Abstract The independence and the accountability of Judges are usually seen to be antithetical to each other, creating perceived tension between them. However, States have adopted different measures in striking a balance between these two concepts. This work utilises different primary, secondary and tertiary sources in discussing some of the ways States have attempted to strike the appropriate balance between the two concepts. It concludes that if the aims of employing both concepts are rightly placed, both concepts will not be perceived as antithetical but complementary to each other. It thus, recommends that States should ensure they adopt only measures that promote the aim of the independence and accountability of judges, which is, summarily, enhancing public respect for the judiciary and upholding the confidence of the public in the judicial system. Keywords: Judicial Independence, Judicial Accountability, Striking a balance. Introduction The judicial system in a country is central to the protection of human rights and freedom.[1] Courts play a major role in ensuring that perpetrators of human rights violations are brought to justice and that victims obtain effective remedies and protection.[2] There is, therefore, no doubt that judicial independence and accountability are vital for enhancing the role of the judiciary in advancing the rule of law, effective human enforcement, and good governance.[3] It is only through the independence and accountability of the judiciary that a State ensures that the principles of fairness and equality are observed, nevertheless, both have been viewed as being in tension with each other.[4] This tension originates from the view that accountability seriously undermines the integrity of the judiciary as a key institution of the state.[5] The assumption is that any effort to strengthen judicial independence makes it difficult to hold judges accountable, and that accountability initiative undermines judicial independence.[6] However, notwithstanding the supposed tension, the accountability of judges serves as a necessary tool to check the abusive tendencies of an absolute independence. There is the need, therefore, to strike a balance between these two concepts, which have attracted the attention of many analysts.[7] Section 1: Independence and Accountability of Judges: Background and Definitions 1.1: The Independence of Judges Everyone is entitled to a fair trial by a competent, independent and impartial tribunal, established by law.[8] This right is said to be ‘an absolute right that may suffer no exception’.9 States are to enshrine and guarantee this right within the body of their Constitution and ensure that it is respected and observed.10 The independence of judges refers to the individual judge as well as to the judiciary as a whole, and it applies to all judicial proceedings.11  The independence of judges as a principle derives from the basic principles of the rule of law, and in particular the principle of separation of power. The principle of separation of power connotes that the three organs of government are separate and independent organs; having exclusive and specific duties, and none of the organs is permitted to interfere in the other’s affairs.12 The independence of judges has been described in different ways. It may be objective or structural independence and personal or subjective independence.13 Objective independence entails freedom from external pressures. It is not personal, mostly not within the judge’s control, and objectively observable.14  Subjective independence, on the other hand, is freedom from the judge’s subjective motivations, biases, propensities, prejudices, and actions.15 The independence of judges may be external or internal independence.16 External                                                                                                                                                               Jurists, International principles on the Independence and accountability of judges, lawyers and Prosecutors Practitioners’ Guide No 1 (2009) the First Protocol to the Geneva Convention, art 75.

  • Human Rights Committee, Communication No 263/1987, Case of Miguel Gonzalez del Rio v Peru, para 5.2
  • United Nations (UN) Basic Principles on the independence of the judiciary 1985 (UNBPIJ).
  • Case 110/1995 Findlay v. The United Kingdom [1997] ECR 335-37; Papageorgiou v Greece [1997] ECR.
  • Inter-American Democratic Charter 2001, arts 3 and 4.
  • David Pimentel, ‘Reframing the Independence v Accountability Debate: Defining Judicial Structure in light of Judges’ Courage and integrity’ (2009) Cleveland State Law Review 10.
  • Ibid, 13.
  • ENCJ Report (n 8) 12.
independence is freedom from those pressures exerted on individual judges in respect to decision making directly or indirectly, by the executive, parliament, media etc.[9] Internal independence is being free from pressures within the judicial system, example peer pressure. Although peer pressure has the benefit of enhancing and upholding standards, it has potential to impact on a judge’s independence.[10] 1.1.1: Why Judicial Independence is Important ‘Judicial independence is a bulwark of the rule of law’,[11] and for the rule of law to be properly enforced, the judges must be free to act independently in rendering judicial decisions.[12] Judges are charged with the ultimate decision over rights and obligations of citizens, and without their independence, it is difficult for them to discharge this duty effectively.[13] The independence of judges ensures judges decide matters before it in accordance with its impartial assessment of the facts[14] and its understanding of the law without improper influences, direct or indirect, from any source.[15] Such sources may include the executive and legislative branches of the government and, from other members of the judiciary.[16] The independence of judges further ensures the liberties guaranteed for citizens in nation’s Constitution and promotes human rights.[17] It is the key to effective performance of judicial functions[18] and is ‘indissociable from the very concept of justice’.[19] Regrettably though, the independence of the judiciary has been under threat in some quarters, with judges being subjected to several pressures, which come in form of inducements, threats, and persecutions.[20] 1.1.2: Mechanism for ensuring the independence of a judge There are several indicators which aid in assessing if the appropriate environment for judicial independence exists. Ananian- Welsh and Williams have identified four indicators by reference to which the requisite environment can be assessed.[21] These indicators are: –
  • Appointment, tenure, and remuneration: These indicators are key to judicial independence,[22] and crucial in creating the appropriate environment for the attainment of the independence of the judges. For judicial appointments, methods of appointing judges must not risk erosion of, whether actual or perceived independence of the judiciary.[23] Appointments and promotions of judges should be exercised in consultation with the judiciary, based on merit[24] and objective criteria.[25] Similarly, measures to ensure their financial security and tenure[26]are also very important preconditions for judicial independence. Notwithstanding the need for the security of their tenure however,[27] a judge may be removed based on the inability to perform judicial duties[28] or for a serious ground of misconduct[29] or for other conducts inconsistent with judicial office.[30] It has been argued that the judiciary should be allowed to manage its own budget,[31] however, there are dangers in allowing the judiciary to handle money directly. The public perception of institutions, which handle money, is not usually favourable and any mistakes made in the process are likely to affect the credibility of the judiciary.[32]
