August, 2022
BY CHIEF MIKE OZEKHOME, SAN, OFR, LL.M, Ph.D.
INTRODUCTION
The ‘Judiciary’’ needs no definition. Nor does “democracy”. The former however, deserves some elaboration, even if briefly. The Judiciary is constitutionally recognized in Nigeria as one of the three arms of Government – along with the Executive and the Legislature (See sections 4,5 and 6 of the 1999 Constitution). It is corollary to the doctrine of separation of powers ably propounded in 1748 by Baron de Montesquieu, a renowned French Philosopher. Just like the other two arms, a whole sub-division of the 1999 Constitution – Chapter VII – is devoted to what it refers to as ‘The Judicature’. In its 66-odd Sections (230 -296), our grundnorm outlines the structure of the court system in Nigeria, the mechanism for recruiting their personnel, their discipline, promotion and removal.
These provisions are complemented by those of section 6 of the Constitution, which sets out the powers of the courts of the Federation, from the highest (the Supreme Court), down to the lowest courts, as may be authorized by Law to exercise jurisdiction at first instance, or on appeal, by either the National or State Houses of Assembly.
These powers are, however, not absolute, as they are qualified by the exclusion of certain matters in the self-same Constitution, including the Fundamental Objectives and Directive Principles of State Policy in Chapter II thereof; including the competence of any person to make any existing Law after the 15th day of January, 1966.
Subject to these restrictions, the jurisdiction of Nigerian Courts is only circumscribed and delimited either by the law which establishes them or by the Constitution itself. In other words, the Judiciary is
CONSTITUTIONALLY INDEPENDENT
This notion itself is, however, not entirely free from ambiguity, in terms of its content and scope.
Nonetheless, it’s precise meaning is critical to any discussion of the consequences of undermining the Judiciary. This is because, to talk about eroding judicial independence is simply another way of expressing the phenomenon of undermining the Judiciary: they mean the same thing. Before delving further into the issue, however, it is important to deal with the meanings of the words “consequence” and “undermine” used in the title of this piece.
‘CONSEQUENCE ’
This means ’a result of a particular action or situation, often one that is bad or not convenient”; ‘’ The effect, result or outcome of something occurring earlier”;
‘’Something produced by a cause or necessarily following from a set of conditions”; ‘’ The consequences of something or the results or effects of it”; ‘’Something that happens as a result of a particular action or set of conditions”
‘‘UNDERMINE’
According to the following sources, ‘undermine’ means:
‘’To make someone less confident, less powerful or less likely to succeed, or to make something weaker, often gradually”
“To gradually weaken or destroy something” ;
“If you undermine something such as a feeling or a system, you make it less strong or less secure than it was before, often by a gradual process or by repeated efforts”;
“To subvert or weaken insidiously or secretly”; “To weaken or ruin by degrees”;
“To gradually make someone or something less strong or effective” ; “Lessen the effectiveness, power of ability of, especially gradually or insidiously”.
The foregoing definitions will guide this intervention – and, hopefully- make it easier to articulate and comprehend. We shall commence by examining the concept of ‘judicial independence’.
JUDICIAL INDEPENDENCE
What is ‘Judicial Independence’?
According to Professor David S. Law, judicial independence refers to “the ability of Courts and judges to perform their duties free of influence or control by other actors, whether governmental or private”. The importance of this ideal cannot be over-emphasized, because as Alexander Hamilton famously opined in his Federalist Paper No 78, the Judiciary is the weakest and “least dangerous” of the three branches of Government, because, in his opinion, it has “no influence over either the sword or the purse”. Thus, in words of Professor Law, the judiciary is “least capable of defending itself against the other branches (who) possess (not only) the power to disobey or thwart the enforcement of judicial decisions, (but) also to retaliate against the courts for decisions that they oppose”
CONCEPTUAL ISSUES
As can be seen from the above preamble, judicial independence and the topic of this piece are two sides of the same coin. They are NOT antithetical to each other. They are mutually exclusive or incompatible. Where a Judiciary is deemed to be ‘independent’, it means that it is free of factors which tend to undermine it’s integrity and capacity to play its assigned role and perform it’s functions under the Constitution – which is simply to dispense justice to all manner of people without fear or favor, affection or ill will; regardless of whose ox is gored.
This outline of judicial independence neatly sums up what Professor Law conceives as the questions which are central to a comprehensive and cohesive definition of the subject, namely:
i. Independence for whom?
ii. Independence from whom?
iii. Independence from what; and
iv. Independence for what purpose?
