This article examines the administration of justice in Nigeria’s nascent ‘democracy’, including the independence and impartiality of the judiciary, corruption in the judiciary, the delay in judicial process and the role of the judiciary in the present political dispensation.

The chief aim of democracy is to prevent arbitrary government and to ensure that power flows from the consent of the governed. However, democracy has its own capacity for tyranny. Some of the most menacing encroachments upon liberty invoke the democratic principles and assert the right of the majority to rule. Democracy must, therefore, be under the law in order to ensure that governmental power is exercised in accordance with predetermined rules as opposed to the exercise of arbitrary power. John Locke stressed that law, not force, as the basis of government. A government without laws will be tyrannical. To Locke, wherever law ends, tyranny begins. Accordingly, he said that democracy is governed by laws, which are arrived at after long deliberation by properly chosen representatives of the people.

In a democracy under the rule of law, the nation’s government and its agencies will spring from and operate under the law. The activities and operations of the government and its agencies should be based on, and controlled by law. Law thus becomes the rule of the game. The judiciary becomes the referee or the umpire to ensure that the game is played according to the rules and it will stop or penalise any type of play which is outside the rules.

The judiciary thus is constituted the ultimate interpreter of the constitution and to it is assigned the delicate task of determining what is the extent and scope of the power conferred on each branch of government, what are the limits on the exercise of such power under the constitution and whether any action of any branch transgresses these such limits. It is also a basic principle of the rule of law, which permeates every provision of the constitution and which forms its very core and essence, that the exercise of power by the executive or any other authority must not only be conditioned by the constitution, but also be in accordance with law and it is the judiciary which has to ensure that the law is observed and that there is compliance with the requirements of law on the part of the government. This function is discharged by the judiciary by exercise of the power of judicial review, which is a most potent weapon in the hands of the judiciary for maintenance of the rule of law. According to the International Commission of Jurists, “the rule of law is a dynamic concept which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which the legitimate aspirations and dignity of the individual citizens of the country may be realised.”

A society consists of individuals who as of necessity have to interact for the purpose of achieving individual aspirations within the society as well as the society’s commonly shared values and aspirations. The consequence of such interaction also means and implies the emergence and existence of rights and benefits; as well as duties and obligations.

Judicial power means the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the right relates to life, liberty or property. Section 6 of the 1999 Constitution of Nigeria vests the judicial power of the Federation in the courts.

Independence of the Nigerian judiciary

Independence of the judiciary means more than absence of interference from the other organs of government. It means:

that deciding officers shall be independent in the full sense, from external direction by any political and administrative superiors in the dispensation of individual cases and inwardly free from the influences of personal gain and partisan or popular bias; thirdly, that day-to-day decisions shall be reasoned, rationally justified in terms that take full account both of the demands of the general principles and the demands of the particular situation.

The following factors have been in universally acknowledged as affecting the independence of the judiciary: mode of appointment judges; their security of tenure; remuneration and working conditions of judicial officers; retirement benefits and pension rights of judges; control of funds and staff by the judiciary.

Mode of appointment of judges

The mode of appointment of judges has serious implications for the independence of the judiciary. The country’s judiciary graduated from colonial status when it was the department of the administration to post-colonial period when it became a separate and third branch of government. Appointments to high judicial office during the colonial period were the responsibility of the Colonial Legal Service, which in practice, however, accorded some respect to the concept of judicial independence. On independence in 1960 the Constitution provided for the establishment of a Judicial Service Commission for the Federation. Similarly, Regional Constitutions provided for a Judicial Service Commission for each region. All the magisterial and judicial appointments were made on the advice of the Judicial Service Commission. On the inception of the Republican Constitutional on 1^st October, 1963, the Judicial Service Commissions were abolished and appointments of judges were made by the President of the Federation or Governor of a Region on the advice of the Prime Minister or Premier, as the case may be. Magistrates were appointed by the Public Service Commission. Political, ethnic and other parochial considerations then predominated in the choice of judicial officers. This constituted an assault on the independence of the judiciary.

The 1979 Constitution restored the Judicial Service Commission for the Federation and the states and with the power to appoint vested in the President or Governor as the case may be, on the advice of the Commission. However, under that Constitution, the Chief Justice of the Federation is appointable by the president and without recourse to the Federal Judicial Services Commission. This mode of appointment has grave repercussions for the independence of the judiciary because the President could appoint an unsuitable person or a person he could easily influence. Furthermore, the composition of the judicial service commissions and the identity of their members are such that they could easily be manipulated by the chief executive. The Attorneys-General, who are political appointees, wield very strong influence in the Commission.