  • Operational independence: This involves the daily operational processes and procedures of courts, and these activities require freedom from executive interferences.[33] The executive should support the effective and independent functioning of the courts. They should not interfere in the assignment of judges,42 court lists or the sitting of courts. [34]It has also been recommended that the judicial structures and administration be separated from public service to ensure the independence of the judiciary.[35] This is because, as far as the judiciary continues to depend on the administrative resources provided by other arms of government, their independence will be curtailed.[36]
  • Decisional independence: This indicator concerns the independence with which a judge exercises decisions. It requires that the decisions of judges should not be subject to revision outside the appeal procedure established by law.[37] Decisional independence is ensured in an environment where conflation of powers is either avoided or where the mechanism to ensure decisional independence is in place. This mechanism is found in the doctrine of separation of powers. Although the doctrine of separation of power is not an indispensable tool in ensuring the independence of the judiciary, it can play a vital role in protecting and strengthening the independence of the judiciary.[38]Most especially, if the doctrine is enshrined in the Constitution, it can provide an effective mechanism for securing decisional independence, which in turn guarantees judicial independence. Decisional independence, also requires that judges be independent of their judicial colleagues in making judicial decisions.
  • Personal independence: This requires that a judge may accept extrajudicial roles but should not accept extra- judicial roles that would likely interfere with the exercise of his or judicial powers.[39] It further requires that judicial officers are neither punished or rewarded for the performance of their judicial functions.[40] They are generally protected from liability for monetary damages in civil suits for improper acts or omissions in the exercise of their judicial functions.[41] In principle, they are also immune from criminal proceedings in respect to the content of their judgements and orders,[42] except for gross human rights violations and judicial corruptions,[43] although, subject to appropriate thresholds and procedural protections.[44]
1.2: The Accountability of Judges In a democratic certain, those who exercise public powers are accountable to the community for their actions.[45] One should be accountable for what one is responsible for,[46] and such considerable powers ought not to be left unaccountable as it impacts on all aspects of societal interactions.[47] The concept of accountability refers to a person or a class of persons being answerable to some clearly identified individual or body for his or her actions.56 The judiciary as an institution should be accountable to the society it serves.[48][49] However, this ‘obligation that the judiciary owes to the society is limited to applying the law in an independent and impartial way, with integrity and free of corruption’.[50] The judiciary is not bound to adopt only those decisions with the majority of the society’s opinion, nor individual judges risk removal simply because of unpopular decisions.[51] Judicial accountability also extends to the other arms of government, not as subordinate to them[52] but in the same sense it is to the society.[53] Judicial accountability has also been described in different ways. It may be legal or public and informal accountability.[54] Legal and public accountability involves the conduct of court cases in public, the requirement to make decisions and give reasons for the decision, and subject the decisions to appellate procedures.[55] Informal accountability is the obligation a judge has to discharge judicial functions in the face of fellow judges and observant legal practitioners whose confidence is essential to maintain.[56] Judicial accountability has also been described in the form of explanatory accountability, as against sacrificial accountability.65 Explanatory accountability involves scrutinising the activities of an institution by another institution,[57][58] and this increases transparency in the exercise of public powers.[59] Sacrificial accountability, on the other hand, presupposes that one institution is subject to the control of another institution.[60] Finally, judicial accountability has been described as consisting of objective and subjective accountability.[61] Objective or structural accountability is where the public call for more accountability of judges because of perceived abuse of judicial powers.[62] Subjective or personal accountability looks at a judge’s internal moral compass; the desire to do what is right, and not out of fear of being detected and punished. It comes from within, not objectively observable, and difficult to observe.[63] 1.2.1: Why Judicial Accountability is Important Judges in every jurisdiction, owe a duty to themselves, to the judiciary, and to the public at large, to insist of themselves and other judges of the highest ethics which give no hint of unfair consideration and improper dealing of the rights and responsibilities of the parties who come before them.[64] The control of judicial conduct is founded in the desire to secure public interest and confidence in the judiciary.73 To the extent that judges do not police themselves, they risk discipline imposed from without,[65][66] and as earlier stated, judicial independence has the potential to act as a shield behind which judges may conceal unethical behaviour.[67] It may be open to abuse if it is made completely autonomous. It is, therefore, imperative that judges are subjected to evaluation, guidance, and discipline to ensure their accountability. Section 2: Striking the Proper Balance between the Independence of Judges and their Accountability As stated in the introduction, there is a perceived tension between the independence of judges and their accountability. A typical analysis of this perceived tension is, if the mechanism to ensure the independence of judges are put in place, without fear of retribution, there is the likelihood of freeing them to disregard the law and render corrupt decisions.[68] At the same time, disciplinary measures designed to punish them for misconduct, invariably, may subject them to disciplinary authority, thereby limiting their independence.[69] This tension may seem true for objective or structural accountability because any disciplinary regime will always pose a threat to this type of independence.[70] Such exercise of disciplinary measures may be misused at some point to exert improper influence on judges. At the same time, any effort strengthening structural independence to insulate the judges from their critics tends to weaken any system for enforcing their accountability. However, the tension tends to evaporate where subjective independence and subjective accountability is examined.