59 years after independence, judiciary still in the eye of the storm

In this piece, Ise-Oluwa Ige examines the role of the judiciary the world over and its relationship with other branches of government in normal democracies, locates the Nigerian judiciary within the context of its performance and relationship with other arms of government under President Muhammadu Buhari administration  between 2015 and 2019 and concludes that although the judicature today is an improvement on what it was pre-1999, yet it is still in the eye of the storm.

Background

After three failed shots at the Presidency, General Muhammadu Buhari in an historic win emerged Nigeria’s civilian president in 2015. He had polled 15, 424, 921 to beat the incumbent President Goodluck Jonathan of the Peoples Democratic Party who garnered 12, 853, 162 votes.

By the results announced by the Independent National Electoral Commission (INEC) and upheld by the nation’s apex bench, Goodluck Jonathan became the first sitting president in Nigerian history to lose such election.

Pundits said Jonathan, in many ways, was the architect of his own downfall. Specifically, he was said to have made critical mistakes that turned the public and allies against him, and led them to gravitate towards the opposition.

Buhari who exercised his constitutional rights to re-contest the presidential election in 2019 has remained solid at Aso Villa like the Rock of Gibraltar, even though the opposition PDP is yet to give up in its mission to upturn his electoral victory as it is jumping from one court to another.

Between May 29, 2015 when the baton of leadership got to Buhari’s hands, he has operated or and related with other branches of government as the head of the executive arm on the basis of the provisions of the 1999 Constitution of the Federal Republic of Nigeria or so it appears.

That was unlike what obtained from December 31, 1983 when he seized power by coup d’état which ended the Nigerian Second Republic when he operated by Decrees till August 27, 1985 when he was ousted by the military President Ibrahim Babangida..

Role of judiciary in democracies

It is trite to say that unlike military rule, democracies are characterised by the separation of functions and powers among the three branches of government: the legislature, the executive and the judiciary. The three branches check one another’s powers.

Specifically, the legislature in a democracy makes the laws, the executive executes the laws made by the legislature while the judiciary is saddled with the responsibility of interpreting the law, decides disputes submitted before it by individuals and institutions and applies the Constitution in the name of the state while its decisions are binding on all persons and institutions within its jurisdiction.

Down the ages, political philosophers, writers and scholars have recognized the judiciary as one of the main branches of government in all constitutions, primitive, colonial or modern. It is an institution that is given an important role to play in government in a democratic polity and, in fact, in dictatorial regimes where it is found a useful tool in procuring some measure of legitimacy for their authoritarian and personalized rule.

According to a renowned constitutional lawyer, Prof Ben Nwabueze (SAN), the judiciary, as the guardian of the law, is in a unique position to create an attitude of respect for the constitution and human rights, a habit of order and regularity in the conduct of public affairs.

No wonder, the 1999 Constitution considers it so important to devote the whole of its Chapter VII to provide for the establishment of court levels, their jurisdictions and security of tenure for judicial officers of the courts, among others.

But how has the judiciary fared under the present administration of President Muhammadu Buhari?

Without any scintilla of doubt, the Nigerian judiciary has been fearless in the discharge of its duties. Instances are replete in Nigerian history on how the third arm of government had, when facts and laws were against governments of the day, ruled against them without batting eyelids.

Recall the intervention of the judiciary in so many public interest cases in the past including the popular tenure elongation suit where the Supreme Court bench sacked five sitting governors of Adamawa, Bayelsa, Cross River, Kogi and Sokoto one day. The sitting governors in those states including  Admiral Murtala Nyarko, Chief Timipre Sylva, Senator Liyel Imoke, Alhaji Ibrahim Idris and Alhaji Aliyu Wammako vacated office immediately and heavens did not fall.

The nullification of the illegal impeachment of Oyo State Governor, Rashidi Adewolu Ladoja by 18 of the 32 members of the House of Assembly and his reinstatement was another glorious moment for the judiciary.

The pronouncement of the Nigerian judiciary on the constitutional suit between the government of Cross River State and that of Aka Ibom State regarding the ownership of 76 oil wells located in the Atlantic Ocean, and not oil wells located on Bakassi Peninsula is still fresh in the memory, just to mention a few.

