in a society.
The independence of the judiciary
is fully anchored in Section 6 of the Constitution of the Federal Republic Nigeria,
1999 as amended hereinafter called the "Constitution" which gives the
judicial powers to be vested in the court.
Now
meticulously perusing that section (supra), you will agree with me that, that
is the first and foremost step by which the constitution which is the ground
norm, the fons et origo, the beginning
and the end, the alpha and the omega and which everybody must dance to the
music/melody by which it plays, whether good or bad and which everybody must
kowtow for. As seen in the statement of Nikki Tobi(JSC)as he then was, in the case of AG Abia v AGF guarantees the
independence of the judiciary, because the constitution vividly separated the
judiciary from the other organs of government which are the legislature in
section 4 and Executive in Section 5 of the 1999 CFRN as amended 2011.
Having
been that the judiciary is fused under either of those two arms (supra), then
we cannot be talking of constitutional independence. Now being constitutionally independent, it will make the
court which is the last hope of the common man to interpret laws and seat in the
adjudication of Justice without fear nor favour, and also check the caprices of
other arms of government.
The
constitution also guarantees the independence of the judiciary in Section
6(6)a) and (b) of the 1999 CFRN which makes all persons and authorities to be
subject to the court.
With
that section (supra), you will agree with me that it is a clear separation
because that section makes the judiciary not to be afraid. Also it makes even
the highest office holder in the country "the president" to be subject
to the court jurisdiction even though he is guided by the blood of immunity in
Section 308 of the constitution.
Also
Section 4(8) which puts a bar or gives a bar to the legislators in making any
law that will intend to oust or purport the jurisdiction of the court.
With that section (supra), it
simply means that the court can seat in all matters whether being civil or
criminal or Election. And it makes everyone in the country and all persons to
be subject to the jurisdiction of the court.
Also,
with that section (supra), even the president which is the highest office
holder in the country cannot seat as a judge or runaway from court processes or
prevalent to the court.
Having established the
constitutional independence of the judiciary, it is worthy to know the ways by
which this constitutional independence has been thwarted and subjugated in our
society (Nigeria as a case study). In establishing
that supra, I will list some of the ways by paragraphs:
-Appointment and Removal of
judicial office staffs.
-The Budgetary provisions
(process)
-The
Role of the Executive arm of govern politicians in the interference process of
the freedom of the judiciary.
To paragraph one and two above.
Not minding the Doctrine of Separation of Powers in Section 4, 5 and 6 of the
constitution, the appointment and dismissal of judges are vested in both the hands of the Legislature
and the Executive arm of government. See the Appointment sections: 231, 238,
250, 256, 261,266, 271,276,281 and 288. That gives the Executive arm of
government the power to appoint justices either at the Supreme Court of Records
or the Inferior Court of Records.
See also the Removal of Judicial
office holder in Section 292 which is also vested in both the hands of the
Executive and the Legislature.
That
above is a threat to the judiciary and allows executive and legislative
rascality to the detriment of a judicial officer.
Despite the Security of tenure as
encapsulated in Section 291 and remuneration of judicial staffs in section 84,
a judicial staff is not still free from the dagger of the Executive and
Legislature if he/she(judicial officer) does not dance to the tune of the music
of either of both arms.
We
all know the drama that occurred between the former chief Justice of Nigeria,
Justice Aloysius Katsina and the Former President of the court of Appeal,
Justice Ago Isa Salami.
To
paragraph three above. By
the provisions of the 1999 Constitution, which
grants direct funding status to all the
superior courts of records, there are three
sources of funding for the judiciary. The
superior courts of record are courts
established by the Constitution, including the
Supreme Court, Court of Appeal, Federal High Court,
State High Court, Sharia Court of Appeal, Customary
Court of Appeal and the National Industrial
Court. And by the Constitution, all the aforementioned
courts are to be funded from the Consolidated
Revenue Fund of the Federation, the
Consolidated Revenue Fund of the State, and the Federation Account. According
to section 84 (2) (4) and (7) of the Constitution,
the capital and recurrent expenditure of
judicial officers of superior courts shall be
taken from the Consolidated Revenue Fund of
the Federation.
In other
words, the remuneration, salaries and allowances
of judicial officers in the superior courts
are to be charged on the Consolidated Revenue
Fund of the Federation. And for the states,
section 121 (3) of the same document provides
that any amount standing to the credit of the
judiciary shall be paid directly to the head of
courts concerned. That is to say, section 124 (1)
(2) and (4) says the remuneration, salaries and
allowances payable to judicial commission shall
be charged upon the Consolidated Revenue of
the State. Unfortunately, all these provisions are
often observed in the breach – to the detriment
of fiscal autonomy for the third arm of
government.
Desirous
of seeing the above constitutional provisions upheld
in the country’s annual budgeting ritual,
foremost human rights activist and former
president of the Nigerian Bar Association
(NBA), Dr. Olisa Agbakoba (SAN) has elected to
lead the struggle to ensure direct funding for
the judiciary from the Federation Account. In
2013, he filed a suit at the Federal High
Court to this effect. The suit, numbered FHC/ABJ/CS/63/2013,
is against the Attorney General of the Federation
(AGF), the National Judicial Council (NJC),
and the National Assembly by originating
summons.