[71] It is argued that there is really nothing contradictory between a judge’s personal or subjective independence (his refusal to be influenced by external pressures) and his personal or subjective accountability (his commitment to adhere to law).[72] A judge may act independently in the face of external pressures because the judge has a strong ethical commitment. Conversely, the judge may decide to preserve and maintain his personal accountability by exercising the subjective independence to resist external pressures.[73] Whichever is the case, the ENCJ Report advices that both objective and subjective independence and accountability of judges are important, and both should be taken into consideration.[74] Striking a balance entails accommodating the accountability of the judges without compromising their independence;[75] to establish an efficient system,[76] which enhances public respect for the judiciary and upholds the confidence of the public in the judicial system.[77]The independence of the judges is linked to their accountability, and a judiciary that refuses to be accountable to the society, but claims independence, will not gain the confidence of the society,86 and will not be granted the independence it strives at.[78] According to the Commonwealth Latimer House Principles, the principles of judicial independence and accountability ‘underpin public confidence in the judicial system and the importance of the judiciary as one of the three pillars upon which a responsible government relies’.[79] This statement aptly represents the reason for employing measures aimed at striking the appropriate balance between the independence of judges and their accountability. Flowing from this discussion, measures which are employed, and which tend to strike the appropriate balance between the independence of judges and their accountability to foster public confidence shall be examined. These measures are: – (1) Open justice system: Under the International regime, there is an obligation on State to ensure access to a fair and public hearing by a competent, independent, impartial,[80] and an accountable judiciary,[81] in all criminal and civil legal proceedings. Although a judge should be in charge of his or her court, court proceedings should be open to the public, unless the law or public interest dictates.[82] The 1999 Constitution of the Federal Republic of Nigeria (1999 Nigerian Constitution) provides that court proceedings, including the announcement of decisions, shall be in public, and within a reasonable time.[83] However, a judge may exclude the public, but not parties or their legal practitioners in the interest of defence, public safety, public order etc.[84] The principle of open justice aids in the scrutiny and evaluation of judicial decisions, and it is compatible with judicial independence. It ensures that the public, including the media, can report on decisions and actions of judges. Also, it requires judges to deliver timely decisions, give reasons for their decisions, subject such decisions to a system of appeal, and ensure such decisions are accessible to the public.[85] The courts should regularly publish their performance results and provide information on process services and improvements.[86] This reinforces the responsibility of the judges to open their doors and provide the public with information about the works, policies, and procedures of the court, with a view in preserving the confidence of the judiciary.[87] (2)Appointments, discipline and removal of judges: In order to guarantee the independence and accountability of the judiciary, international law requires States to appoint judges based on strict selection criteria, and in a transparent manner.[88] States reserve the discretion to adopt any method of appointment, as there is no international agreement on the method of appointing judges.[89] However, whatever method adopted by States, should be objective and transparent based on integrity and proper qualification.[90] It should be on merit, devoid of any form of gender discrimination.[91] Only persons of integrity and ability with appropriate training or qualifications in law shall be selected.[92] Also, it is recommended that the appointments be carried out by the judiciary, or persons independent of the executive and legislature.[93] The methods adopted by most States in appointing their most superior court judges especially, are similar. In Nigeria, the President of Nigeria appoints the Chief Justice of Nigeria, and all justices of the Supreme Court, on the recommendation of the National Judicial Council (NJC) subject to confirmation by the Senate.[94] In the United States of America (US), all constitutionally recognised judges, are appointed by the President of the US, after receiving recommendations from the department of justice, and with the advice and consent of the Senate.[95] Also, in the United Kingdom (UK), the Lord Chancellor forwards the candidate’s name to the Prime Minister once he is satisfied with the recommendation made by the selection commission. The Prime Minister then forwards the name to Her Majesty, who makes the formal appointment.[96] The above methods of appointment of judges somewhat strike a balance between the independence and accountability of judges because the recommendation by the judicial council or selection commission tends to preserve the independence of judges, while the confirmation or formal appointment by the legislature or the executive respectively holds them accountable. However, it may be rightly argued that the independence of judges may be threatened in a situation where the executive or the legislature refuses to appoint or confirm the recommended candidate. Regrettably, this happened to the present Chief Justice of Nigeria, who was recommended by the NJC, but the President failed to forward his name to the Senate for confirmation.[97] Luckily, the Vice President, who was acting while the President was on sick leave forwarded the name to the Senate, and the present Chief Justice of Nigeria was confirmed.[98] On discipline, suspension, and removal: Generally, judges enjoy security of tenure, which is primarily secured to protect these judges against the powers of the executive. However, they may be removed for serious misconduct (which shall be discussed later), or for other conditions which clearly render them unfit to discharge their duties.[99] The UNBPIJ provides for the discipline, suspension, and removal of Judges,[100]  and recommends that any disciplinary procedures employed should be objectively and fairly administered.[101] A judge facing disciplinary actions should be fully informed of the charges and, also have right to make a full defence. Unless, at the request of the judge, initial examination of the matter should be kept confidential.[102] The UNBPIJ also requires that all disciplinary, suspension and removal proceedings should be determined in accordance with established principles of judicial conduct,[103] and all such decisions resulting from any of these proceedings should be subject to an independent review.[104] In Nigeria, the President on the recommendation of the NJC can remove a Federal judicial officer.[105] Likewise, the Governor of a state, on the recommendation of the NJC can remove a State judicial officer.[106] However, the Constitution also stipulates the conditions for which the appointment of a judicial officer may be terminated.[107] This is to ensure no judicial officer is unduly sacked for performing the functions of his office and the appropriate balance between their independence and accountability is achieved.