Even during the on-going administration of President Muhammad Buhari, the judiciary had severally ruled against the government of the day.

For instance, the judiciary, one after another, had stopped APC from fielding candidates in Rivers, Zamfara, Bauchi, Sokoto and Cross River states recently which made PDP to sweep the entire polling units without stress while in some others, judgment went in favour of the ruling party depending on the facts of the case and the applicable laws.

As a self-cleansing organ of government, the National Judicial Council (NJC), which is the body charged with the responsibility of hiring, firing and disciplining erring judicial officers has also heightened its activities lately.

More judicial officers are now getting warnings for different judicial infractions, while others are recommended for dismissal or compulsory retirement periodically.

A lot more are also under investigation following plethora of petitions before the NJC.

In addition, the CJN is driving home series of reforms aimed at improving quick dispensation of justice and also rid the system of bad eggs.

It was on account of this that he adopted the use of new technology, through the introduction of Nigeria Case Management System (NCMS).

The immediate past CJN Onnoghen during his tenure which came to an abrupt end, also inaugurated a 13-man steering committee on judiciary reform.

The committee headed by the Secretary of the National Judicial Service Commission, Mrs. Bilkisu Bashir, was tasked “to coordinate a comprehensive reform of the country’s judiciary”.

Hopefully, the results of these efforts are beginning to manifest.

The judiciary, generally has been up and doing. Even in the last 2019 general elections held all over the country, so many cases (pre and post-election) were filed in both regular courts and tribunals. The judiciary has not failed in anyway, to hear and deliver judgments within the time allowed by law.

Already, all the four cases filed by those that contested the 2019 presidential election against President Buhari had been decided one way or the other.

Similarly, various petitions which challenged the electoral victory of various sitting governors and lawmakers at both state and Federal levels had also been decided by the judiciary.

In each of these cases, the court’s gavel had been wielded either for or against the ruling or opposition party.

The performance of the judiciary has been so fantastic that during the on-going Fourth Republic, a number of credible media organisations had, at different times, voted the judiciary as their Man of the Year.

That is not to say that there are no cases in which Nigerians expected different judgment other than the one handed down but the judiciary had always argued that it is a court of law and not of emotion.

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It is not without reason therefore that aggrieved Nigerians think of nothing but approaching courts anytime they feel their rights have been infringed upon.

Relationship between the judiciary and the executive under Buhari’s gov’t

However, as exciting as that appears, the Chief Justice of Nigeria (CJN), Justice Ibrahim Tanko Muhammad has said that the Nigerian courts at all levels are overloaded with cases.

Muhammad spoke last Monday in Abuja at an event marking the Supreme Court’s New Legal Year and the inauguration of 38 new Senior Advocates of Nigeria (SANs).

Hear him: “As rightly observed, Nigerians are the most litigious people on earth.

“In every little disagreement, we rush to court; and in every lost case, we rush to appeal even up to the Supreme Court, no matter how infinitesimal the issue might be.

“That has obviously accounted for several appeals pending in Supreme Court.

“The attitude of some of our lawyers, too, is less salutary,” he lamented.

The CJN, who blamed the development on Nigerians’ preference for litigation suggested a constitutional amendment to stop the termination of interlocutory appeals at the Supreme Court.

Similarly, the immediate past Chief Justice of Nigeria (CJN), Justice Walter Onnoghen had in 2018 at an event marking the Supreme Court’s New Legal Year had also raised the alarm that the docket of the Supreme Court was full up to 2021 and that fresh appeals filed in 2019 would only be accommodated from 2021.

In 2016, Justice Mahmoud Mohammed, the then CJN, had also made similar observation in his valedictory speech as he clocked the retirement age of 70 years on November 20, 2016, that some of the appeals pending before the apex court “have become academic”.

Earlier on February 4, 2015, about nine months before his retirement, Justice Mahmoud had, while speaking in Abuja at the Nigerian Bar Association’s ‘public dialogue on the future of the administration of justice in Nigeria’, told his audience that the apex court was “burdened with over 5,000 appeals”.

He said over 800 appeals were filed in 2014, a pre-general elections year, with another 10 appeals already filed in 2015.

