The Independence Of The Judiciary In A Democratic Dispensation (Part 1), By Prof Mike Ozekhome, SAN, CON, OFR, Ph.D
Introduction
THE judiciary is popularly referred to as the last hope of the common man. Yet, to maintain the attributes that qualify it for this populist appellation, the independence and integrity of the judiciary must be jealously guarded and sustained so as to continue to attract the confidence of the said common-man in the ability of the judiciary to do justice to all without fear or favour.
Indeed, the title of this paper becomes urgently relevant in view of the difficult times the judicial institution as a whole has been going through in recent times, as regards its integrity and retention of public confidence. Never in Nigeria’s history (not even during the repressive and tyrannical era of military juntas) has the judiciary suffered such high degree of public bashing, ridicule and contempt as it has in recent times.
Of late, the Judiciary has come under intense criticism and experienced serious erosion of public confidence, so much that its indispensable independence and impartiality have been put to serious doubt by an ever-increasing cross section of Nigerians. While some of the events that gave rise to these doubts were largely misunderstood by the public, the truth remains that some events have shown an even more urgent need to safeguard and defend the political, fiscal/economic and intellectual independence of the Judiciary in this dispensation. The imperatives for an independent and impartial Judiciary in a democracy are great and pressing. This is bolstered by the general feeling and expectation of greater freedoms in a democracy. The protection of human rights is implicit in open democracy. The Judiciary is the greatest bastion for protection of human rights.
The aim of this article is not to place the Judiciary in the dock and try it for the alleged ‘offences’ for which it has recently been perceived (rightly or wrongly) to have committed. Consequently, we would do no more than merely restate some of the events which in the opinion (however flawed) of most Nigerians seem to signify a compromise of its independence and integrity. Our own value judgment would be minimal. We therefore enter a caveat that those who expect the main focus of this paper to be on trashing the judicial institution may be a little bit disappointed at the end. The paper shall conclude with a focus on the role of an independent Judiciary in Nigeria’s nascent democracy.
Definition of Terms
There is hardly any term than can be properly and exhaustively defined (strictu sensu). We shall however adopt dictionary definitions of our principal terms as working definitions to aid clarity of analysis.
The noun ‘independence’ is derived from the adjective ‘independent’ which connotes the following attributes:
“Free from the authority, control or influence of others, self-governing… self-supporting, not dependent on other for one’s living, not committed to an organized political party…not subordinate…not depending on another for its value.” (Oxford Dictionary).
We now turn to the key and operative word, the ‘Judiciary’. The term has been defined as:
“That branch of government invested with the judicial power; the system of courts in a country; the body of judges; the bench. That branch of government which is intended to interpret, construe and apply the law.”
It has however been argued at various times that this definition (as exhaustive as it might appear) is restrictive. It has been suggested that a working definition of the term ‘Judiciary’ may:
“Include the messengers, clerks, Registrars, Bailiffs, the Police, the other security forces, the members of the Bar and such persons that have anything to do with the Judiciary and this will ultimately include the generality of the populace”
For the present purposes however, it would be something of a stretch to suggest that perhaps the generality of Nigerians are part of the Judiciary. Nwabueze agrees with the wide definition of the term, but sees the usage as a somewhat permissible ascription of terminology as regards its composite brother term, the Judicature. According to the learned author:
“There is a certain amount of looseness in the use of the word ‘Judiciary’. In its strict meaning it refers to the ‘judges of a state collectively, but it often (loosely) used interchangeable with ‘judicature’, a wider term embracing both the institution (the courts) and the persons (the judges) who compose it.”
‘Democracy’ is still best known with its Lincolnian definition as ‘government of the people, for the people and by the people’. It is however important to state that our type of ‘democratic dispensation’ has not qualified to be simply referred to as democracy (when the word is stretched to its utilitarian of limits). At best, Nigeria is passing through the process of democratization from years of military dictator ship to civilian governance. Being a process, democratization primarily embraces the steps that go into internalizing the norms of democracy after the institution of a democratically-elected government. In this connection, following democratic elections, there comes a period where governments, institutions and the populace imbibe the democratic culture and principles, and gradually drop autocratic and uncivilized tendencies. This is the cross-roads at which the contemporary Nigeria finds itself. Nwabueze, therefore, sees democratization as:
“The infusing of the spirit of liberty, democracy, justice, the Rule of Law and order amongst the people.”
