Judicial Independence: A Key To Curb Corruption In The Judiciary By Y.A, Usman Esq

To identify an existing problem in its actual context is a stepping stone to a proper point in finding a solution or remedy to the said problem. Therefore, it is very necessary to know what judicial independence and judiciary are all about.  Judicial independence is generally used to mean that both the institution of the judiciary and individual judges are free from any form of interference by other institutions and individuals.

From the above definition, it shows that the judiciary is not only the judges but it includes individuals working in the institution of the judiciary. Obikeze posits that “judiciary is the court and all those who work in the vine yard of justice.”

Judicial independence will enable individual judges to exercise their judicial functions without undue interference while making decisions. Judiciary is always expected to be freed from any other institution such as the Executive, the Legislature, the general public and any other quarter whatsoever; it makes its decision according to the laws and facts presented before it without restrictions, pressures, threats or interferences, whether direct or indirect.

Furthermore, it is the mandate of the judiciary to dispense justice to all manner of people, without fear or favor.  Kriegler J, a Retired Justice of the Constitutional Court of South African posited that the judiciary is an independent pillar of the State, constitutionally mandated to exercise the judicial authority of the State fearlessly and impartially.

It is also clear that, the judiciary as a strong arm amongst other arms of government has a role in a democracy to interpret the law and uphold the principle of the rule of law .Not only this, the judiciary has the constitutional right to settle legal matters and impartially administer justice. Hon. Justice Kayode Eso, JSC, aptly stated that without justice, law labours in vain.

It is obvious that, the challenges faced by the judiciary include the lack of independence which makes the hands of judges to be found in corruption.  Generally, corruption is the main obstacle to peace, stability and sustainable development, and equally a complex problem in any given society. However, the judiciary is expected to maintain judicial integrity and not to be seen as a corrupt institution no matter how the pressure is. His Lordship, Hon. Justice Samson Uwaifo, JSC, while describing a corrupt judge and what he can negatively cause to the society at large said:

“A corrupt judge is more harmful to the society than a man who runs amok with a dagger in a crowded street. The latter can be restrained physically. But a corrupt judge deliberately destroys the moral foundation of society and causes incalculable distress to individuals through abusing his office while still being referred to as honourable.”

Furthermore, a few studies of the matter show that there’s no doubt in the fact that, lack of independence of the judiciary is strongly linked to corruption. This is because the level of political pressure on the judiciary and constant control exercised by other institutions over the courts cannot be measured.

Moreover, one should not look far to know that lack of independence is found to hamper access to justice and one of the ways to cut off the influence of political and non- political connection within the judicial domain is to make sure that the judiciary has its independence which is the concrete measure to fight corrupt practice in the judiciary.

Undoubtedly, the more corruption grows in judicial system, the less the development in a country. It was previously stated that, the word “judiciary” includes those people working in the institution such as Registrars, clerks and other officers. Sadly, some of these corrupt practices take place in court registries where clerks have their ways of extracting money either from legal practitioners or the litigants without judge being aware of it. Some clerks are induced with money to reduce the number of points or distich some evidence from the case file.

It is important to note that the allegations of corruption cases filed or raised against some judges sometimes are used to discredit honest judges handling sensitive cases. This is because they know that the judge will not allow himself to be politically or socially influenced. A courageous judge who stands immovable and refuses to be influenced does that at his own peril, and must be ready to face the pain of losing his job.

Basically, attitudes of Judges to their duties are always expected to be positive, and they must disregard any form of political pressure or affiliation. In a case, a lawyer filed an affidavit stating that he noticed the judge will not do justice to the case and asking for transfer of the case to another court. Justice Oyemade, while reacting said:

“I will not allow myself to be intimidated into sending innocent person to jail. Even, if this means losing my job. I am still sure of leading a decent life. The only thing we have in this country is the judiciary. We have seen politicians changing from one policy to another and one party to another. But the only protection the ordinary people have against these inconsistencies is a fearless and upright judiciary. “

As a matter of fact, the judges who protect judicial integrity cannot avoid to be put in a position of being blamed or accused of failing to associate themselves with politicians and other institutions. It is imperative to equally note that both the rich and poor men look up to the judicial authority to see that justice is done in any given case. It is said that the judiciary is the last hope of the common man.

It must however be understood that the independence of the judiciary is not only enjoyable by the Judiciary but it also assist the people at large in getting justice done, the absence of which gives the way to the complex problem in the society. Lord Frances Bacon posits that “if we do not maintain justice, justice will maintain us”. Justice must not only be done but also be seen to be done.