“The court registry is currently burdened with over 5,000 appeals, and the panels of Justices are still hearing appeals filed in 2005,” the then CJN had said.

The ex-CJN’s disclosure did not imply that there were no earlier appeals filed before 2005 still pending before the Supreme Court as of February 2015.

The situation is the same even at the lower bench. Just last week, for instance, the Chief Judge of Benue State, Justice Aondover Kaka’an, said the state judiciary is almost at a crisis point owing to court congestion.

Justice Kaka’an who reeled out statistics said estimated 11,737 criminal and civil cases are pending in the courts statewide.

He said the High Court recorded 2,836 criminal cases and civil ones, out of which 470 were disposed of, while 2, 366 are pending.

Justice Kaka’an spoke in Makurdi at a special court session marking the 2019/2020 legal year.

He said the High Court also recorded 2, 287 motions and disposed of 975, leaving 1,312 pending.

He said the magistrates’ and area courts registered 14,054 criminal cases, out of which 2,317 were disposed of.

The chief judge said more hands should be brought in to reduce the work load on overburdened judicial officers.

Similarly, the acting Chief Judge of the Federal high court, John Tsoho, lamented the inadequate number of judges and courts to address the increasing demand of litigation in the country.

Mr Tsoho said he will discuss the need for engagement of additional judges “with leaders of the Judiciary sector as a matter of urgency”.

He said the High Court recorded a backlog of 116,623 cases during the outgoing judicial year.

All through the lifespan of Buhari’s administration, the judiciary arm of government, even though conservative, has constantly raised the alarm to attract the attention of both the executive and the legislature to do something but almost five years in the saddle, there appears no respite in view.

In fact, things are getting worse as it is feared that aggrieved litigants may no longer want to approach court knowing fully well that their case file would only gather dust on the shelves of courts’ registry which is dangerous for the nation’s democracy.

Way forward on court congestion

Charting a way forward, a respected member of the inner bar, Chief Mike Ahamba (SAN) said “Part of what we can do to tackle the congestion problem is to increase the number of justices, for instance, at the Supreme Court because there are vacancies there. If the constitution says they can be up to 21 and they are not 21, then, there should be more appointment.

“But there is a problem with appointment into the Supreme Court bench. When it is to be done, it should be very carefully done. This is because the decision of the Supreme Court is like a statutory statement. One of the sources of law in Nigeria is judicial precedents.

“The judgment of the Supreme Court is part of the Nigerian law. It is not an all-comers affair. They have to take time to bring people in if only they can do less of geographical spread at the Supreme Court and look for competent materials instead of satisfying geographical spread,” he said.

Judiciary is challenged, overburdened with cases and inadequate personnel

Apart from court congestion, learned silk, Chief Ahamba (SAN) also said court facilities are inadequate and that it is so bad in some states that judges share courts to sit.

According to Ahamba (SAN), “Then, we have to do a recourse to the mode of proceedings both at the Supreme Court and the court below.

“There is so much pressure on members of the bench at all levels. If you look at it, the personnel they have is less than what they should have.

“A Supreme Court justice should be equipped like a whole high court in personnel and everything. The number of the personnel that a high court should have, a Supreme Court justice should have.

“There are so many things to be done like research and all that. Then, we look at the competence of the secretariat personnel in this court.

“Some courts in Nigeria still use Olympia Typewriter to type documents. Do you believe that? And they don’t have typists that are computer literate. So, these are the areas to look at.

“Before any new staff is employed in the secretariat of any court in Nigeria, he should show evidence of computer literacy so that you don’t have to go photocopying, all the time.

“Because some of them are not computer literate, when a judge writes a 20-page document, it takes 20 days to produce instead of hours. Why won’t there be delay? So, the way the judiciary is looked at generally is not okay.

“Everybody needs the judiciary but nobody talks about the judiciary. Do you have any speech from all levels of government that has nothing to do with the issue of the bar and bench.

“Even the laws of the national assembly, those who prepare the budgets at the National Assembly, the Executive , do they actually remember that the judiciary is one area that everybody needs mandatorily and look at it as a primus inter pares.

“Everybody will complain but nobody is helping the judiciary as an institution. We have to change that attitude. This is much I can say about it for now. I’m happy that it was the Chief Justice that raised the clarion call now.

