By Innocent Anaba &Abdulwahab Abdulah
How crucial has the judiciary been to our current democratic dispensation and has it lived up to expectation despite challenges faced by the third arm of government? In this edition, Law and Human Rights sought the opinion of lawyers on the matter.
Lawyers who spoke include Chief Anthony Idigbe, SAN; Mr Layi Babatunde, SAN; Mr Ebun-Olu Adegboruwa, rights activist; Mr Israel Mbaebie, political activist; Kola Peters Dopamu and Niyi Idowu, former General Secretary, Ikeja branch of Nigerian Bar Association, NBA.
Chief Idigbe, SAN
“The judiciary is crucial to our democracy in Nigeria, it is crucial everywhere. As you know, democracy is organised division. The idea is that it is felt that when human beings stick together, if there is no division, they can go astray, it can lead to dictatorship, it can lead to arbitrariness, and so, democracy is designed to be entrenched division of powers. Power in executive institution, legislative power in another institution and judicial power in another institution, and then there are checks and balances, which means that one division checks the other division. Balance means that no division within his own sphere can do the whole thing; he will need the other to cooperate through a check system. So, that balances the power. Everybody participates, that is the check.
“So, democracy is division of power, it is basically organised disagreement, inbuilt in the constitutional arrangement in order to throw up the best and prevent arbitrariness and dictatorship etc. So, within that context, you will see that clearly, judiciary has a role to play, to balance the powers and to act as a check on the other arms of government. Now, that is the design of that constitution. The question is: who plays that role? Does the judiciary play that role? Yes, it does. You may complain of how efficiently it plays that role. The jurisprudence in Nigeria shows that over a long period of time, the judiciary has played a role. For instance, at a time when they were trying to make it difficult for people to form political parties, the judiciary opened the space by insisting that limiting the discretion to INEC to determine which political party will or will not be formed, was not right. If that wasn’t done, you would be shocked that it would have been difficult even for the APC to have come up at the time that they came up. So, the creation of APC and the rest was a direct intervention of the judiciary. If you look at what is happening today, you will see again that it was a result of the jurisprudence that came from the Supreme Court that we have many political parties.
But, of course, election petition, there are issues as to whether the judiciary has gone too far in intervening in election cases and whether the judiciary has exceeded its bounds by usurping the power which is vested in the electorate to elect their political leaders by setting decisions on who should become the elected person, even without, may be, situations where they would have sent it back to the electorate to make their decision. So, there are some issues about whether they went too far and even then, it is a role that they have played very well, and you see the importance of that role in the delay of the Act of amending the Electoral Act, because they had to make sure that the election petition was not so delayed that the mandate would have already been exhausted before there is a judicial intervention.
So, there are so many other areas, political and constitutional arena where I think the judiciary has done well and will continue to play that role in our constitutional system. So far, they have done well, and personally, I am proud of what the judiciary has done in protecting our democracy and our constitutional system.
Mr Babatunde, SAN
“Constitutionally, and by democratic tenets, there is obviously no lawful alternative to the assigned role of the judiciary as the arbiter in disputes between individuals and individuals, individuals and the state and the various arms of government. It is therefore, in our best interest to allow the judiciary function unfettered and respect their decisions.
“Any attempt to cow the judiciary and direct their decisions in a predetermined direction, no matter how strongly we feel about the subject matter, is a recipe for disaster if not anarchy. Once you endanger the judiciary, you might as well say bye to constitutional democracy.
“No one, no matter how eminent, including government, can lawfully pick and choose which judgment or decision to obey. May that day never come, otherwise we render the judiciary prostrate, with everyone at risk of the foibles and idiosyncrasies of strong men.”
“Under and by virtue of section 6 (6) (b) of the 1999 Constitution as amended, the Courts are established to adjudicate upon disputes between persons and persons and between governments and governments.
“Sections 4, 5 and 6 of the said Constitution create the three arms of government of the legislature, the executive and the judiciary, all of them to function independently and autonomously. The role of the judiciary is to interprete the law and in that wise, check the manifold excesses of the other arms of government, especially the executive.
“The role of the judiciary is so very crucial in any democracy, as the very tenets of democratic conduct are factored upon the good performance of the judiciary, in the area of the observance of the rule of law and adherence to due process of law.