In this paper, we shall attempt an exposition of the Nigerian experience of judicial independence, at the end of which we shall examine the implications of exposing the judiciary to undue influence, particularly by the other two stronger arms of Government, while recognizing the impracticability or unfeasibility of achieving, in the words of Professor Law, a perfectly independent judiciary that is completely insulated from all forms of political and popular influence. A good starting point therefore is a related issue – that of ‘judicial immunity’.
JUDICIAL IMMUNITY
A manifestation of the notion of judicial independence is ‘judicial immunity’. This attribute is essential and indispensable in order to enable Judges do their work fearlessly without let or hindrance. It simply means that they cannot be personally sued or held liable for carrying out their judicial duties in respect of any decisions, verdicts, orders or pronouncements made by them while performing their judicial functions. See ONAGORUWA vs. I.G.P where the Court of Appeal opined that:
“The immunity of judges for any acts done or words spoken in their judicial capacity in a Court of Law is not conferred for the protection or benefit of the judges but for the benefit of the public, which interest it is that the judges Should be at liberty to exercise their functions with independence and without fear of consequences “.
In another incisive dictum of the Court of Appeal in EMECHETA vs. OGUERI, the intermediate court expressed the view that:
“The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of party aggrieved is to appeal or to take some such step to reverse his ruling, of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice. He can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages. The reason for this immunity is founded on public policy. The reason is not because the judge has any privilege to make mistake or to do wrong. It is so that he should be able to do his duty with complete independence and from fear. In this Country, the need to protect judges from wanton attack cannot be overstated”.
In Nigeria, experience has shown that judicial immunity has always been more at risk under civil democratic, rule than it’s opposite – military dictatorship. This is ironical, because the received wisdom and expectation is that the reverse ought to be the case; thus justifying the dictum of Hon. Justice Katsina-Alu, JCA (as he then was) in EMECHETA vs. OGUERI, supra, of “the need to protect judges from wanton attack“. While this phenomenon is always regrettable in a democracy, it is not altogether surprising. This is because in their infamous desperation which has become the hallmark of Nigerian politicians and their supporters, they typically brook no opposition and will not allow anything (including the law) to get in their way. Propriety, morality, ethics, decorum, basic decency, legal or constitutional norms, are not objects in their warped minds and blind quest for power – by all means – fair or foul.
Theirs is the Machiavelian principle of the end justifying the means. These attacks have assumed direct – and, sometimes – terrifying and horrific dimensions, often traumatizing Judges and their families. A few instances will illustrate the point.
SOME INSTANCES OF ATTACKS ON THE JUDICIARY
- When the office of Chief Justice Muhammadu Uwais was burgled in 2005, few could have imagined what lay in store for his brother Justices of the apex court and the Court of Appeal a few months later, in October 2016. On that occasion, the homes of no less than seven Justices of both courts, including the Federal High Court, were savagely raided by armed agents of the State (the SSS and the EFCC), on the ostensible ground of looking for evidence of official corruption and economic crimes.
- In 2019, less than 3 years later, this brazen and unprecedented assault was re-enacted when the then Chief Justice of the Federation, Hon. Justice Onnoghen (rtd), was first suspended by President Buhari on the strength of a phoney ex-parte order made by the Code of Conduct Tribunal, after which he was charged before the same Tribunal for what was widely perceived to be spurious, pre-meditated and trumped-up charges. He was subsequently forced into premature retirement from his exalted position as CJN.
- The Hon. Justice Nganjiwa of the Federal High Court was similarly indicted and charged to court by the EFCC for corruption and was only reprieved by the Court of Appeal on the ground that, as a serving judicial officer, he enjoyed immunity from all infractions, except crimes allegedly committed by him outside the scope of his official duties and functions. The court held that he (and other judicial officers) could only be prosecuted for official corruption by law enforcement agencies if they had first been stripped of “the toga of judicial immunity” by the body constitutionally charged with exercising disciplinary control over them – the National Judicial Council. See Hon. JUSTICE H. A. NGANJIWA vs. FEDERAL REPUBLIC OF NIGERIA
- Another infamous and even more egregious attack on the Judiciary was reportedly perpetrated by thugs led by a former Governor-elect of Ekiti State in September 2014. The presiding Judge, Hon. Justice Adeyeye Ogunyemi, was reportedly physically assaulted and brutalised in the attack. This followed a similar attack a week earlier, on another Judge in the State, Hon. Justice Olusegun Ogunyemi, by persons reportedly led by thugs loyal to the same Governor-elect. That judicial officer was reportedly so traumatised that he was forced to flee the State for dear life.
