By Ekezie Kingstonjoe Onumajulu Esq.
Introduction
An independent judiciary is necessary for a democracy to thrive. It ensures the rule of law and encourages the realization of human rights and also the prosperity and stability of a society. Prof. Nnamdi Obiaraeri in his book titled ‘Human Rights in Nigeria’ highlighted judicial timidity and executive lawlessness as huge impediments to the realization of fundamental rights in Nigeria. Judicial timidity and executive lawlessness remains an obstacle towards the realization of a true democracy, rule of law and administration of justice in Nigeria. The absence of judicial autonomy has further fueled the disregard for the judicial arm of government by the executive arm. This paper will basically deal with an aspect of judicial autonomy which is financial independence.
Sections 81(3) of the 1999 Constitution (as amended) provides that any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation shall be paid directly to the National Judicial Council for disbursement to the heads of the courts established for the Federation and the State under section 6 of this Constitution. Section 121(3) of the 1999 Constitution (as amended) also provides that any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the State shall be paid directly to the heads of the courts concerned.
To give credence to this constitutional postulation, the courts in their wisdom have given a judicial recognition to these unambiguous provisions of the Constitution which gave the judiciary its due autonomy in a suit filed by the Judiciary Staff Union of Nigeria (JUSUN) against the governors of the 36 States and others in suit number FHC/ABJ/CS/667/13. One may ask why a Government who swore to uphold the provisions of the Constitution resorts to negotiations before respecting the letters of the Constitution or obeying a simple order of court.
In Labour Party V. INEC (2009) LPELR – 1732 (SC) (p. 25 paras. C), the Supreme Court per Ogbuagu JSC had this to say “it is now firmly settled that a court order must be obeyed even if such order is perverse, until such a time that the order is set aside by a competent court. Saulawa JCA as he then was, quoting the eminent and fearless American jurist Mr. Justice Frankfurter in the case of Zenith Bank V Igbokwe (2013) LPELR-2197(CA) stated that “The courts authority… possessed of neither the purse nor the sword…ultimately rests on sustained public confidence in its moral sanction.”
Presently in Nigeria, there are numerous decisions of various courts of records yet to be complied with. This is remotely linked to the fact that ‘he who pays the piper dictates the tune’. It is more worrisome that encomiums are poured on any member of the executive arm of government who conveniently obeys the judgments of the courts. The executive arm of government at the Federal and State level have always been applauded for paying salaries to judicial workers and buying official cars to judicial officers as if the purchase of those cars is an extension of the margins of their executive magnanimity. Arising from the foregoing is the reason why many key players in the justice sector applauds Rivers State as one of the States enjoying the dividends of an independent judiciary. With the greatest respect to those involved, such statements are rooted in a bewildering predilection of self deception.
Where lies the hope of the common man when he has a case with an arm of government that pays the judiciary? How can the common man have confidence in a sector that is so handicapped? Further, the security situation which is a concomitant effect of a lack of confidence in the judiciary has resulted to citizens preferring self help than wait for his adversaries to comply with order of court.
The Way Forward:
M.P. Singh an Indian lawyer once said:
The most important aspect in the independence of the judiciary is its constitutional position. Just as the constitution provides for the composition and powers of the executive and the legislature, it should also provide for the judiciary. If the constitution vests the judicial power in the judiciary, so much the better. Otherwise the constitution may provide for the composition of the courts and their jurisdiction, and for the appointment, terms of office, and tenure of the judges. The Constitution must ensure a constitutional position of dignity to the judiciary. The constitution must also ensure administrative independence of the judiciary, such as supervision and control over administrative staff, preparation of its budget, and maintenance of court buildings. It must prohibit ad hoc tribunals and the diversion of cases from ordinary courts, ensure the natural judge principle, ordain respect for and enforcement by the other branches of the government of court decisions, provide for separation of judges from the civil services, and prohibit diminution of judges’ service conditions. Some of these matters may be trusted to legislation; however, there must be enough assurance in the constitution to that effect so that the judiciary is able to command respect in the eyes of the people and is able to attract the ablest persons as judges. Again, judicial tenure and appointment must be beyond the control of the executive.
One of Nigeria’s greatest problems is not the laws but the institutions and implementation of such laws. As earlier posited, the Constitution has so far preliminarily dealt with the aforementioned position of M.P. Singh. Little wonder, JUSUN presently embarked on a national strike to ensure compliance with judicial autonomy. The underlying purpose of the independence of the judiciary is that judges must be able to adjudicate on disputes before them according to law, uninfluenced by any other factor. To achieve this, the judiciary must be financially independent to weather the storm of the other arms of government.
Moving forward, for judges to adhere to the law in adjudicating over disputes without fear or favor, the provisions of the Constitution on financial autonomy must be followed to the latter. This will be the first step towards actualizing the many reforms needed in the justice sector.
Conclusion
There are pertinent areas of the Constitution on the judiciary which are ripe for amendment. One of areas is the role of the executive and legislative arms in the appointment of members of the bench. In as much as there is clamor for a free and independent judiciary, in a democracy, there must be checks and balances in place to ensure discipline and compliance with the laws and to discourage tyranny. Although no arm of government can stop another arm from exercising its constitutional functions, where the functions so performed are seen to be manifestly in contravention of the Constitution something can be done to check it. See Inakoju V. Adeleke (2007) LPELR-1510 SC.
In conclusion, the framers of the Nigerian Constitution had a grand vision anchored on a free and just society based on the rule of law. An independent judiciary will promote the rule of law and reposition the judiciary as the last hope of the common man. This will also enhance public confidence in the judiciary. The judiciary must not just be seen to be independent but must be actually independent.
Written By Ekezie Kingstonjoe Onumajulu Esq