Decree No. 1 of 1984, which came into force on 31^st December, 1983, abolished the Federal and State Judicial Service Commissions and created an Advisory Judicial Committee for the whole country. The Advisory Judicial Committee made recommendations to the Federal Military Government on the appointment of judicial officers.

Under the 1999 Constitution, a central agency, the National Judicial Council was created and charged with responsibility of recommending candidates for appointment to the higher bench at both Federal and State levels, subject to confirmation of the Senate in the case of Chief Justice of Nigeria, Justices of the Supreme Court, President of the Court of Appeal and Chief Judge of the Federal High Court. In the case of State Judicial Officers, the Governor makes the appointment on the recommendation of the National Judicial Council subject to the confirmation of the House of Assembly in the case of the Chief Judge of a State, and the Grandi Kadi of the Sharia Court of Appeal and the President of the Customary Court of Appeal. The intervention of the National Judicial Council in the appointment of State Judicial officers may, strictly speaking, be considered a violation of the principle of federalism. However, our peculiar circumstances make such intervention worthwhile in order to get the judges somewhat detached from the overbearing influence of state governors. In any case, the State Judicial Service Commission created by section 197(1) of the Constitution is empowered to advise the National Judicial Council on suitable persons for nomination to the office of Chief Judge and judges of the High Court of the State. The composition of the State Judicial Service Commission makes the Commission a tool in the hand of a State Governor.

Politics of appointment of judges

Hon. Justice A. I. Umezurike has identified another factor connected with the appointment of judges which impairs the independence of such judges. The appointment of judges at both State and Federal levels has, in some cases, been turned into a geo-political affair which brings all sorts of traditional rulers, chairmen of town unions, leaders of thought or other social formations into the fray. In the result, many of these judges owe their appointment to these meta-legal, geo-political cleavages rather than to merit or quality. Their fidelity, to a large extent, is owed to these meta-legal groups rather than to national interest, rule of law and due process. As aptly remarked by Sir Roberts-Wray, “The method of appointment of judges should, so far as possible, insulate the choice of candidates from political motives.”

Security of tenure

The UN Basic Principles on the Independence of the Judiciary provides that judges, whether appointed or elected, should have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists. The International Commission of Jurists in the Declaration of Delhi, 1959, stated: “The principle of irremovability of the judiciary, and their security until death or until a retiring age fixed by statute is reached, is an important safeguard of the rule of law. Although it is not impossible for a judge appointed for a fixed term to assert his independence, particularly if he is seeking re-appointment, he is subject to greater difficulties and pressure than a judge who enjoys security of tenure for his working life.” The common law tradition of respect for the tenure of judicial officers is part of our colonial heritage. Thus, on independence in 1960, the security of tenure of judges, comparable to that of judges in England, was made a constitutional provision. A judge was removable only for inability to discharge the functions of his office or for misbehaviour. Even on these grounds, the question of his removal must be referred to an independent tribunal and the Privy Council. In 1963 the Republican Constitution reversed the position and provided that a judge may be removed from office by the President of the Federation or the Governor of a Region on an address presented to him by the legislature, supported by not less than two thirds of all members of the house praying that the judge be removed on the grounds of inability to discharge the functions of his office or for misbehaviour. Both the 1979 and 1999 Constitutions divided judicial officers into two groups for purposes of removal from office. The Chief Justice of the Federation and the Chief Judges of State, Grand Kadi of a Sharia Court of Appeal, or President of the Customary Court of Appeal of a State are removable at the instance of the legislature, while all other judicial officers are removable at the instance of the National Judicial Council. The provision for some judicial officers to be removable at the instance of the legislature is susceptible to abuse. In the words of the International Commission of Jurists:

“The reconciliation of the principles of irremovability of the judiciary with the possibility of removal in exceptional circumstances necessitates that the grounds for removal should be before a body of judicial character assuring at least the same safeguards to the judge as would be accorded to an accused person in criminal trial.”

The UN Basic Principles also require that all disciplinary, suspension or removal proceedings, shall be determined in accordance with established standards of judicial conduct. The position of the ICJ was justified by the case of Kalu Anya v A. G. Borno. In 1982 the Borno State House of Assembly commenced proceedings for the impeachment of the Chief Judge of the State. The Chief Judge fell out of grace with the legislature and the executive in the State because his judgments were, in many cases, against the State government. The situation was saved by the Court of Appeal, which held that unless a misconduct is established before a court or other tribunal the Assembly cannot validly pass a resolution praying for the removal of the Chief Judge.