- Armageddon appeared to have been finally unleashed when on Friday, 29th October, 2021, the official residence of the now honourably retired Supreme Court Justice, Justice Mary Ukaego Odili, JSC (rtd)’ was brutally attacked by some armed faceless men believed to be security agents in a gestapo-like manner.It It was believed their mission was to either kill or maim the amiable Judge, under the thin guise of executing a search warrant at an obviously wrong address, even when the situs of the supposed search was clearly stared on the Magistrate Court-endorsed search warrant. There was nothing similar between No 9, Imo Crescent which was endorsed on the search warrant and No 7, Imo River Street, Maitama (Justice Odili’s residence). It was clear it was a mission foiled by many Nigerians (including my humble self) who rushed to the scene and challenged the hoodmums.
NON-VIOLENT INTERFERENCE WITH THE JUDICIARY
Instances of less direct targeting of the judiciary outstrip the few direct attacks narrated above. While less physically and psychologically traumatising, they are, nonetheless, not the least acceptable by any stretch of the imagination. Indeed, in many ways, they are often worse, because being invidious, they are usually hidden from public view, unlike the others which were conducted in the full glare of cameras. They include the following:
- The removal, in 2004, of the Oyo State Chief Judge, Hon Justice Isaiah Olakanmi, by the State’s Executive in spite of a letter from the National Judicial Council (NJC), advising the Government against it, and insisting that, under the Constitution, the NJC – and not the State Government – possessed such powers to remove him.
- The attempt by the Governor of Kwara State (Dr. Bukola Saraki) and the State House of Assembly to remove the State Chief Judge, Hon. Justice Raliat Elelu-Habeeb. This was condemned by the Supreme Court which affirmed the decisions of the trial Federal High Court and the Court of Appeal that her removal was unconstitutional. The court re-asserted that, under the Constitution, State Governors and State Houses of Assembly cannot exercise disciplinary control touching the removal of State Chief Judges or other State Judicial officers, except the NJC.
DISOBEDIENCE TO COURT ORDERS
Instances of disobedience to court orders by the Executive are legion. Some have already been narrated above under Attacks on Judges and non-violent interference. Other instances included the following:
- The refusal of the Federal Government, in 2004, to comply with the order of the Supreme Court to release statutory financial allocations due to Local Government Councils in Lagos State, which President Olusegun Obasanjo had withheld on the ground that the State Government unconstitutionally created additional local councils and was going to fund these new councils from funds intended solely for the pre-existing councils;
- The then ruling Peoples Democratic Party (PDP) also disobeyed a court order to reinstate the Governor of Anambra State, Chris Ngige, whom the court had ruled in May,2005,was illegally expelled;
- Other institutions (such as the Independent National Electoral Commission) have also serially disobeyed court orders. INEC has historically flouted judicial orders to withdraw certificates of return by which it endorsed the election of particular candidates;
- In August 2005, the then Chief of Naval Staff (who was appointed by the President and served at his pleasure), was adjudged to be in contempt of court for failing to obey orders to release an impounded shipping vessel.
There are other instances of executive defiance of court orders too numerous to recall.
INTERFERENCE BY THE EXECUTIVE THROUGH NON FUNDING OF THE JUDICIARY
The aphorism: “He who pays the piper dictates the tune” is seldom more apposite than in the relationship between the Executive and the Judiciary in Nigeria – with the latter being the Piper, of course. This historically skewed relationship has resulted in High Court Chief Judges as well as the Chief Justices of Nigeria and Presidents of the Court of Appeal and those of the National Industrial Court having to go cap-in-hand,literally crawling before State Governors and the President for funding for everything. This ranges from recurrent expenditures (salaries, allowances, and running costs) to capital projects. This situation is hardly ideal as its implications are all-too-obvious to everyone. This ugly situation persists despite numerous court orders (and even a Presidential Executive Order) which conferred financial autonomy on at least the Federal Judiciary.
THE CONSEQUENCES OF UNDERMINING THE JUDICIARY IN NIGERIA
The obvious fall-out of the above litany of serial interference – particularly by the Executive – in the affairs of the Judiciary is that the latter has been made to fail in its constitutional mandate and role of being the last hope of both the common and the not-so-common man and woman. It also stifles its role of acting as a check on government’s arbitrariness and the peculiarly Nigerian culture of impunity. That is not all.