The point we arrive at is that Nigeria’s Judiciary (which involves both the system of courts and the judges has a pivotal role to play in this democratic dispensation in upholding the rule of law and holding the balance between constitutional and unconstitutional acts. Democratic practice in a limited government being essentially a regime of adherence to constitutionalism, legality and the rule of law, the presence of an independent Judiciary is a sine qua non for successful democracy. An independent Judiciary acts like a compass in complex and turbulent voyage of democracy. Its performance or lack of it determines whether or not the ship of state anchors safely.
If the word ‘independence’ still connotes freedoms from the authority, control or influence of others, and if it still points to an institution which is self-supporting, (not dependent on others), not committed to a political party, not subordinate and not depending on any person or other institution for its value, then the Nigerian Judiciary must politically, economically and intellectually be seen to be self-reliant in order to be called an independent Judiciary. It has been urged (albeit ad ignoranta) that the doctrine of separation of powers does not presuppose independence of one arm of government from the other. This flawed argument is usually impressively hinged on the doctrine of checks and balances. It was used extensively against the Legislative arm in their efforts to operate independently of the executive arm during the first (6) six years of return to democracy. It is, however, submitted that the constitutional doctrine of checks and balances does not derogate from the doctrine of separation of powers.
It is not intended to confuse the doctrine of separation of powers with the issue of judicial independence. Whilst it is right to argue that the latter is a fall-out of the former, it is important to note that the issue of judicial independence has an additional constitutional, political and moral importance in our national life. This is because after the Constitution of the Federal Republic of Nigeria 1999 has successfully separated the powers of government in sections 4, 5 and 6 thereof, it goes ahead to provide unequivocally that:
“The independence, impartiality and integrity of courts of law, and easy accessibility thereto shall be secured and maintained.”
It can easily be seen that judicial independence entails, but is not limited to, separation of powers. Thus in construing the meaning of the expression ‘independence of the Judiciary’, Nwabueze argues:
“We tend to think that the independence of the Judiciary means just independence from the legislature and the executive. But it means much more than that. It means independence from political organs of government or by the public or brought in by the judges themselves through their involvement in politics.”
It is unarguably that the most prominent issue in judicial independence is the freedom of the Judiciary from any form of political influence, whether exerted from outside or self imposed. Another learned writer sees judicial independence to mean:
“The independence of the judges to think freely and act freely according to the dictates of their conscience in line with the provisions of the law without any let or hindrance or fear of repercussion from any quarters whether from the legislative, Executive, individual members of the public or even from the ghost of the individual judge’s past, present or future.”
Unless the Judiciary is aggressively shielded from political influence from the other two arms of government, especially the Executive, the chances of such influence being actually exerted over it are indeed bright. The Constitution made both the Executive and the Legislature generally amenable to the jurisdiction of the ordinary courts. Accordingly, the judicial power vested in the courts by the Constitution extends:
“To all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”
It is natural for a branch of government which wields a preponderant of coercive power and exercises power over the purse, (but still has the possible sanction of the Judiciary lurking over it), to attempt to stultify, hijack or control the machinery of the Judiciary. That is the only way, in a democracy, the government can check the ‘menace’ and interference, of the courts and thereby amass more powers and secure impunity unto itself in defiance of constitutionalism and due process. (To be continued).
Thought for the Week
“The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing”. (Caroline Kennedy).
LAST LINE
God bless my numerous global readers for always keeping faith with the Sunday Sermon on the Mount of the Nigerian Project, by humble me, Prof Mike Ozekhome, SAN, CON, OFR, FCIArb., LL.M, Ph.D, LL.D, D.Litt, D.Sc. kindly, come with me to next week’s exciting dissertation.
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