The situation has become worse now when the legislative houses only exist in name, but in reality are mere appendages of the executive.

If judges are to be hired and fired at the will of the executive or the legislature, they will form a very ineffective and porous shield in the defence of right and justice. This is not to say that all cases of dismissal were done maliciously. The point being made is, no matter the gravity of the alleged misconduct, due process must be followed. The irony of the situation is that bad judges who serve the interest of the executive are never removed. They continue to be protected by the interest they serve.

Remuneration and working conditions of judicial officers

By tradition a judge is not expected to be engaged in business ventures or hold directorship of companies. His social life is cloistered and restricted to very discreet associations. Thus, his social privations ought to be compensated for by generous conditions of service. Generous conditions of service will also attract the right calibre of men to the bench and reduce the tendency of corrupt practices. A person who is not financially secure is more susceptible to corruption.

The salaries of judicial officers in Nigeria had never been impressive. The situation got worse with the advent of the Structural Adjustment Programme (SAP) in 1985. Nigerian judges started living in abject poverty while working under intolerable conditions. A comparative study of the best paid judges in Nigeria, vis-a-vis what their counterparts earn in the United Kingdom, is enough to show the abject poverty to which judicial officers in Nigeria have been, wittingly or unwittingly, sentenced to. As at 1988 the Chief Justice of Nigeria was earning nearer 39,000 naira per annum. Following the recommendations of the Kayode Eso Panel on the Judiciary, the salary was, in 1996, increased to 150,000 naira per annum. His counterpart in England, the Lord Chancellor was, in 1988, earning £83,000 which translates to 9,960,000 naira at the prevailing exchange rate. In effect the judicial officer in Nigeria earns about 1.5% of what his counterpart earns in England. The desire to make ends meet may tempt men of lesser calibre to succumb to gratification for the performance of their judicial functions. The emoluments of judicial officers have, however, been recently enhanced, though there is still room for improvement

Retirement benefits and pension rights of judges

Retirement benefits and pension rights of judges are their social insurance against want and poverty on leaving office, especially as they are not permitted to practice on retirement. In Nigeria, retirement benefits and pension rights are expressed as a percentage of the personal emoluments. Consequently, where the personal monuments are inadequate, the retirement benefits cannot be any better. The recent enhancement of the remuneration of judicial officers is tantamount to an improvement in their retirement benefits.

Control of funds and staff by the judiciary

The logical implication of separation of powers under the 1979 Constitution in Nigeria is that the judiciary should control its fund and personnel. In the wake of the Constitution, the judiciary started demanding to be in control of its staff and fund. This demand was misconstrued. It was argued in some quarters that what was being sought by the judiciary would lead to the creation of a republic within a republic. One is at pains to observe that the argument over the demand of the judiciary was not extended the legislature which was made self-accounting.

The 1999 Constitution made some far-reaching provisions bordering on judicial control of its funds. Section 84(7) of the Constitution provides that the recurrent expenditure of judicial officers in the Federation (in addition to salaries and allowances of judicial officers) shall be drawn from the Consolidated Revenue Fund of the Federation. Unfortunately, this provision is limited to judges of superior courts of record and does not extend to the officers of inferior courts. By section 81(3) 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 courts of the Federation and the State. Furthermore, Section 162(9) provides that any amount standing to the credit of the judiciary in the Federation Account shall be paid directly to the National Judicial Council for disbursement to the heads of courts established by the Federation and the States under Section 6 of the Constitution. These provisions are made to safeguard the independence of the judiciary. It must, however, be borne in mind that budgetary provisions for the judiciary will still be made by the executive subject to legislative approval.

There are other factors which, in a Nigerian context, hamper the ability of the judiciary to perform creditably. Some judges belong to secret societies. And it appears that the Nigerian judiciary is not left out in the pervasive phenomenon of corruption prevalent in Nigerian society. Some court orders are disobeyed by the executive

Membership of secret societies

Another despicable factor that impairs the objectivity and impartiality of judicial officers in Nigeria is the membership of secret societies by some judges. The 1999 constitution of Nigeria, in section 318, defines a secret society. As a result of the bond of fidelity among the members of secret societies, no matter the weaknesses or hopelessness of a case involving a co-cultist, and, or no matter the nature of the crime involving a co-cultist, the bond of fidelity usually impelled the member judge to see him through.

