The judiciary must remain independent (2) 

LAST WEEK, I discussed the need for judges to remain impartial in the due administration of justice. I will commence this week’s edition with a consideration of the role of lawyers and litigants in shaping public perception to the administration of justice.

The role of lawyers in the public perception of judges

There is no doubt that lawyers play a major role in the public perception of the judiciary. They are highly instrumental in conveying the impartiality of a judge to their clients or to members of the public. Oftentimes, clients view a judge through the assessment of a lawyer who, rather than admit his mistake or ineptitude in the course of handling his client’s case, may allege that a judge is more favourable to the other side. This state of affairs is worsened by the fact that some lawyers have openly aired their views in the news media, casting aspersions on judges. Lawyers shape the public perception of legitimacy of law and justice. Sometime ago, Honourable Justice Abdu Aboki, while speaking on the theme: “We are Lawyers, Judges: Now Justice” during a lecture organised by the alumni of the Nigerian Law School, Class of 1977, cautioned lawyers from openly persecuting judges.

He reportedly noted that: “Most worrisome is the attack on the judiciary by the media and the members of the Bar. This is a huge limitation on the development of the justice system. Before the court makes a pronouncement or a judgment, the media with the help of legal practitioners would have carried out its own trial and passed its own judgment on a matter still pending before the Courts. This is indeed worrisome. We wonder at the roles legal practitioners play in all of this. You find legal practitioners on air daily, castigating judges and blaming them for all their woes in the justice system and the media of course is quick to run with these sensational stories; spreading it as far as it can get. I think lawyers should put a rein on their utterances, so that we do not with our own hands bring down the profession and legal system we have worked so hard to build. As for those who cannot do this and who continue to attack the judiciary without basis, they should be sanctioned.”

The effect of insecurity and corruption on the independence of judges

To ensure independence of judges, the Bench must also be shielded from the incidences of insecurity and corruption. It is common knowledge that the country is in crises. Nigeria is now faced with problems of unpaid salaries, pensions and other emoluments, spiral unemployment, different shades and shapes of violence, kidnapping, armed robbery, poverty, grossly underfunded institutions, and poor infrastructure. Though our currency was once stronger than the dollar, it is now almost N600 to a dollar.

In 2020, Nigeria was ranked as the poorest country in the world with over 50 percent of Nigerians living in extreme poverty while over 7 million Nigerians are in urgent need of life-saving assistance. Besides, Nigeria which was a safe country in those days now enjoys the negative accolade of being Number Three unsafe country in the world. Unfortunately, judges have not been immune from the reported incidences of kidnap. Back in 2019, a news report captioned ‘Reps Lament Kidnap of Judges,’ ‘Senate Seeks Permanent Solution’ made the headlines. The report noted, among others, as follows:

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“The House is conscious of the risks associated with performance of judicial responsibility on the lives of judicial officers and their families, and the necessity for judicial officers to be provided a safe, comfortable and conducive environment to operate; disturbed that judicial officers are becoming preys in the hands of criminals and the security of their lives and that of their family is under serious threat. Some weeks ago, Justice Abdul Dogo of the Federal High Court, Akure Division, was kidnapped on his way to discharge his official functions, and was later released after spending some days in kidnappers’ den. Just a few days after the release of Justice Dogo, Justice Chioma Nwosu of the Court of Appeal, Benin Judicial Division, was kidnapped in brutal circumstances. His lordship’s orderly was shot dead.

On the issue of corruption, again, some judges have been caught in the web of corruption and bribery. While there can be no justifiable reason for accepting bribes as a judicial officer, it, however, goes to show that more needs to be done in terms of the remuneration of judicial officers. The salaries of Nigerian judges when compared with the salaries of their counterparts in other countries are to say the least miserably low. Each time I see judges’ cars break down on the road due to age I feel sorry for the Judiciary. There are situations where some of them don’t even have cars. Worse still, unlike the Judges in those days who used to move around with their police orderlies into their gorgeous residences in the GRA, many judicial officers now live in rented houses in built-up areas.

Job security

In the effective discharge of their constitutional functions, judges must be immune from the doctrine of hire and fire. The job of a judge is characterized by a near-total absence of job security and judges have, over the years, been victims of harsh administrative decisions of divergent political structures, particularly the military. In addition, judges are constantly vulnerable to the fear of dismissal and the realization of economic woe which may befall them. However, if our judges are able to return to legal practice, even after dismissal, they will still have an opportunity to earn and therefore become more relaxed and resolute in the administration of justice, knowing full well that they can still dust the wig and gown and return to legal practice if they do not dance to the tune of influential and powerful people in the society. Major reforms have to be carried out in its judicial system, and certainly, the return of judges – retired, dismissed or resigned – to active legal practice is ripe for consideration. Even if such judges are not allowed to return full steam, there should still be a measure of participation in law practice that will ensure the sustained relevance of such erstwhile jurists in the nation’s development of law.

Appointment of judicial officers

The fact that appointments of High Court judges are made by the governor upon the recommendation of the National Judicial Council is one capable of abuse and therefore further eroding the independence of the Judiciary. From the clear wordings of Section 271 of the Constitution, the appointment of judges is made by the governor. All that the National Judicial Council does is to recommend based on factors such as vacancies and suitability of candidates. Where the governor proceeds to make the appointment based upon the recommendation of the Council, the appointee may feel a sense of loyalty to the governor who appointed him.

The government must particularly act in a manner that suggests it is serious about independence of the judiciary. A situation in which the judicial arm of government yearly gets pittance in terms of budgetary allocation is not one that will portray government in good light. Government may be perceived as punishing the judiciary for any perceived wrongdoing and this will never augur well for the polity. Jesper Wittrup in an article titled “Budgeting in the Era of Judicial Independence” stated as follows on this very point: “…governments should not only care about maintaining an actual high level of judicial independence, but they should also care very much about how their actions toward the judiciary, however, well-intentioned these may be, are perceived by others. Rumours may easily arise that the government tries to use the budget to punish or reward the judiciary for its actions… In Denmark, for example, there was a consistent rumour that the government’s demand for reductions of the total judicial budget in the beginning of the new millennium was a kind of punishment for a famous Supreme Court verdict (in the so-called Tvind case) which had declared unconstitutional a law passed by parliament banning schools run by a certain “sectarian” movement (Tvind) from receiving public funds. If a government’s stand on the total judicial budget is enough to raise concerns over possible violations of judicial independence, this becomes of course even more critical when the government does also have the power to allocate the judicial budget among courts, because it can then in theory direct funds to those courts and those judges it likes, and away from those it does not like.”

Conclusion 

The judiciary must maintain its independence at all times as the existence of an effective judicial system is pivotal to the sustenance of the rule of law. In every sphere of a judge’s endeavour, i.e. his appointment, remuneration, discipline, and activities on the Bench, it must be seen that the sanctity of the judiciary is maintained at all times. Equally, lawyers must play their part in the public perception of the courts. Where a judge is perceived corrupt, the appropriate procedures stipulated under the laws must be followed in ensuring his discipline.

AARE AFE BABALOLA, OFR, CON, SAN, LLD. D.Litt.