  • Remuneration of judges: The international and regional treaties do not expressly deal with the remuneration of judges, however, UNBPIJ recommends that States must ensure that adequate remuneration, the condition of service and pension of judges are adequately secured by law.[108] The question of adequate remuneration is important as it helps to attract qualified persons, and may likely help judges yield less to judicial corruption or other undue influences. In some States, the salary of judges is protected against decreases, but the pay increase may depend on the executive and the legislature.[109] However, where the legislature or executive controls the budget of the judiciary, this may pose a risk to judicial independence. A Council of judges or the NJC should have the right to propose a budget and to address Parliament if its budget is amended or rejected.[110] The Council should be able to allocate funds to individual courts once a budget has been agreed, subject to the overall supervision of the Council.[111] Some degree of involvement of other organs of government in the remuneration of judges may be necessary for maintaining a balance between their independence and
accountability. In Nigeria for instance, while the allowances, privileges, and salaries of the judges are to be decided by law enacted by the Parliament, the conditions of service of the judges cannot be modified to the disadvantage of the judges.[112] Also, the expenses of the Supreme Court and the salaries of the judges are charged to the Consolidated Fund of the Federation or State, respectively,[113] and any amount to the credit of the judiciary should be paid directly to the NJC for disbursement to the heads of different courts.[114] However, the same Constitution provides that no money shall be withdrawn from the Consolidated Revenue Fund or any other public fund of the Federation except in the manner prescribed by the National Assembly.[115] Any concern as to situations where the National Assembly may refuse to prescribe a manner may not be necessary because section 81(3) of the same Nigerian Constitution, passed by the same National Assembly prescribes that such fund be paid to the NJC. Thus, any other Act of the same National Assembly contrary to the provisions of the Constitution, shall to the extent of the inconsistency be void.[116]
  • Evaluation, training and ethical issues: Although judges head and dictate how they run their individual courts, they should be assessed individually, and based on overall performance.[117] This measure helps to strike a balance between their independence and accountability.[118] In Nigeria, the NJC pursuant to the wider powers of the Council as guaranteed under paragraph 21 of the Part 1 of the Third
Schedule to the 1999 Nigerian Constitution, set up a Performance Evaluation Committee of Judicial Officers of Superior Courts of records to evaluate, assess, monitor and supervise the performance and general conduct of judicial officers in the administration of justice and discharge of their judicial function.[119] The Committee presently comprises of nine members, seven members of the judiciary with two persons from backgrounds other than law.129 The Committee, have so far served as a guide and watchdog towards ensuring that judicial officers are not [120]idle, lazy, reckless, indolent, or incompetent.[121]  For instance, every judicial officer of superior courts is expected to file a return of cases he or she has handled for each quarter to the NJC.[122] Each quarter comprises of 3 months, so there are 4 quarters in a legal year.[123] The report on the return of cases must account for all pending cases, judgments, orders, and rulings delivered within the relevant quarter. On receipt of the return, they are analysed, and feedbacks sent to each judge.[124] On training and ethical issues: Judges are also expected to conduct themselves in an ethical manner, in their judicial and personal lives, and apply the law independently, honestly and with integrity.[125] They are expected to live up to a certain standard of conduct.[126] Judicial officers in each jurisdiction should respectively develop and review periodically guidelines for ethical conduct.[127] Many jurisdictions have developed guides to judicial conduct, which are designed to uphold public confidence in justice administration, enhance the respect of the public for the judiciary, and protect the reputation of the individual judges, as well as the judiciary.137  In addition, regular training and education under the control of the judiciary should be organised, systematic and continuous, as this ensures accountability to the competence of judges.138
  • Judicial violations: In ensuring their independence, also, judges enjoy immunity from civil suits for monetary damages for improper acts and omissions in the exercise of their judicial functions.139 However, they are accountable for any act of serious misconduct or violations.140 Under international law and standards, States are required to ensure the availability of effective remedies for violations of human rights and reparations for harm suffered.141 States cannot rely on the fact that the acts of violations were carried out by a judicial officer, to relieve the State of this obligation, as acts of State officers constitute acts of that State.142 The different forms of judicial violations and measures recommended to address these violations in order to ensure the proper balance between the independence and accountability of judges are:
                                                        
  • See Guide to Judicial Conduct published for the Council of Chief Justices of Australia by the Australian Institute of Judicial Administration Incorporated (AIJA Guide to Judicial Conduct), 2 and 3.