Corruption

The level of official corruption and moral degeneracy in our land is alarming and agonising. The ills are not only deep, but also pervasive, covering all social institutions and private lives. The value system of Nigeria has been completely distorted. The age-long dicta such as “a good name is better than silver and gold” and “knowledge is power”, had given way to new thinking that “money is power and that money alone matters.” However money is made in Nigeria, provided one is not caught in the act, there is nothing bad about it. Power is personalised in Nigeria. The State and its parastatals have become highly desired and prized, the control of which automatically leads to instant wealth. Any person who held government position and came out poor is generally regarded as foolish. Corruption has become a way of life in Nigeria.

The Supreme Court of Nigeria underscored the ugly state of affairs in the recent case of A.G. Ondo State v. A.G Federation where Mohammed JSE said:

It is quite plain that the issue of corruption in Nigerian society has gone beyond our borders. It is no more a local affair. It is a national malaise, which must be tackled by the Government of the Federal Republic. The disastrous consequences of the evil practice of corruption has taken this nation into the list of the most corrupt nations on earth.

Since Nigeria’s judiciary is composed of Nigerians, the story cannot be expected to be, and is not, different.

A learned commentator Professor Yemi Osibanjo, has pertinently observed: on the part of judges, corruption has, unfortunately, not been an irregular vice. In fact, a survey carried out in October 2000 on “Perceptions of Lawyers” in Lagos on corruption in the administration of justice reveals that: 99 percent of lawyers agreed that there was corruption in the Lagos State Judiciary. 80 percent of lawyers (between 11 and 15 at the Bar) agree that the prevalence of corruption was either high or very high.

The Election Tribunal of Akwa Ibom State was accused of corrupt practices by a petitioner, Dr. Ima Umanah, who contested the Governorship election and the ANPP. He alleged that the Tribunal members were bribed by the 1^st Respondent (Governor Attah) through the Chief Judge of Akwa Ibom State. It was alleged that the Chairman of the Tribunal, Hon. Justice M.M. Adamu, while still carrying out her assignment is election tribunal chairman at Akwa Ibom State, remitted the sum of N4 million to her daughter’s account with the Standard Trust Bank, Uyo and made a further remittance of N2.4 million on 22^nd June, 2003 to her son through the Standard Trust Bank, Calabar Branch. The other members of the tribunal and members of their families were also alleged to have engaged in ostentatious lifestyle during the period of their assignment.

Generals Ishaya Bamaiyi and Hamza El-Mustapha, who are standing trial for various cases of murder or attempted murder alleged to have been committed during the Abacha era, had accused the trial judge, Justice Ade Alabi, of demanding $10 million from them to pervert the course of justice. The case was, however, investigated by the National Judicial Commission (NJC) and the judge was cleared.

The Kayode Eso Panel of enquiry, which was constituted in 1994 to look into the activities of members of the Nigerian judiciary, indicted about 47 judges for corruption, incompetence, dereliction of duty, unproductivity, polarisation and indiscriminate use of ex parte orders. Ironically, most of the indicted members of the bench are still on the bench. In January 2001, a judge of the High Court, Lagos, Justice Adebanyo Manuwa, was allegedly dismissed for professional misconduct, abuse of office and corruption. Recently, the Senate approved the removal of the Chief Judge of the Federal Capital Territory Court, Justice Dahiru Saleh, for abuse of office and corruption. Saleh was one of the judges indicted in the Kayode Eso report.

Where the judiciary is corrupt, justice goes to the highest bidder. Dealing with corruption in the judiciary, Oputa, JSC said:

“Money, they say, is the root of all evil. The bench is definitely not the place to make money. A corrupt judge is, thus, a great vermin, the greatest curse ever to afflict any nation. The passing away of a great advocate does not pose such public danger as the appearance of a corrupt and/or weak judge on the bench for, in the latter instance, the public interest is bound to suffer, and justice……. is thus depreciated and mocked and debased. It is far better to have an intellectually average, but honest judge, than a legal genius who is a rogue. Nothing is as hateful as venal justice, justice that is auctioned, justice that goes to the highest bidder.”

Corruption in the justice administration system is not limited to judges and magistrates. Lawyers and police officers have a share of the blame. There is the practice of presenting fake defendants to court only for the order obtained to be executed against a different person. This is more common in recovery of possession matters. Another form of corrupt practice is the faking of service of court process and the forging of endorsement of service on court records. The aim here is to ensure non-appearance of the defendant to defend the suit, in order to enable the plaintiff to obtain a default judgement against the defendant. Some lawyers also bribe court officials to get their cases assigned to particular judges.