The implications of subverting the judiciary, especially in a democracy, are innumerable. Before delving into them, however, it is necessary to express a caveat, as follows. It is important to draw a distinction between the situation under a democracy and an autocracy because, under the latter (especially military rule) everyone, all but resigns themselves to the reality that the ‘khaki boys’ call the shots – both literally and figuratively. Simply put, you oppose them at your own peril. This affected the liberty and fundamental rights of many human rights activists in Nigeria, such as the late Chief Gani Fawehimnmi, Chief Mike Ozekhome, SAN, Olisa Agbakoba, SAN and Femi Falana, SAN, Beko Ransome-Kuti, Femi Aborishade, Tunji Abayomi, Abdu Oroh, amongst others. Their travails have, however, not deterred legal scholars from proffering opinions on the malaise. Some, like Ekweremadu postulate that “many of Nigeria’s democratic failings in the past have been the result of the inability to have an impartial and honest Judiciary that commands the respect and confidence of most of members of its deeply divided population”. He posits that “a good judiciary will not only check the abuse of power by government, it will also be capable of managing the inter-elite disputes and or conflicts which are bound to result from the competition for power and economic resources involved in a multi-ethnic society”.
Those views echo those of Leonard who opined that competent and independent judiciaries are, in many ways, central to democracy. In turn, their opinions mirror those of others, such as Mbanefo (1975) and Walraven & Thiriot (2002), who separately posited that a basic requirement for the survival and prosperity of a liberal democratic State is the presence of strong and independent oversight institutions, one of which is the judiciary.
In the same vein, Diadem asserts that whenever the Executive attempts to substitute the constitutionally-prescribed internal and semi-autonomous mechanisms of judicial control and discipline with its own instruments of coercion:
“The tendency is that fear is instilled (in) the Judiciary to do the biddings (sic) of the executive, whose officials are severally fingered in many corruption cases. When considered against the backdrop that the judiciary lacks financial autonomy and the appointer of judicial officers is the executive, judicial independence hangs on slippery ice. The pertinent questions arising from (the) external trial of judges are whether Judges wouldn’t dither when high-profile officials (of the executive) are charged or commit offences or when they are dealing with cases in which executive arm of government is interested . . . these grave acts (clearly) portend some peril for judicial activism”.
Finally, as the NBA observed in its reaction to the raid on Justice Odili’s home, “events like that so nothing but erode the independence of sacred democratic institutions like the Judiciary, undermining the rule of law in Nigeria and set the country back in the quest to instil confidence in the citizens of Nigeria, Nigeria businesses and foreign investors that Nigeria operates a democracy with an independent Judiciary”.
CONCLUSION
The importance of the Judiciary in any civilized society cannot be overemphasized. This is all the more so in an emerging, post-colonial, plural, multi-ethnic and multi-religious, but mono-product economy such as Nigeria. This is because the Judiciary is the only guarantee of a fair outcome in any dispute, both local and multi-national, regardless of its content: economic, commercial, political, social, religious and otherwise. In the oft-cited cliché, perception is reality. If disputants (and – in the case of non-Nigerians – potential investors) perceive our judiciary as weak and subject to manipulation by external forces (whatever the motivation of such forces), confidence is eroded.
In the memorable words of Lord Denning: “Justice must be rooted in confidence”. Paraphrasing the rest of his famous dictum “Confidence is destroyed if reasonable people are turned away or turned off completely by the thought that judges as a class (not just specific or individual judges) are unreliable and unpredictable because they are systemically weakened or compromised and are at the mercy of another arm of Government which is, invariably, the Executive.
The consequences of such perception are far-reaching, as they impinge on the doctrine of separation of powers under the Constitution. By virtue of this doctrine, no arm of the Government is permitted to control or dictate to another. While this notion is not expected to be water-tight (it cannot be), the appearance of that separation, is however, more important than any utopian belief in its reality. Once again, perception is key here.
However, perceptions, in turn, are shaped by reality. Reality, in terms of the socio-political and economic circumstances of any given situation. In this regard, public expectations in a dictatorship differ markedly from those in a democracy such as Nigeria operates. Under the former, the public expects and tolerates erosion of their liberties. By contrast, such intrusions are an aberration in a democracy. It is even more so to expect people to condone them.
This is where the judiciary is supposed to – indeed, expected to – make a difference. In the immortal words of Lord Atkin in LIVERSIDGE vs ANDERSON
“In (this country), amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecter of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law”.
This great endeavor of saving the judiciary from the excesses of the Executive (some might say, unkindly, in some instances, from itself), is the task of all men and women of good will – not just human rights activists or legal practitioners only. This applies, in particular, to members of the 4th Estate of the Realm, i.e., the Media. Section 22 of the 1999 Constitution clearly enjoins the media to hold the government accountable and responsible to the people. It is not for nothing that the pen is said to be mightier than the sword – it is not a cliché. Media practitioners must therefore, be in the vanguard of a coalition that is alert and vigilant to thwart any attempt to erode the independence and effectiveness of the Judiciary. In this task, we must be motivated by only one mantra: the judiciary is our bulwark against arbitrariness, impunity and injustice. We can only allow it to fail at our collective peril.