  • Commonwealth Latimer Principles 11(3), Training, 18.
  • UNPBIJ, para 16.
  • International Commission of Jurists, Judicial Accountability, Practitioner’s Guide No. 13
(2016) (International Commission of Jurists No 13) <http://www.icj.org/wp content/uploads/2016/06/UniversalPG13JudicialAccountabilityPublicationsReportsPractitionersGuide2016ENG.pdf> accessed 23 March 2017
  • ICCPR, art 2(3); UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (“UNBP Remedy”), General Assembly resolution 60/147 (2005); UDHR, art 8.
  • Dissanayake v. Sri Lanka, UN Doc CCPR/C/93/D/1373/2005 (2008), para. 8.2; Articles on Responsibility of States for Internationally Wrongful Acts; UN General Assembly resolution 56/83 (2001), art 4 and 7.
(a)Violations of human rights and international humanitarian law.[128] States are to ensure that individual perpetrators of such violations are brought to justice,[129] and victims of such judicial misconduct granted access to the outcome of the criminal prosecution of the perpetrators.[130] Such violations include enforcement of domestic laws that are inconsistent with international human rights, arbitrary interference with private rights, prolonged arbitrary detention, arbitrary sentencing, imprisonments, and executions etc. Also, included are all violations consisting crimes against international law and humanitarian law in situations of armed conflict.[131] (b) Judicial corruption. This erodes the principles of integrity, independence, and impartiality of the judiciary.[132] Judicial corruption ‘occurs whenever a judge or court officer seeks or receives a benefit of any kind or promise of a benefit of any kind in respect of an exercise of power.’[133]  The UN Convention against Corruption (UNCAC) does not define what corruption or integrity means but requires States to criminalise specific acts that take the form of corruption, like bribery, embezzlement, misappropriation or diversions by public officers.[134] Article 11(1) of the UNCAC also enjoins each State Party, in accordance with the fundamental principles of its legal system and without prejudice to judicial independence, to take measures to strengthen integrity and to prevent opportunities for corruption among members of the judiciary.[135] Such measures may include rules with respect to the conduct of members of the judiciary.[136] The UN Office on Drugs and Crime (UNODC) also published an implementation guide and evaluation framework for article 11, and this includes practical tools to assist the judiciary, other government officials, academics, and the civil society to evaluate State implementation of article 11[137] (c)Other forms of judicial misconduct, and ordinary crimes. Judicial misconduct may manifest in activities unrelated to their judicial functions where judicial integrity is required.[138] Persons affected by any judicial misconduct should have the medium where they file their complaints, and these must be processed fairly and expeditiously.[139] An independent and impartial body set up usually takes the decision whether to open disciplinary proceedings against such judicial misconduct or not.[140] Where the judicial misconduct complained of is established, the State should ensure the victim is provided with adequate and prompt reparation proportionate to the gravity of the violations complained of,[141] and such reparation may come in form of restitution, rehabilitation, compensation, satisfaction etc.[142] (6) Accountability bodies: The activities of the following bodies help in striking a balance between the independence of judges and their accountability. They are: (a)The courts through judicial review. Although judges should make decisions independent of undue pressures, the principle of stare decisis (precedents of law) has a way of holding judges accountable for their decisions.[143]Again such decision may be overturned by a higher court, or if it is the highest court, may reverse its decision.[144] (b)Judicial Councils: Like the courts, these councils play a role in ensuring judicial accountability, while maintaining their independence.[145] Although, it has been argued strenuously that judicial councils only ensure the accountability of judges below the Supreme court, having nobody to hold the Supreme court judges to account.[146] Nevertheless, most State’s judicial councils carry out the assessment, recommendations for appointments and, removal of judges, while advocating for judicial independence. (c)Parliamentary approvals: The requirement of Parliamentary approval for removal of judges was originally adopted in some country to limit unchecked executive discretion to dismiss judges.[147] Such Parliamentary actions should be appropriate and in line with the purpose for the independence and accountability of judges.[148] Also, parliamentary approvals play key roles because they have the powers to make laws that ensure the independence of judges and their accountability. (d)Civil societies/ Media: The civil society, media, and other commentators play an invaluable role in ensuring judicial accountability while advocating for judicial independence.