Please Save Our Judges

By Muiz Banire, SAN

Yes, our judges need to be saved from their present precarious positions and ultimate perilous end. Judges are, by their callings, expected to be righteous, upright, independent, impartial and of necessity, incorruptible. What this implies is that at all times, they must be above board in all their dealings, particularly in the adjudication of cases. As an enablement, the State is expected to provide conducive atmosphere for their operations. These range from infrastructural support that will make the judges deliver or perform, to the conditions of service generally. This onerous duty of fairness and impartiality must be discharged regardless of the prevailing circumstances. It is in this context that I am engaging the system that is not only tempting the judges, but impoverishing them.

As at date and by the legal framework of Nigeria, the Certain Political, Public and Judicial Office Holders (Salaries and Allowances, Etc.) (Amendment) Act, 2008 governs the determination of the amount payable to judges as salaries and other allowances. This Act was made in 2008, the year the last review of judges’ salary package was done. This was about 12 years ago when the exchange rate of American dollar to naira was one hundred and seventeen naira (N117.00). As at date, the exchange rate is about four hundred and seventy-five naira (N475) to a dollar. The implication of this is that a judge’s salary has been static in the last 12 years.

This is in spite of all economic variables in the country and the galloping inflation. It is unarguable that the devaluation of the currency has rendered the purchasing power of an average Nigerian virtually useless. Judges live in the same society like others whose salaries are constantly reviewed, and patronize the same services and markets like others, yet we are unbothered by their welfare. Our expectation of them is that they remain saints, which is fair enough, but we are not fortifying them against temptations. Regrettably in recent times, the castigation has been on judges as being corrupt, notwithstanding the fact that only insignificant number of them are culpable. We, therefore, should desist from generalizing corruption in the judiciary. Out of every 12 disciples, there must always be a Judas. This does not make all of them corrupt. At date, the basic salary of a Justice of the Supreme Court is N2, 477,110.00 per annum while a Court of Appeal Justice earns N1, 995, 430.18 as annual basic salary and a High Court Judge earns N1, 804,740.00. By the time the allowances as specified by the Act due to each Judge are added, the take home pay of a Justice of the Court of Appeal is about six hundred and eight thousand naira (N608, 000.00), a Judge of the High Court earns five hundred and fifty six thousand naira (N556, 000.00) and a Justice of the Supreme Court about seven hundred and fifty three thousand naira (N753, 000.00). I am not concerned in this piece about any other perquisite that is discretionary and could be withdrawn or denied at any time. Indeed, I am aware that in one of the Courts, some allowances are often diverted by the Chief Registrar into other purposes than outlined. The interesting thing is that the Chief Registrar of the respective courts earns above the judges. You wonder how this is so!

This is because the emolument of this class of court officials is determinable by the National Salaries and Wages Commission. Not less than three reviews have been done at the behest of the national labour union within the same period. If we don’t want to continue banishing judges to poverty, the upward review of their salaries is imperative. The reality is that by the time a judge retires, his pension, calculated on the basis of the basic salary, will be a peanut. The point is that we need to raise the stake of the judges in the dispensation of justice. Let me not be misconstrued to be rationalizing or justifying any form of corruption by the negligible few involved in the act of corruption. To guarantee effective dispensation of justice, the least requirement is to urgently review the take home pay of judges. In terms of their responsibilities, just like that of an average person, it demands paying attention to their welfare. In South Africa, I understand that the Chief Justice of the country is the highest paid public servant while the surviving spouses of judges are provided financial security till death. It must be recalled that the judiciary is the bedrock of democracy, though the Nigerian experiment is still that of civil rule at best. Judiciary remains the last hope of the common man. The rule of law and by extension, the strength of the country’s institutions rest on a credible judiciary. The judiciary is an arm of government like the Executive and the Legislature. It is one institution that no system of governance annihilates its existence or relevance.

Be it under democracy, autocracy, military or even royalty, judiciary remains an indispensable tool. It is this same judiciary that is expected to be independent of all other arms of government. Consequently, judges are expected to be impartial at all times. It will be recalled that historically, judges were appointed in Nigeria via the Judicial Service Commission until a time that the Commission was abolished. In its place, judges were then appointed by the Prime Minister and Premiers respectively based on whether federal or regional appointment. This undoubtedly impaired the independence of the judiciary in that era. Thank God for the resurrection of the Judicial Service Commission eventually and the subsequent recognition under the subsequent Nigerian Constitutions. Although the process of appointment of judges under the current dispensation is yet to be perfect, it constitutes a remarkable progress over the old practice. It is important to point out the challenge associated with the division of responsibilities under the constitution in the appointment of judges. By the Constitution today, the National Judicial Council is responsible basically for the appointment, promotion and discipline of judges in Nigeria.

However, in a manner contrary to the above import, the relevant constitutional provision appears to be that the NJC is just a recommending body while the confirmation and appointing authority, in some instances, lies in the Legislature or the Executive. This dilatory approach is already a challenge in some instances, particularly where there is no concurrence amongst the various institutions. This grey area requires urgent surgery to exclusively situate the responsibilities in the appropriate body set up by the Constitution. This conflict needs to be addressed. Beyond the above, in guaranteeing the autonomy of the judiciary, the finances or funding is crucial. In fact, without financial autonomy, judges cannot be independent. For judges to live up to the demand of their offices and their calling, financial independence is a must. A situation where the judiciary must always go cap in hands to the executive for expenses is reprehensible. I have seen judges, at the verge of death, being deprived by the executive of their entitlements for medical treatment simply because such judge refused to compromise on a matter before him. This certainly cannot augur well for the institution that is supposed to be another arm of government.

The interesting thing now is that both at the national and state levels, the executive and the legislature enjoy financial autonomy. By the Constitution and judicial decisions, the judiciary is supposed to enjoy the same financial autonomy but is being castrated by the executive. Recently, President Buhari made an attempt to ensure this via executive order, though not potent; still, pressure forced him to back down. Court infrastructures are lacking. Thank God for COVID-19, the state of incapacity of the judiciary has been exposed to the extent that virtual court sitting remains a challenge till date. Why are we treating the judges this way? A large number of judges still write in long hand to the extent that they hardly last upon retirement. Where they are lucky to survive the pressure, they become useless to themselves and their families till death. By the provision of the Constitution, the judiciary’s budget ought not be subjected to executive moderation as it is the practice in this clime. The sad commentary, as happened recently, is that the budget size of the judiciary continues to dwindle, in fact, much lower than that of Agencies of the Executive while the judiciary exists as an arm of government.

Notwithstanding all the above infractions, judges are unable to ventilate their discomfort in these regards, as they are to be seen and not heard. Thus, the responsibility to voice out these concerns lies primarily on the Bar. This duty has not been admirably discharged by the Bar. The public at large and other stakeholders also share in the same duty. A new executive of the Bar is about to be sworn in, this must be a priority on its agenda. The society itself that demands a credible judiciary must equally lend its voice; another instance where the people need to “on their mic” in saving the judges and the society at large.

Editors Note; Written By Muiz Banire, SAN and originally published in Sunnewsonline