“The truth is that the Attorney-General should set up a seminar on improving the treatment given to the judiciary. Let’s go and discuss it in a seminar. It is the bitter truth that the actions of this arm of government affects everybody generally. And yet nobody sees their problem as everybody’s problem.

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Nothing can be more corroborating than a recent event in Ondo State when Governor Oluwarotimi Akeredolu (SAN) shared 16 brand new Toyota Land Cruiser Prado SUVs to 16 high court judges in the state.

The Chief Judge, who appreciated the Governor for the gesture, said Judges in the state, including herself, had been using ten year-old rickety vehicles before the governor’s intervention.

Her words: “My colleagues and I have been riding ten year-old vehicles hitherto. We have had various experiences of disappointments in the use of our vehicles.

“I recall once I was on the way to Abuja, my vehicle broke down around Obajana. And you know the security situation in that axis.

“Before long, the boys were gathering. Fortunately for me, I had the pilot vehicle with me. I had to enter the pilot vehicle to get away from that environment

“If you bring my colleagues here, they will tell you the various experiences they have had with their vehicles. I want to thank God for Mr. Governor.

“I want to appreciate this good gesture. We don’t have feelings of entitlement.

“Though the regulation says give judges new vehicles every four years. By this regulation, it’s an entitlement.

“But at the same time, we want to appreciate Mr. Governor for not taking us for granted,” the chief judge said.

Disobedience to court order

As overworked and underequipped as Nigerian judges are, even when they struggle to hear cases and deliver rulings or judgments in some public interest litigations against governments, the verdicts are treated with disdain.

There are a number of cases in which court orders were secured against the government of the day to release on bail certain individuals standing criminal trial but the executive had refused to obey the verdicts.

The case involving former National Security Adviser during President Goodluck Jonathan administration, Sambo Dasuki is a notorious example. There were serial orders from trial, appellate and regional courts in favour of Dasuki but they were all disobeyed. The case of the leader of Islamic Movement in Nigeria, Ibrahim El-Zakzaky is another one which the executive refused to obey. Except with a change of heart, the latest is another court order directing the Department of State Service (DSS) to release a Nigerian journalist, Omoyele Sowore on bail but the executive is yet to dignify the court order.

Buhari reacts against disobedience to court order

Pressure had mounted in the past on government over its attitude to court order. But at a forum of lawyers, President Buhari had lifted section 45 of the constitution as reason why he was not guilty of allegations of disobedience to court orders levelled against him. He had specifically argued: “The rule of law must be subject to the supremacy of the nation’s security and national interest.”

He gave the defence before lawyers at the 2018 Nigerian Bar Association Annual General Conference in Abuja.

He buttressed his argument: “Our apex court (the Supreme Court, that is) has had cause to adopt a position on this issue in this regard, and it is now a matter of judicial recognition that where national security and public interest are threatened… the individual rights of those allegedly responsible must take second place in favour of the greater good of society.”

President Buhari, no doubt, was encouraged by the provision of Section 45 of the Nigerian Constitution which allows that “Nothing in Sections 37 (right to privacy); 38 (freedom of conscience); 39 (freedom of expression); 40 (freedom to assemble); and 41 (freedom of movement), shall invalidate any law that is reasonably justifiable in a democratic society.”

These “reasonably justifiable” conditions include: “The interest of public defence, public safety, public order, public morality, or public health; and the purpose of promoting the rights and freedom of other persons.” 

But stakeholders are contending that Nigerians must continue to demonstrate open disagreement with the President’s stated hint of intent to rape the freedom of the people and that the rule of law must be upheld, and no dictator, benign, severe, military, or civilian, must be allowed to violate citizens’ rights.

Security of tenure under threat

Security of tenure of judicial officers is another issue under the present administration. While the 1999 constitution provides for security of tenure for judicial officers, the circumstance under which certain heads of courts were removed lately left much to be desired.

A renowned rights activist and Lagos lawyer, Mr Jiti Ogunye, had recalled January 25, 2019, when the President of Nigeria , Muhammadu Buhari suspended the Chief Justice of Nigeria, Justice Walter Nkannu Samuel Onnoghen from office and immediately administered judicial oath of office on the most senior Justice of the Supreme Court , next in rank to him, Justice Ibrahim Tanko Muhammed as the Acting Chief Justice of Nigeria.