Speaking about corruption in the administration of justice in Nigeria, the Attorney General of the Federation, Akinlolu Olujinmi, said:

It will be invidious when talking about corruption in the judiciary to point accusing fingers only at judges without also inviting attention to corrupt lawyers. There is no doubt that some lawyers foster corruption by acting as the link between the corrupt judge and the litigant. Lawyers who engage in such practice are those who are not yet ready to exercise their intellect in conducting their client’s cases, but prefer to rely only on their illicit contact with corrupt judges to win their cases. This should be a matter of serious concern to the profession.

Corruption is also evident in the criminal justice process. Police bail has been turned into a money-spinning venture by the police.

Disobedience of court orders

A fundamental aspect of the doctrine of the rule of law is that the orders of the courts should be obeyed. During military regimes, court orders were disobeyed with impunity. The position has not yet changed.

Disrespect for court orders has continued even in the Nigerian nascent democracy. Justice Okechukwu Okeke of the Federal High Court, Abuja, had once reminded the National Drug Law Enforcement Agency (NDLEA) Chairman, Bello Lafiaji, and the Director of Prosecution, Femi Oloruntoba, of the dangers of flouting court orders. The court had scheduled contempt hearing against the two men for what it called persistent flouting and abuse of its order to produce a popular Lagos auto dealer, Lane Shittu and others, before him. The court had, on 20^th November, 1999, ordered the Inspector General of the Police to arrest the two contenders and to produce them in court, but the Inspector General of Police did not carry out the order. In another case, an Ibadan High Court nullified the appointment of secretaries and members of the Local Government Education Authorities made by the Governor. The Governor disobeyed the order on the pretext that he had appealed against the decision even when there is no order of stay of execution.

The Oyo State government in 2002 disobeyed the order of the High Court asking the local government caretaker committees to vacate their offices. An Ibadan High Court had ruled that the appointment of the local government caretaker committees in place of elected local government officials is unconstitutional and ordered members of the caretaker committees to vacate their offices. The order of the Abuja High Court that General Bamaiyi be produced in court in 1999 was disobeyed by the Federal Government. The Federal Government also announced that it will not obey the order of an Abuja High Court presided over by Justice Wilson Egbo-Egbo which restrained Dr. Chris Ngige from parading himself as the Governor of Anambra State.

Disobedience of court order is a clear invitation to anarchy. The foundation of a constitutional democracy is that there should be an agency to resolve disputes between members of society or between an individual or a group of individuals and the government or between different tiers of government. When redress of grievances can no longer come through the courts because court orders are no longer obeyed, self-help will become inescapable. In such a situation, the rule of law will give way to the rule of might. The society will then be organised on the basis of might is right, as opposed to right is right.

However, the recklessness with which frivolous orders are issued by our courts today raises the question whether court orders should be obeyed at all times and in all circumstances. Court orders should be obeyed, but the integrity of the judiciary should be restored. Without such integrity it will be difficult to canvass that court orders should be obeyed all times.

Conclusion

In a democracy under the rule of law, the judiciary ought to be a force for stability by ensuring that all and sundry operate within the law. Such a judiciary must be independent in all its ramifications as well as impartial. The 1999 Constitution made some far-reaching provisions for the independence of the judiciary, though there is room for improvement on these provisions. In practice, however, the Nigerian judiciary has been far from being independent and impartial. The executive branch has overwhelming influence on the judiciary. Other factors that affect the independence of the judiciary include the politicisation of the issue of appointment of judges and the membership of secret cults by some judges. The Nigerian judiciary is not free from pervasive phenomenon of corruption in Nigerian society. The executive also disobeys some court orders.

Even where the judiciary is independent and impartial, the attitude of the judiciary to the interpretation of the constitution affects the rights of the people. In normal legal systems, the competing theories are the theories of judicial activism and judicial restraint. In the Nigerian situation, another dimension has been added. The country is now confronted with a phenomenon of the judicial rascality. Since the advent of Nigeria’s nascent democracy the judiciary has been oscillating from activism to passivism and to rascality. The judiciary contributed to the demise of Nigeria’s 2^nd republic and the abortion of Nigeria’s 3^rd republic. So far it has largely remained a force for instability in the nascent democracy.

This is an abridged version of a paper by Osita Nnamani Ogbu who is currently Senior Lecturer and Acting Head of the Law Department at Anambra State University, Nigeria.