Awa Kalu, SAN

By Awa Kalu, SAN

In the first installment of this piece we discussed the fundamentals of judicial power as well as dimensions of strike action and raised three questions to wit; Who is the employer of the JUSUN workers who are on strike?;

Are those workers on strike because of a dispute with individual State governments or with a combination of all State Governments, or has the strike arisen because of a dispute with the Federal Government? Also relevant is the question whether the Judicial staff who are on strike have any condition in their individual or collective agreement relating to or arising from ‘Judicial Autonomy’? and Can the judicial apparatus of any state be shut down for as long as two months because of the quest for Judicial autonomy as presented by JUSUN, at least publicly?

These questions will now be answered seriatim. According to the 10th edition of the Blacks Law Dictionary; ‘Employer’ means ‘A person, company or organisation for whom someone works, especially one who controls and directs a worker under an express or implied contract of hire and who pays the worker’s salary or wages.’ In furtherance of the question raised, it must be pointed out that there are three necessary institutions provided for by the extant constitution that must, at face value, seem to wear the garb of ‘employer’ either of Federal or State Judiciary workers.

By virtue of Item 21 of Part 1, Schedule 3 to the 1999 Constitution, the National Judicial Council has power to recommend to the President the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph and to exercise disciplinary control over such officers; recommend to the Governors from among the list of persons submitted to it by the State Judicial Service Commissions persons for appointments to the offices of the Chief Judges of the States and Judges of the High Courts of the States, the Grand Kadis and Kadis of the Sharia Courts of Appeal of the States and the Presidents and Judges of the Customary Courts of Appeal of the States;

(d) recommend to the Governors the removal from the office of the judicial officers in sub-paragraph © of this paragraph, and to exercise disciplinary control over such officers. On the other hand, Item 13 of the same schedule in paragraph C thereof, provides that the Federal Judicial Service Commission has power to appoint, dismiss and exercise disciplinary control over the Chief Registrars and Deputy Chief Registrars of the Supreme Court, the Court of Appeal, the Federal High Court and all other members of the staff of the judicial service of the Federation not otherwise specified in this Constitution and of the Federal Judicial Service Commission.

Similarly, Item 6 © of Schedule 3 to the 1999 Constitution provides that the Judicial Service Commission of a State has the power to appoint, dismiss and exercise disciplinary control over the Chief Registrar and Deputy Chief Registrar of the High Court, the Chief Registrars of the Sharia Court of Appeal and Customary Court of Appeal, Magistrates, Judges and members of Area Courts and Customary Courts and all other members of the staff of the judicial service of the State not otherwise specified in this Constitution.

A combined reading of these statutory provisions reveals that while the State Judicial Service Commission has the power to advise the National Judicial Service on persons suitable for appointment to judicial offices at the state level; the Federal Judicial Service Commission performs similar functions at the federal level. Whilst the Federal and State Judicial Service Commission recommend person suitable for employment into Judicial Offices to the National Judicial Service Commission, the Judicial Service Commission in turn recommends to the President for appointment as a Justice of Superior court of record, from a list of persons submitted to it by the Federal Judicial Service Commission and also recommend to State Governors from among the list of Persons submitted to it by the State Judicial Service Commission, persons fit for appointment into the State judicial arm of the state.

It is safe to say that by virtue of Item 5(c) of Part II of the third schedule to the Constitution, the State Judicial Service Commission has powers to appoint, discipline and exercise disciplinary control over the Chief Registrar and Deputy Chief Registrar of the High Court, the Chief Registrars of the Sharia Court of Appeal and Customary Court of Appeal, Magistrates, Judges and members of Area Courts and Customary Courts and all other members of the staff of the judicial service of the state not otherwise specified in this Constitution.

It is also safe to say that recourse to the phrase; ‘all other members of the staff of the judicial service of the state not otherwise specified in this Constitution’.as contained in the item implies Court clerks, bailiffs, research assistants and all other Court officials. It is therefore also safe to say that the State Judicial Service Commission is responsible for the employment and discipline of State judicial workers.

Similar provision can be found in Item13 ( c) of Part I of the 3rd schedule of the Constitution which provides thus;appoint, dismiss and exercise disciplinary control over the Chief Registrars and Deputy Chief Registrars of the Supreme Court, the Court of Appeal, the Federal High Court and all other members of the staff of the judicial service of the Federation not otherwise specified in this Constitution and of the Federal Judicial Service Commission. It is my opinion that the Federal Judicial Service Commission is responsible for the appointment, dismissal, and discipline of judicial workers of superior Courts. Although Item 21 (e) of the 3rd schedule of the Constitution states that the NJC is empowered to collect, control and disburse all moneys, capital and recurrent, for the Judiciary.

Based on these provisions, it is almost impossible to dispute the point that for Federal Judiciary workers, their employer is the Federal Judicial Service Commission, while it is similarly not in doubt that for State Judiciary employees, their employer must be the State Judicial Service Commission. The relevant question which JUSUN must answer is why the decision was made to shut down the totality of the Judicial apparatus in this very fragile environment (at this time) when many Nigerians are presumed to need the services of “The last hope of the Common man.”

The next question relates to whether the workers went on strike because of a Dispute with individual State governments or with a combination of all State Governments, or did the strike arise because of a Dispute with the Federal Government? Also relevant is the question, whether the Judicial Staff who are on strike have any condition in their individual or collective agreement relating to or arising from ‘Judicial Autonomy’? The answer must similarly be obvious, since it has been said that the disputants ought to have been Judiciary workers versus a combination of State Judicial Service Commissions.

The importance of the Judiciary as a branch of government was emphasized as far back as 1962 in the following words: ‘Section 21, subsection (1) of the Constitution is important in that it confers on every person with a grievance the right of access to recourse to the Courts. The section makes it practically impossible for the doors of the Court to be shut against anyone desiring to take his grievances there… it acts as a bulwark against the tendency to prohibit or oust the jurisdiction of the Courts where there has been either an infringement of a civil right or an imposition of civil obligation. ( Udoma JSC, (as he then was) in Burma v. Sarki (1962) All N.L.R 772 @ 780). If as was suggested in that decision, it was wrong for anybody to be shut out from a desired approach to the judiciary, why must it be done by resort to a strike?

While it is necessary to commend JUSUN for calling off their prolonged strike, the gratuitous advice which must be provided is that in the future, the JUSUN must evaluate what has happened in the past two months and use the outcome to determine the value or weight to be placed on any decision to shut down the judicial apparatus which inevitably is the essence of the third arm of government. The independence of the Judiciary cannot be questioned, but it is also on its own, a process that must be garnered and nurtured.

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