Ogunye said: “Following that act, the president delivered a 25-paragraph address, akin to a coup speech, wherein he gave reasons for his action.

“Essentially, the president explained he was swiftly executing court order (exparte) (that is, a one-sided order procured without notice to, and the knowledge of the “suspended” CJN or his lawyers) of the Code of Conduct Tribunal (CCT), made and dated the 23rd day of January, 2019.

“The order mandated him to suspend the CJN from office, pending the final determination of his trial at the CCT, and swear in the Justice of the Supreme Court next to him in rank, as an

The CJN had been accused in the charges of receiving into and retaining in many banks accounts huge sums of money in foreign and local currencies, without disclosing them in his asset declaration forms and documents submitted to the CCB.

According to Ogunye, “But if the truth must be told, the reasons for the action of the Executive are beyond the fight against corrupt practices in the Judiciary.

The constitutional path to be charted to legally suspend or remove a CJN from office is luminously delineated by the Constitution.

What the law says

By virtue of Section 292(1)(a)(i) of the Constitution, the CJN cannot be removed from his office or appointment before his retirement age (or suspended from office while the real intention is to secure his removal) except by the President, acting on an address supported by two thirds majority of the Senate.

“The NJC, by virtue of paragraph 21(b) of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended ) recommends to the President the removal from office of certain category of judicial officers including the CJN , and exercises disciplinary control over them. Problematic? Of course, yes.

“This is because regulators are being impracticably saddled with the power to regulate themselves. But that is the path for the removal or suspension of the CJN from office as provided by the Constitution!

“Section 18, Part 1 of the Fifth Schedule to the Constitution defines the power of the CCT.

“In particular, Section 18 (2) stipulates the punishments which the CCT may impose upon conclusion of trial. They are: (a) vacation of office or seat in any legislative house as the case may be; (b) disqualification from membership of a legislative house and from the holding of any public office for a period not exceeding ten years; and (c) seizure and forfeiture to the State of any property acquired in abuse or corruption of office .

“Instructively, the CCT is not vested with any power under the Constitution or the Code of Conduct Tribunal Act to order the Executive Branch of Government to suspend a public officer who is undergoing trial before it, from office, pending the conclusion of trial, as the CCT has purportedly done.

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“Also instructive is the fact that being a quasi criminal tribunal, the rules of procedure of the CCT is the Administration of Criminal Justice Act, a criminal procedure act, under which an ex parte or interlocutory order, analogous to an order of injunction obtainable in civil proceedings (under the civil procedure rules of our courts) may not be validly sought or granted.

“What the Executive Branch of Government has done in the circumstances, therefore, was to force the matter of the desired removal of the CJN from office.

“The Federal Government knew there were constitutional blockades against its desired removal of the CJN from office.

“It recognized that FRN V NGANJIWA, 2018, 4 NWLR ( Pt. 1609) , 301 at 341 and 349, is a caselaw obstacle. But it was determined not to be restrained or frustrated by the rule of law. Dangerous Precedent

“The suspension of the CJN should, therefore, not be cynically and mischievously tied to the quest to preserve the rule of law, as the Executive has done.

“What the Executive has done is an inconsiderate abuse of power. It erodes the independence of the judiciary. It creates a scary precedent allowing the Executive Branch of Government, acting by itself or through selected surrogates or proxies, to file a petition before the CCB and casually and interminably saunter into the CCT to obtain an ex parte order against a judge, suspending him from office, pending the determination of the charge that is filed against him or her by the CCB or the conclusion of his trial by the CCT.

“If this precedent were to become a permanent rule of law, the security of tenure that is granted to judicial officers under the Constitution will become “a tenure of insecurity” for judicial officers.

“The legal profession in Nigeria, Bar and Bench must, however, accept that in many ways, some of its members, including senior lawyers, have contributed immensely to the burgeoning of corrupt practices in the legal profession, and to the counterfeiting of the rule of law.