The problem can be easily tackled once it has been properly identified. Judicial independence exists with the existence of certain elements in the judiciary, and at the same time, it could be missed with the absence of them. The said elements are as follows:

1. 1. Mode of Appointment and Removal of Judges
2. 2. Security of Tenure.
3. 3. Adequate Remuneration and Budgetary Provisions of Judicial Officer and other Staffs
4. 4. Non- Interference of other Institutions with the Judicial Process.

1. Mode of Appointment and Removal of Judges: To have independence of the judiciary in the judicial institution, the political and social influence should not be given a slight space to operate while doing the selection or recommendation of candidates for judicial appointments. This is because judicial independence disappears once the process in appointing judges is politicized or influenced by the executives, or a majority party in the legislature. The appointment of judges is expected to be on merit-bases and this is very essential to be considered in the appointment process. The modes of appointing or removal of judges are clearly explained in Sections 231 (1) and (2), 238 (1) and (2), 250(1) and (2), 256 (1) and (2), 271 (1) and (2) 276 (1) and (2) other sections of the Constitution of the Federal Republic of Nigeria 1999 as amended. Also, Section 292 of the Constitution spells out the procedures to be followed in removing a judicial officer.

From the foregoing provisions, it can be discerned that, the President or the Governor on the recommendation of the National Judicial Council appoints certain judicial officers and this is subject to confirmation by either the Senate or House of Assembly of a state as the case may be.  This only applies to judicial officers which includes the Chief Justice of Nigeria and Justices of the Supreme Court, President and Justices of the Court of Appeal, Chief Judge of the Federal High Court and the Chief Judge of the Federal Capital Territory. And as the case may be, the Chief Judge of the State High Court, Grand Kadi of the State Shariah Court of Appeal , President of the Customary Court of Appeal FCT Abuja, President of the Customary Court of Appeal of a State and President of National Industrial Court. In some appointments of judicial officers as the case may be, the President or Governor appoints only on the recommendation of the National Judicial Council without a need for confirmation by either the Senate or the House of Assembly of a State.

Section 292 provides as follows:

1. A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances –
   (a) In the case of –

(i) Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High Court, Chief Judge of the High Court of the Federal Capital Territory, Abuja, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and President, Customary Court of Appeal of the Federal Capital Territory, Abuja, by the President acting on an address supported by two-thirds majority of the Senate.

(ii) Chief Judge of a State, Grand Kadi of a Sharia Court of Appeal or President of a Customary Court of Appeal of a State, by the Governor acting on an address supported by two-thirds majority of the House of Assembly of the State, Praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct;
(b) in any case, other than those to which paragraph (a) of this subsection applies, by the President or, as the case may be, the Governor acting on the recommendation of the National Judicial Council that the judicial officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct.
(2) Any person who has held office as a judicial officer shall not on ceasing to be a judicial officer for any reason whatsoever thereafter appear or act as a legal practitioner before any court of law or tribunal in Nigeria.

Constitutionally, in respect of the appointment and the removal of judicial officers, the National Judicial Council is always charged with the responsibilities. Section 21 (a) and (b), part I of the Third Schedule spell it out.

It outrightly states that the removal of judicial officer is by the President or Governor upon an address presented by at least two third majority of the appropriate legislative house calling for such removal on the ground of misconduct or inability to discharge the functions of the office (in the case of the Chief Justice of Nigeria /State Chief Judge) or on the recommendation of the appropriate judicial service commission (in the case of other judicial officers). There is no doubt that in Nigeria, the appointments  and removal of the judicial officers at the both National and State level are sometimes not based on the recommendation of the Council as required and the grounds upon which the judicial officer can be removed which are misconduct or inability to discharge the functions of his office or contravention of the code of conducts which can only be investigated and confirmed by the National Judicial Council and this Council will also exercise disciplinary control over such officer, but all this are mainly in the hands of executive, legislature and even politicians. See the case of Hon. Justice Rafiat Elelu Habeeb & Anors vs. the Hon. Attorney General of Federation & Anors (2012) ALL FWLR (Pt.629)1011. The case was in respect of whether the National Judicial Council can participate in the removal of a Chief Judge from office. MOHAMMED, J.S.C, having consider the entire provisions of the 1999 Constitution in Sections 153 (1)(i) (2), 271(1), 292(1) (a) (II) and paragraph 21 of part 1 of the Third Schedule to the constitution dealing with appointments, removal and exercise of disciplinary control over judicial officers, held that:

“…I entirely agree with the two courts below that having regard to these relevant provisions of the 1999 Constitution the Governor of Kwara State and the House of Assembly of the State cannot remove the Chief Judge of Kwara State from office without the participation of the National Judicial Council in the exercise’’. 