[149] Judges may be subjected to personal criticism within permissible limit,[150] or subject to necessary restrictions.[151] Legitimate public criticism of judicial performance should also be allowed as a means of ensuring accountability.[152] (e)Human Rights Institutions and judicial associations: The Independent Human Rights Institutions, also play a role in judicial accountability.[153] Although, they are administrative bodies and should not sit in review or appeal of the courts, but they can monitor and report their views on the administration of justice in human right cases.[154] Judges are free to join professional associations,[155] and these professional associations contribute to judicial accountability efforts. They especially help in addressing judicial ethics and integrity issues.[156] Conclusion Public confidence in judges, and indeed in the judicial system now requires more than just the independence of the judiciary. A form of judicial accountability is required to maintain that confidence. Although the discussions above have shown that an unchecked accountability can significantly curtail their independence, both concepts complement each other and are very important for the proper functioning of the judiciary. Thus, the perceived tension between the two will gradually diminish if the aim of employing both, which is, to enhance public respect for the judiciary and to uphold the confidence of the public in the judicial system is rightly placed. Mrs. Chioma Angela Okeke is a lawyer with over 13 years legal experience. She holds a B.L and MBA. She also has an LLM in Criminal Law and Criminal Justice from the University of Sussex, UK. She is a Chartered Secretary/Administrator and a Chartered Mediator/Conciliator. [1] International Commission of Jurist, International Principles on the Independence and Accountability of Judges, Lawyers, and Prosecutors: Practitioners Guide No. 1 (2nd edn Geneva, 2007) (International Commission of Jurist 2007) 3. [2] ibid. [3] Laura-Stella Enonchong, ‘Judicial Independence and Accountability in Cameroon: Balancing a Tenuous Relationship’ (2012) 5 African Journal of Legal Studies 313. [4] Judiciary of England and Wales, ‘The Accountability of the Judiciary’<https://www  .judiciary. gov.uk/wp-content/uploads/JCO/Documents/Consultations/accountability.pdf> accessed 26 March 2017. [5] Hakeem O. Yusuf, ‘Calling the Judiciary to Account for the Past: Transitional Justice and Judicial Accountability in Nigeria’ (2008) 30 Law & Policy 194. [6] Miroslava Scholten, ‘Independence Vs. Accountability: Proving the Negative Correlation’ (2014) Maastricht Journal of European and Comparative Law 197; Giandomenico Majone, ‘Independence vs. Accountability? Non-Majoritarian Institutions and Democratic Government in Europe’ (1994) EUI Working Papers in Political and Social Sciences 94/3 26. [7] ibid. [8] Universal Declaration of Human Rights (UDHR), art 10; International Covenant on Civil and Political rights (ICCPR), art 14(1); Beijing Statement of Principles of the Independence of the Judiciary(Beijing Statement), art 2; European Convention on Human Rights (ECHR), 1950, art 6; American Convention on Human Rights, 1969, art 8; African Charter on Human and Peoples’ Rights, 1981, art 7(1) and 26; Council of Europe Recommendation No. R (94) 12 of the Committee of Ministers to Member States on the independence, efficiency and role of judges; Judicial Integrity Group, Measures for the Effective Implementation of the Bangalore Principles of Judicial Conduct (Bangalore Implementation Measures) 2002; International Commission of [9] ibid. [10] ibid. [11] Samuel Bufford, Defining the Rule of Law’ (2007) 46 Judges’ Journal 16. [12] David Pimentel, (n 14) 5. [13] UNBPIJ (n 11). [14] UNBPIJ (n 11), principle 2; Beijing Statement (n 9), art 3(a). [15] Beijing Statement (n 9), art 3(a); Basic Principles on Judicial Independence, Preamble, U.N. Human Rights Commission Res.’s 40/32 (Nov. 29, 1985) and 40/146 (Dec. 13, 1985) <www.ohchr.org/EN/Professional interest/Pages/ independencejudiciary. aspx> accessed 12 April 2017. [16] Ringeisen v Austria, ECtHR judgement of 16 July 1971, Series A13, para 95; Philip C. Aka, ‘Judicial Independence under Nigeria’s Fourth Republic: Problems and Prospects’ (2014) 45 (1) California Western International Law Journal 9; James Zagel and Adam Winkler, ‘The independence of Judges Federal Judicial Independence Symposium’ (1995) 46 Mercer Law. Review 796. [17] Philip Aka ibid 4. [18] Beijing Statement (n 9), art 4. [19] Paul Mahoney, ‘The International Judiciary- Independence and accountability’ (2008) 7(3) Law and Practice of International Courts and Tribunals 316. [20] The International commission of Jurist, Attacks on Justice: A Global report on the independence of Judges of Judges and Lawyers (11th edn Geneva, 2002)1. [21] Ananian- Welsh and G Williams, ‘Judicial Independence from the Executive: A First Principles Review of the Australian Cases’ 