“While many were complaining about the haste with which the Onnoghen ouster project was prosecuted by the Executive Branch of Government, a desperate Chief Justice Onnoghen, with the assistance of an equally desperate team of lawyers stormed two courts ( Federal High Court and the National Industrial Court ) on Monday the 14th of January , 2019 to procure orders restraining the CCT from proceeding with his arraignment or trial,” he added.

Also corroborating Ogunye, the President of the Nigerian Bar Association  (NBA) Paul Usoro, has accused the Buhari-led government of undermining the independence of the judiciary.

Mr Usoro gave the remark at an event to mark the beginning of the 2019 judicial year in Abuja.

He accused the executive arm of government and its agencies of plotting to “tele-guide the activities and decisions of the courts”.

Mr Usoro said “the mental and physical disposition of judges was instrumental to the attainment of justice in any society”.

He also said the independence of mind and thoughts by judges in the determination of matters before the courts is under severe attack.

He said the executive arm of government and its agencies are increasingly and
unceasingly critical of the judiciary and its decisions “particularly in matters that the Government and its agencies may be interested in.”

“It is not unusual these days to hear high officials of government talk down the judiciary and ridiculously and rather ill-advisedly dump all the ills of society on the judiciary,” he said. “Decisions by Your Lordships are sometimes brazenly denigrated and attributed to ulterior and ill motives – and these on social and traditional media platforms.”

He also said “veiled and sometimes open and, in all cases, audacious attempts are made to tele-guide and program the decisions of courts”.

“These are very dangerous practices that destroy the independence of the judiciary and by extension the rule of law and indeed the fabric of our society,”the NBA president said.

Mr Usoro said the success of a democracy was largely dependent on a free judiciary and that denigrating the judicial sector was an invitation to anarchy.

“The society needs and can only survive if we have independent-minded judges who are empowered to dispense justice to all manner of men, including government departments, without fear or favor,” he said.

 “We can only survive as a nation if the independence and vibrancy of the judiciary, particularly, the non-interference with the thoughts and decision-making processes of Your Lordships, are guaranteed and protected.”

The NBA president also said: “self-help and anarchy ultimately become the available remedy. Of course, our economy suffers in the process: the investing public, both local and international lose confidence in our justice system consequent upon these denigrations of our judiciary and there follows a consequential downturn in our economy with the attendant fallout on the socio-economic wellbeing of our people.”

Funding of the judiciary

There are other areas which have not been touched in this report including funding of the judiciary particularly at the state level and the arrest of judges including justice of the Supreme Court by agents of the executive midnight over allegations of corruption. Although some of the judges were taken to court, none is yet to be convicted.

In defence of the judiciary

The National Publicity Secretary of the NBA, John Austin Unachukwu, is of the view that the judiciary within the last three years has confirmed that it is the bedrock of Nigeria’s democracy.

According to him, “It is said that judiciary is the last hope of the common man and we have seen it. Nigerian judiciary had worst experience in the last one year, when the judiciary was the target of attacks by state security agencies but the judiciary survived it. I am proud of Nigerian judiciary.

“In spite of the allegations and all the assertions of corruption here and there, no judicial officer has been convicted by a court of competent jurisdiction of the allegations of corruption and other allied offences.

“The executive arm of government had tried to cow the judiciary and intimidate it to submission even when it should be an independent organ of government.

“But the judiciary refused to bow. I encourage them to continue to weather the storms and challenges in the years ahead.”

Unachukwu stressed that the judiciary is the only arm of government that has self-cleansing mechanism, in which it uses to discipline erring members.

“The NJC, he noted, has done so much in this respect, although there is always room for improvement.

He therefore, urged the judiciary to continue to do what it is doing in order to restore the confidence of Nigerians in the sector.

Similarly, a former attorney general of Delta State, Charles Ajuyah (SAN) said the judiciary has gone through thick and thin in the last few years.

“We are all witnesses to what happened not long ago. Their conditions have not really improved. So, they are working under very hectic conditions – a lot of cases, appeals and political cases coming up, which is quite a challenge for them.

“But taking all into consideration, I think they have done well. They have helped to sustain democracy in this country. Even though there are one or two bad eggs, we need to commend them for the effort and the work they are putting in spite of the challenges they are having,” he stated.