The court held the same position in the recent case between Chief Judge of Kogi State and Governor of Kogi State. Also, the suspension of the Chief Justice of Nigeria, Walter Onneghen by the President Buhari which was done without the involvement of the National Judicial Council is another good example. It is apparently wrong even though some claimed that suspension is different from removal and therefore, no need to follow the procedural steps. The case of the President of the Court of Appeal, Justice Ayo Isa Salami is another good example.

2– Security of Tenure: As to security of tenure, the judges are expected not to be removed from their offices during a term of office, except for good cause such as an ethical breach or unfitness. This is because, if any judicial officer can be easily removed from the office, definitely there would be too much pressure on them while deciding some cases. Although in some countries, the entire judiciary will be changed with the change of the President. In this regard, one of the basic factors which gives room for executive domination or politicization of the judiciary is lack of security of tenure.

3– Adequate Remuneration and Budgetary Provisions of Judicial Officers and Other Staffs: the low level of remuneration often invites the attention of the judicial officers to get their hands in corruption. Remuneration of judicial officers at the lower courts are not attractive, this causes some judges to engage in collecting bribe from litigants and determine a case in favour of the litigants without basing their decisions on the facts and laws presented before them.

For the budgetary provisions, the judiciaries with inadequate resources who cannot be offered with the salaries, benefits, and pension needed to attract and retain their integrity, and also, to curb the likelihood of corruption will definitely involve in taking a bribe. It is extremely sad, where the judiciary in some states still depends on the executive and also begs for funds.

Section 162(9) of the constitution provides: “Any amount standing to the credit of the judiciary in the Federation Account shall be paid directly to the National Judicial Councils for disbursement to the heads of courts established for the Federation and the States under section 6 of this Constitution.” It is apparently unfair to hear complaints that a judiciary’s budget is very inadequate, and that the poor allocation of resources within the judiciary is a problem leads to the corrupt practice.

4. Non–Interference of Other Institutions with the judicial processes: judicial officers must be given the freedom to decide matters before them without any form of pressure from whichever angle. It is the duty of the judiciary to decide cases impartially, according to the law, and not base its decision on the will of any external interferences, influences or pressures. It is very saddening to hear that the judgment which is yet to be delivered is already known by the party in a case. This is because there are some judges who are judicial officers in the day and politicians at night. Some judges have even forgotten taking the Oath of allegiance and judicial Oath that they will not allow interests that inure to them personally to influence their official conducts and decisions.

Hon. Justice Oputa in one of his lectures delivered, at Obafemi Awolowo University said thus:

“Honesty and judicial rectitude are thus, the badge of a good judge. It is a calamity to have a corrupt judge, for money, its receipt corrupts and pollutes not only the channel of justice, but the very stream itself. Honesty and judicial rectitude are therefore the very minimal requirements of the judicial office. They snap at and break the brittle bond of confidence, which unite our citizens with the court system. Thus, scandalized and morally deformed, bewildered litigants no longer expect from the courts a just decision. The entire experiment of justice becomes a sham or at best a counterfeit for nothing is as hateful and as odious as venal justice.” 

It is also a growing responsibility of private lawyers and Bar Association to join the judicial officers in combating the corrupt practice in the judicial system. In some cases handled by a legal practitioner representing a powerful and influential parties, some lawyers act as agents of corruption by conveying bribes or offering some other things to induce the judiciary in order to decide a case at hand in his favour. Not only this, some legal practitioners make unlawful accusation of bias or incompetence against the judicial officers when they lose cases. The Nigerian Bar Association equally has a strong duty to judicial system by putting an end to unethical practices and adopts codes of ethics.

It is very essential in curbing corruption in the judiciary to order the judicial officers to declare their assets. This will definitely stop judicial officers from being influenced by any politicians.

In conclusion, independence of the judiciary is a key to reduce the corruption both within the judiciary and outside. It is a known fact that, the judicial independence has its origin in the principle of separation of powers, and as it entrenched in the Nigerian Constitution, this principle entails that none of the three arms of government i.e.; Executive, legislature and judiciary should encroach onto the power of the other. Each pillar has its own functions which are expected to be carried out independently. However, the attitude of government towards independence of the judiciary needs to be improved in order to save the judiciary from the direct or indirect of the political influences and other external pressures which give birth to the present level of corruption in the judicial system. There is a strong need for the judicial independence in order to locate where corruption resides and block its ways from coming closer to the judiciary.

By: Y.A, Usman Esq. ( Ar-rohees) Email: rohees9090@gmail.com Phone: 07033589425