40(3) Monash university Law review 593. [22] ibid 958. [23] ibid. [24] Beijing Statement (n 9), art 11-17; the United Kingdom Constitutional Reform Act 2005, sec 25, para 27. [25] ibid. [26] Bangalore Implementation Measures (n 9), art 13.2. [27] Beijing Statement (n 9), art 18. [28] Commonwealth Latimer Principles, art VI (1) (a). [29] Human Rights Committee, General Comment No. 32, Art 14, para 20. [30] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (African Fair Trial Principles) art A 4 (p). [31] Philip C. Aka (n 25) 10. [32] ibid. [33] ibid. [34] Beijing Statement (n 9), art 35 -37. [35] J Lowndes, ‘The Australian magistracy: from justices of the Peace to judge and beyond – part 11’ (2000) 74 Australian Law review 599. [36] ibid 599. [37] Case 7984/06 Saghatelyan v Armenia [2015] ECHR, para 45-6; Case 97/1996 Papageorgiou v. Greece [1997] 716. [38] E Campbell, ‘Constitutional Protection of State courts and judge, (1997) 23(2) Monash university law Review 397. [39] Ananian- Welsh and G Williams (n 14) 601. [40] ibid. [41] Stump v. Sparkman 435 U.S. 349 (1978), [42] Report on guarantees of judicial independence, UN Doc A/HRC/11/41 (2009), paras 66, 98. [43] Bangalore Implementation Measures (n 9), article 9.1. [44] UN Special Rapporteur on the independence of judges & lawyers (UNSRIJL), Report on Judicial Accountability, UN Doc A/HRC/26/32 (2014), paras 52, 91; UNCAC, art 30(2). [45] Hakeem O. Yusuf (n 5) 196; David Held, ‘Democratic Accountability and Political Effectiveness from a Cosmopolitan Perspective’ (2004) 39 Government and Opposition 364–92. [46] Judiciary of England and Wales, ‘The Accountability of the Judiciary’ <https://www.judiciary.gov.uk/wpcontent/uploads/JCO/Documents/Consultations/ accountability .pdf> accessed 26 March 2017. [47] ibid. [48] See generally the Final Report of the Law Reform Commission of Western Australia into Complaints against the Judiciary (2013). [49] Consultative Council of European Judges (CCJE), Opinion No. 18, Position of the judiciary and its relation to the other powers of the state in a modern democracy (2015) 4 para. 21. [50] International Commission of Jurists (n 1) 15. [51] ibid. [52] CCJE (n 59). [53] (n 60). [54] Justice Nicholson, ‘Judicial Independence and Accountability’: Can they Co-exist?’ (1993) 67 Australian Law Journal 413. [55] ibid. [56] ibid. [57] J Harrison, ‘Judging the Judges: The new scheme for Judicial Conduct and discipline in Scotland’ (2009) 13(3) Edinburg Law Review 429-430. [58] ibid. [59] ibid. [60] ibid. [61] David Pimentel (n 14) 16. [62] ibid. [63] David Pimentel (n 14) 17. [64] Terrence Harders, ‘Striking a balance: Administrative Law independence and accountability’ (1999) 19(1) Journal of the national association of administrative Law Judiciary 8. [65] Miller, Public Confidence in the Judiciary: Some Notes and Reflections, (1970) 35 Law & Contemporary Problems 69. [66] ibid. [67] International Commission of Jurist (n 1), 55. [68] David Pimentel (n 14) 18. [69] ibid. [70] ibid. [71] Ibid 18. [72] Ibid 19. [73] ibid. [74] ENCJ Report (n 8) 50. [75] ibid 91. [76] Edwin Felter, ‘Maintaining the Balance between Judicial Independence and Judicial Accountability in Administrative Law’ (1997) 17 Journal of the National Association of Administrative Law Judges 91. [77] Commonwealth Latimer Principles V11, 12. 86 Susan Kenny, ‘Maintaining Public Confidence in the Judiciary: A Precarious Equilibrium’ (1999) 25 Monash University Law Review 214. [78] ENCJ Report (n 8) 50. [79] ibid. [80] ICCPR, art 14; UDHR, art 10; Geneva Conventions 1949, art 3(1)(d); Protocol I to the Geneva Conventions 1977, art 75; Protocol II to the Geneva Conventions 1977, art 6(2); African Charter on Human and Peoples, Rights, art 7(1); American Convention on Human Rights, art 8(1); European Convention on Human Rights, art 6(1). [81] Human Rights Council, resolution 29/6 (2015) on Independence and impartiality of the judiciary, jurors and assessors, and the independence of lawyers, Preamble. See also resolution 19/36 (2012) on Human Rights, Democracy and the Rule of Law. [82] Commonwealth Latimer House Principles and Guidelines IV, 11. [83] The 1999 Nigerian Constitution, sec 36 (1), (3) and (4). [84] The 1999 Nigerian Constitution, sec 36 (4)(a). [85] ibid. [86] International Framework for Court excellence (Framework for Court excellence), 3.1.2. [87] Ibid 3.1.7. [88] International Commission of Jurist, (n 1) 41. [89] ibid. [90] UNBPIJ (n 11), principle 10; Universal Charter of the Judge (UCJ), art 9. [91] Commonwealth Latimer House, Principle II, 1, and V (a), 12. [92] UNBPIJ (n 11), principle 10. [93] European charter on the Statute of Judges, para 1.3; UCJ, art 9. [94] ibid sec 238 (1), 250 (1), 256 (1), 261 (1) and 266 (1). [95] US Constitution, sec 2, art II and III. [96] UK Constitutional Reform Act 2005, as amended by the Crime and Courts Act 2013, ss 25 to 31 and Schedule 8. [97] The Editorial Board, ‘Chief Justice of Nigeria: Matters Arising’ The Guardian (Nigeria, 5 February 