By Tobi Jude
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 theremuneration, 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.