In Search Of Independent Minded Judiciary
By its very nature, the executive arm of government has an inherent tendency towards abuse or misuse of powers. Those in charge of Governments could be unconsciously chauvinistic. This is the case irrespective of the level of development of a democracy - likely misuse or abuse of executive powers is a factor common to both developed and developing democracies. The difference is that in developed democracies, there are established institutional frameworks, strong civil society and entrenched principle of separation of powers which serve to checkmate any executive excesses.
Because those who hold executive powers are inclined to certain ideological leanings and political persuasions, and the fact society is composed of varying shades of ideologies that need to be protected, it becomes imperative to imbued in any democratic culture a system that ensures judicious use of delegated/legitimate powers. It is acknowledged that most governments have the best interest of their countries at heart, this could not always be assured.
Also, as this is a human institution and the fact that absolute and unaccounted powers corrupt absolutely, it reinforces the need for accountability, checks and balances. One way in which state practice guards against possible slide to powerful government is through the Judicial system - this article seeks to add to the debates by Nigerians searching for an independent minded Judiciary.
The judiciary as personified through the courts and judges, is an arm of government with a mandate to protect society from illegal encroachment into its rights and liberties. The old cliche, separation of powers gives us a principle that the primary duties of state should not be carried out by the same body - be it the executive, the legislature or the judiciary. At the heart of this principle is independence of each arm involved in state practice. The judiciary is therefore independent when the courts and judges can administer justice without undue influence from other arms of government. This appears a far cry from what obtains in Nigeria. Here Judges wait for the 'body language' of the president, justice could be bought, courts are used to settle scores with political opponents, the law does not apply equally to the rich and poor, the law protects the strong and not the weak, judges play second fiddle to the executive, government get favourable judgements, and the ills continues. The courts here are anything but independent. This situation creates an unequal society, lacking in fairness and the protection of human rights of citizens. It negates the the ideals of the rule of law - which emphasises the equality of all before the law.
Judicial independence underscores the right of a legal system to operate independently, as an autonomous system without the general control of state, with the judiciary controlling its operation, and being free from central control. Independence of the judiciary ensures that citizens are secured within the protection of the rule of law. Could we say this is the case with the Nigerian judiciary? I'm afraid the answer is on the negative. What we have seen over the years is a complete opposite of what is ideal. The appointment of judicial officers is influenced, there is unsecured tenure of office for judicial officers, lack of budgetary and financial independence, lack of capacity to develop our laws through creative interpretation, and lack of strong moral conviction to dispense justice. This is the state of our legal system - it needs to be urgently rescued to ensure socioeconomic development and building a society anchored on the rule of law and protection of human rights against arbitrary use of power. The courts and judges play a vital role in disputes resolution, developing principles and rules, and to an extent in making laws through statutory interpretation. You may agree with me that this is a bedrock for realising a civilised society, where citizens' rights are protected.
The centrality of the judiciary in nation building is a fact that cannot be argued. It has become imperative to secure independence of this arm of government in Nigeria. If our quest is for a new Nigeria where the courts play its role in enshrining a sound legal regime and development of the law, then we must challenge the current status quo and the strategic deficit in the judicial arm of government. A governor of a state should not be in a position to prevent the administration of justice for over a year because they are not comfortable with certain judicial officers. The courts and tribunals should not only become active when doing the biddings of powerful individuals as is common in our society. Judges shouldn't go cap in hand begging for funds from the executive and the legislature. The system need to ensure independence both in word and action - financial autonomy, secure tenure, robust procedure for appointing judges and other personnel based on meritocracy. We need courageous judges that would enrich our jurisprudence through judicial activism and creative constitutional interpretation.
As a nation we continue to search for courageous stakeholders that will champion the course of the judiciary towards independence. The state of our judiciary is in shambles.The current power that be may be enjoying their influence on the judiciary, as power is transient it may be the turn of future successors to exert influence on the same institutions to pursue vendetta. Let us build a truly autonomous system that applies our legal rules consistently. Examples of how judicial independence can change society for good is illustrated in the following judgements. Lord Atkin (UK Appeal Court) in a seminal case Donoghue v Stevenson (1932) enunciated the Neighbourhood principle which formed the cornerstone of the development of the law of Negligence in the twentieth century.
Lord Denning is noted as the most influential judge of the twentieth century in the English judiciary because he championed judicial activism and creativity - his mark in the common law is instructive especially the development of equitable estoppel in the law of contract. These judges took great risks in doing something novel, applying the principles of archaic laws to current situations for progressive reasons. Most times Lord Denning was not popular amongst his colleagues but his actions earned him a place in the history of the English legal system - most of the legal reforms of later years hinged on his judgements. No wonder he was referred "the peoples' judge". Could our judiciary produce leaders that will sacrifice for common good? We live to see.