2017) <https://guardian.ng/opinion/chiefjusticeofnigeriamattersarising/> accessed 12 May 2017. [98] ibid. [99] Commonwealth Latimer House Principles (n 65) [100] UNBPIJ (n 11), principles 17 – 20. [101] UNBPIJ (n 11), principle 17. [102] UNBPIJ (n 11), principle 17. [103] ibid, para 18. [104] ibid para 20. [105] The 1999 Nigerian Constitution, sec 292. [106] ibid. [107] ibid. [108] UNBPIJ (n 11), principle 11. [109] The 1999 Nigerian Constitution, sec 84 (3). [110] ENCJ Report (n 8) 11. [111] ibid. [112] The 1999 Nigerian Constitution, sec 84 (3). [113] ibid, sec 81 (1) and 84 (6) (7). [114] ibid, sec 81 (3). [115] ibid, sec 80 (4). [116] ibid, sec 1 (3). [117] Robert Thompson, ‘Judicial Independence, Judicial Accountability, Judicial Elections, and the California Supreme Court: Defining the Terms of the Debate’ (1985-1986) 59 Southern California Review 809. [118] ibid. [119] See paper delivered by Honourable Justice Babatunde Adejumo (President of National Judicial Council) on ‘Enhancing the Productivity of Judicial Officers: Performance Management and Evaluation’ at the Refresher Course for Judicial Officers on Current trends in Law and administration of Justice (National Judicial Council 2016) 4. [120] ibid. See generally UNSRIJL, Report on judicial corruption, and combatting corruption through the judicial system, UN Doc A/67/305 (13 August 2012), paras 88, 113(k); Report on judicial accountability, paras 93, 126 [121] ibid. [122] ibid, 6 and 12. [123] ibid. [124] ibid. [125] ibid. [126] See generally the Judiciary of Wales Guide to Judicial Conduct. [127] Commonwealth Latimer Principles V1, 12. [128] International Commission of Jurists No 13 (n 132) 8. [129] Vienna Convention on the Law of Treaties, 1155 UNTS 331, art 27. [130] UN Basic Principles and Guidelines on the Right to a Remedy and Reparation, art 22(b); UN Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (UN Impunity Principles), Principles 2-4; El-Masri v. the former Yugoslav Republic of Macedonia, App. No. 39630/09 (13 December 2012), paras 191- 194. [131] Geneva Conventions 1949 (III) relative to the treatment of Prisoners of War, art 130. [132] UN Special Rapporteur on the independence of judges and lawyers Report on judicial corruption and combatting corruption through the judicial system, UN Doc A/67/305 (13 August 2012), para. 109. [133] ICJ’s Policy Framework for Preventing and Eliminating Corruption and Ensuring the Impartiality of the Judicial System. [134] UNCAC, art 36; SRIJL, Report on Mission to Guatemala, UN Doc E/CN.4/2000/61/Add.1 (2000), para 169(f); Judicial accountability Practitioner’s Guideline 47; Joseph Plescia, “Judicial Accountability and Immunity in Roman Law” (2001) 45 American Journal of Legal History 51. [135] UNACA, art 36; SRIJL, Report on Mission to Guatemala, UN Doc E/CN.4/2000/61/Add.1 (2000), para 169(f). [136] Judicial accountability Practitioner’s Guideline 47. [137] UNODC, the United Nations Convention against Corruption: Implementation Guide and Evaluative Framework for Article 11 (2015) (UNODC Guide). [138] Bangalore Implementation Measures (n 9), para 9.1. [139] African Fair Trial Principles, article A.4(r) [140] Bangalore Implementation Measures (n 9), paras 15.2 and 15.3. [141] Human Rights Committee, General Comment No. 31 paras 15 and 18. [142] ibid. [143] James Zagel and Adam Winkler, ‘The independence of Judges Federal Judicial Independence Symposium’ (1995) 46 Mercer Law. Review 796. 795-834 [144] Bangalore Implementation Measures (n 9), para. 9.3; CCJE (n 59), 4, paras 23 and 37; Magna Carta of Judges, art 21. [145] Section 153 of the 1999 Nigerian Constitution provides for the establishment of the National Judicial Council. [146] Joseph Ottteh, ‘Enugu Chief Judge Appointment Saga: How the NJC Shot Itself in the Foot’ (2005) 3 Judicial Observatory Journal. <www.accesstojustice-ng.org/journals.php> accessed 27 March 2017. [147] Jan Smit, The Appointment, Tenure, and Removal of Judges under Commonwealth Principles: A Compendium and Analysis of Best Practice (Report of Research undertaken by Bingham Centre for the Rule of Law) (“Commonwealth Study”) (Commonwealth Secretariat, 2015) 105. [148] Oleksandr Volvov v. Ukraine, App. No. 21722/11 (ECtHR, 9 January 2013), para. 122; Bangalore Implementation Measures (n 9), art 16.2; Commonwealth Study 105-111; Judicial accountability Practitioner’s Guideline 45. [149] UNSRIJL, Report on judicial accountability, paras 55, 73, 89. [150] Morice v. France, App. No. 29369/10 (ECtHR Grand Chamber, 23 April 2015), para. 131. [151] European Convention on Human Rights, art 10. [152] Commonwealth Latimer Principles V1 (1) 20-21; [153] Judicial accountability Practitioner’s Guideline 53. [154] UN Office of the High Commissioner for Human Rights, ‘National Human Rights Institutions: History, Principles, Roles and Responsibilities, Professional Training Series No. 4 (Rev. 1)’ (2010), 33 and 127. [155] UNBPIJ (n 11), art 9; Beijing Statement (n 9), art 9. [156] Judicial accountability Practitioner’s Guideline 55.]]>

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