By Douglas Ogbankwa Esq.
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The independence of the judiciary is the fulcrum of a disinterested judicial system. It is an anomaly for a governor of a state or officials of the executive arm of government, who are parties before courts, to be the approving authorities for the same courts where their cases are pending. Budgeting is governance. He who feeds you controls your actions. If Nigeria is to be serious about having a fair dispensation of justice, implementing the provisions of the law that removed undue and illegal executive interference in judicial activities is the way to go. Sometimes, governors buy cars and write the names of judges to be given the cars, and they also determine those who go for training and who even gets law reports. How can you ensure a fair dispensation of justice within such a strong hold on the judiciary by the executive?
Some Bar leaders act as if things are okay, talking about pedestrian issues when the main crux of the judicial process, the judiciary budgetary process, is left to political control because some of them are beneficiaries of the skewed process. The Nigerian people are, however, the biggest losers. Sometimes, they are just pawns in a complex puzzle, like in the game of chess, which actually translates to the Game of Thrones!
The Nigerian judiciary is under siege from politicians and their internal collaborators in the legal profession and the judiciary itself, and it is now a laughing stock of the public and the international community.
Injunctions are now commonplace, even those that determine the main matter at the ex parte or interlocutory stage.
We lost it during the Onnoghen case. Justice Walter Samuel Onnoghen, the then Chief Justice of Nigeria, was removed from office with an ex parte order by the Chairman of the Code of Conduct Tribunal, who was equivalent to a magistrate in Nigeria, and we all stood by and watched, saying Not My Business. Slowly but surely, we are now victims of our silence.
I said it then, that it was not about Onnoghen, but about the desecration of an institution that is sacred. That desecration is now haunting us all.
Now things have become sore and even more dire. Citizens will seek injunctions against governments when they have established legal rights, have shown the urgency in the matter, shown that the balance of convenience is on their side, and that damages will not adequately compensate them for the looming losses if the injunction is not granted, and they are denied the injunction, which necessarily is concomitant from the facts of their case.
Conversely, government and forces in and around government seek even ex parte injunctions when they have not shown any established legal right, where the order sought will, one way or the other, determine the main issues in controversy, and the injunctions are granted, even in the face of insufficient affidavit evidence and the law which precludes such judicial indiscretions.
We now have judgments that do not even make common sense or legal sense, even to the most experienced lawyers. As J.B. Daudu SAN, former President of the NBA and Chairman of the Council of AfBA, once said at the NBA AGC at the International Conference Centre in Abuja in 2018:
If you want to know that a judge compromised, reading the judgment can provide evidence of same; you do not need to see him collect bribe.
The charade continues on all fronts. We are now a laughing stock. We either get it right now or lose it forever. We will be victims one day!
Justices Taslim Elias, Fatai Atade Williams, Chukwudifu Oputa, Udo Udoma, Aniagolu, Mohammed Bello, and Peter Irekefe will all be crying in their graves, lamenting the state of the Nigerian judiciary.
The Bar Must Rise Up to the Occasion
The appointment process of judges must be taken out of the purview of politicians. In this regard, we must amend the Constitution to leave judicial appointments to judicial authorities alone. This also includes the swearing-in of judges and chief judges. The outgoing Chief Judge should be made to swear in the incoming Chief Judge, while the Chief Judge should swear in newly appointed judges. A Nigerian anomaly requires a Nigerian solution. Since the President and governors have abused the power of swearing in judges and chief judges, we should make them irrelevant in the process so that the sanctity of the judiciary can be protected.
Appointments and interviews of Kenyan judges are covered live on television. We must remove the secrecy that accompanies the appointment of Nigerian judges. It must be open to public glare and public scrutiny. This is the only way we will be sure that there is transparency in the process. Publicity guarantees the fairness and justice of any process.
The days of announcing the appointment of judges by NJC statements should be over. Let Nigerians see by themselves who is qualified and who is not. Let the selection process and interviews for judges be covered live on television. That is the only way we can vouch for the integrity of the process.
We will not be proud to bequeath this current Nigerian judiciary to our children. You might be gaining from the system today, but you can become a victim tomorrow.
We should also fight for the financial independence of the judiciary, as provided for by Section 121(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which provides thus:
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.
There is no magic about the issue. Just pay the money standing to the credit of the judiciary on first-line charge from the Consolidated Revenue Fund to the heads of court. It is that simple. What is the hullabaloo about this? If you protect the rule of law while in office, the rule of law will protect you while you are out of office.
The judiciary should also be self-assertive on issues when the law is on its side.
In Kunle Edun & Ors. v. The Cross River State House of Assembly & Ors.
where Kunle Edun, the National Welfare Secretary of the Nigerian Bar Association (NBA), Ike Augustine, a radical lawyer from Owerri, Imo State, and other radical lawyers challenged the propriety of the Cross River State House of Assembly denying the most senior judge in Cross River State the position of Chief Judge of Cross River State because she is from Akwa Ibom, though married to a husband from Cross River, the Federal High Court in Calabar ruled that there was no evidence that the House of Assembly was unfair to the judge. That was another case of the judiciary not being self-assertive, ruling against itself when the facts and the law were on its side. The case was later settled on appeal and the efforts of our Bar heroes played a prominent role in the right thing being done.
If you cannot liberate yourselves little by little, nobody will liberate you. If the political class knows that you are a toothless bulldog when it comes to your issues, they will continue to run the judiciary as a parastatal of Government House.
Budgeting is governance. The man who controls the budget controls the structure. The inconvenient truth is that you cannot get real justice in Nigeria the way the judiciary is being run now, as per the budgeting process. The men who approve the budget and sign the cheques all have cases, or have friends and family who have cases, in court. How do you expect justice in such a very partisan arrangement?
A situation where a Chief Judge or the Chief Registrar goes to Government House to beg for money which belongs to the judiciary, and sometimes they are denied, is completely unacceptable. In some states of the federation, if an expenditure of the judiciary is more than one million naira, the Chief Judge is at the mercy of the governor. How can we have fairness and justice in such a scenario?
Those in power should also know they will not be there forever. You will be a victim of the system you fostered today, tomorrow, if you do not follow the law today. I promise you that the law will not follow you when you need it to be on your side, as the same warped system you have nurtured will be against you.
Douglas Ogbankwa Esq. is the immediate past Director of Strategic Communications of the African Bar Association and the Convener of the Vanguard for the Independence of the Judiciary.
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