In
the suit, Agbakoba contends that section 81(1)(2) 1999 Constitution excludes the remuneration, salaries and allowances and recurrent expenditures of the judiciary from the President’s Appropriation Bill, being charges upon the Consolidated Revenue Fund of the Federation. He said section 81(3)(C) of the same Constitution also guarantees direct payment to the NJC of any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation. Among other things, the Plaintiff’s position is that sections 84
(2) and 84 (7) of the 1999 Constitution make the
remuneration, salaries and allowances and recurrent expenditures of the judiciary charges upon the Consolidated Revenue Fund of the Federation, placing them on the “first line” of funding from the Consolidated Revenue Funding above Executive Appropriation Control. The defendants, therefore, are in joint and continuing breach of sections 81 and 84 of the 1999 Constitution, Agbakoba said.
Therefore, the constitutional
activist seeks to establish the following: One, that by
Sections 81 (2) and 84(1), (2), (3),(4), and
(7) of the 1999 Constitution, the
remuneration, salaries, allowances and
recurrent expenditures of the Judiciary, being
constitutionally-guaranteed charges (or “First
Charge”) on the Consolidated Revenue Fund of
the Federation, do not form part of the
estimates to be included in the Appropriation
Bill as proposed expenditures by the President
as is the present practice. Two, that by
virtue of the constitutional guarantee of independent
funding of the Judiciary under Section 81 (1),
(2), and (3) (c) and Section 84(2), (3), (4)
and (7) of the 1999 Constitution, the National
Judicial Council (NJC) ought not to send its
annual budget estimates to the Budget Office
of the Executive arm of government or any
other
Executive Authority as is the present practice but ought
to send the estimates directly to the National
Assembly for appropriation. Three, that the
continued dependence of the Judiciary on the
Executive for its budgeting and funds release
is directly responsible for the present state
of underfunding of the judiciary, poor and
inadequate judicial infrastructure, low morale
among judicial personnel, alleged corruption
in the judiciary, delays in administration of
justice and judicial services delivery and
general low quality and poor out-put by the
judiciary.
Four, that the present practice on Judiciary funding by the defendants, which is dependent on the Executive in budgeting and release of funds is in violation of sections 81 (2), (3) (c) and 84(2), (7) of the 1999 Constitution and therefore unconstitutional, null and void.
Five,
perpetual injunction against the defendants from all
practices on Judiciary funding which run
contrary to Sections 81 (2) (3) and 84(2) (7)
of the 1999 Constitution, to wit, submitting
Judiciary’s estimates to the Executive instead
of directly to the National Assembly and release
of the Judiciary’s fund in warrants by the Executive
instead of directly to the National Judicial
Council for disbursement.
Due
to the low funding of the judiciary, it has now rendered the judiciary
ineptitude to the boon of the Executive arm of government which now dictates
for the judiciary and this has made some of the judgments of the judiciary
bunkum from pepper sound objurgations.
To
this end, the former CJN of Nigeria, Justice Mariam Aloma Mukhtar voiced out
her frustration and lamented during the
September 23, 2013, at a special session of the Supreme Court of Nigeria to swear in newly SANs. Quoting
the former CJN thus, “Over the years, funding of the courts has remained a challenge as evidenced in the (deplorable) condition of many courts in Nigeria today”. Statistics have shown that, funding from the Federal Government has witnessed a steady decline since 2010, from N95 billion in that year to N85 billion in 2011, then N75 billion in 2012 and dropped again in the 2013 budget to N67billion. Indeed with this amount, if the amount allocated to the extra-judicial organisations within the judiciary is deducted, the courts are left with a paltry sum to operate.
The
simple implication is that our courts are increasingly
finding it difficult to effectively perform
their day to day constitutional roles. The resultant
effect of a slim budget in the Judiciary is
that a number of courts in Nigeria today evince
decay and neglect of infrastructural amenities,
particularly at the state level. In some cases,
the court buildings do not possess the required
well-equipped library for judges to conduct
their research. This may make judges rely on information
supplied by lawyers which should not be the
case,” the CJN lamented.
To paragraph four above. The
judiciary which is supposed to be an independent organ of government in order
to allow the dispersal of justice is sometimes hijacked by political bigwigs
who are Justice's enemy.
We
all know what happened in Taraba state, Rivers, Akwa Ibom and the present Abia
state. To this end, this has made some scholars and a reasonable man in the
society to cry out to the Supreme court for help for the sustenance our
judiciary and prevent this laughable buffoonery that is about to rocket the judiciary.
*CONCLUSION*
To
this end, I anchor on section 17(2)e) which reads ipsisima verba. The state.... " the independence, impartiality
and integrity of courts of law, and easy accessibility thereto shall be secured
and maintained ". The judicial office holder and the
court should be free from any form of impunity and perverse of justice in order
to enhance the smooth running of justice.
You can reach me via:
tobi.jude@yahoo.com or tobi.jude.tj@gmail.com or 07064809512.
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