“The judiciary exists to define the relations and functions of the various institutions of governance, as created by the Constitution. Also, it is the judiciary that regulates human conduct, or else society will get to the stage defined by Thomas Hobbes as brutish and short.
“In his recent lecture at the University of Lagos, the Chief Justice of Nigeria, The Justice Walter Onnoghen, alluded to this, when he stated that all that is required for the smooth running of the affairs of Nigeria is for people to follow due process and abide by the rule of law. In the lecture, the CJN emphasized that if everyone decides to abide by the rule of law, then all forms of impunity and marginalisation will come to an end.
“At the swearing in of the Chief Judge of the Federal High Court recently, the CJN also reiterated this point, when he stated that law should be for both the common and the uncommon man, as everyone should be equal before the law. The law can only be for the common man alone, if the rich, powerful and uncommon man, is allowed to walk away with impunity, all the time.
“Thus, the role of the judiciary cannot be overemphasized at all, as even during military takeover of government, the only institution that is spared is the judiciary, as no junta has ever dared to sack the courts, upon the takeover of government. Thus, the judiciary is the link between one form of government and the other; it is the unbroken chain that is always holding the nation together.
“Without an effective system of justice administration, whether criminal or civil, people will resort to self-help, become desperate and take laws into their hands and then there will be a total breakdown of law and order. In such case, the rule of might, the rule of arbitrariness and self preservation, will prevail.
“Presently and indeed in times past, the judiciary has performed its role of justice administration most creditably. This is not to say that there may not be isolated instances of deviation from the established norm of fairness and equity at times, but generally speaking, a greater number of judges have lived up to their oaths of office and the expectations of society.
“Most importantly, the judiciary in Nigeria has shown great courage and a robust understanding of law and ethics, which in turn has assisted in the enthronement of peace, justice and development.
“Given the challenges of underfunding that the judiciary has faced over the years, the performances of judges, under the conditions in which they operate to dispense justice, is worthy of commendation. However, it is very important that the judiciary will keep up its self purification mechanisms, by which judges are being monitored and sanctioned appropriately. To function better, the judiciary needs more funds and a free hand to operate.”
“In any functional constitutional democracy, the three arms of government i.e the Executive, Legislature and Judiciary must be in place and fully functional. They must also retain their independence while serving as checks and balances to one another. They are not acrimonious opponents but engage in what could be mildly described as “a healthy rivalry.
“The judiciary the world over has been described as the last hope of the common man. It is in this light that their independence has been sacrosanct. It always functions via judiciary interpretations as checks to the other two arms of government. All executive and legislative recklessness and excesses are checked via judicial pronouncements and interpretations.
“Before the advent of the Buhari-led government, the judiciary, especially, the Supreme Court has given landmark and ground-breaking pronouncements. An example of such landmark decision was the judgment that declared Chibuike Amaechi as Rivers State Governor. “Unfortunately, however, under this present government same cannot be said about the judiciary. Lately, the judiciary has been put under the crucibles by the Executive arm vide the harassments, arrests, intimidation and all manner of ill treatments of /judges/justices of our Superior Courts. The Gestapo-style invasions of their residences and the trumped up charges by the DSS, EFCC and others have tended to cow some judges.
“However, in appraising the over all performance of the judiciary vis-à-vis the intimidating posture of the present government, I should tend to conclude that though some judicial officers have been browbeaten to dance to the dictates of the government of the day, aggregately, I score the judiciary 65 per cent. This is in consideration of the very hostile atmosphere in which they have operated within the last three odd years.”
“Let me start the discourse by quoting the English Philosopher, Henry Sidgwick who said: “The importance of the judiciary in political construction is rather profound than prominent. In determining a nation’s rank in political civilisation, no test is more decisive than the degree in which justice, as defined by the law, is actually realised in its judicial administration.
“Also, Lord Bryce wrote: “If the law be dishonestly administered, the salt has lost its flavour, if it be weakly and fitfully enforced, the guarantees of order fail, far it is more by the certainty than by the severity .of punishment that offenders are repressed. If the lamp of justice goes out in darkness, how great is that darkness.
“Again, “There is no better test of the excellence of a government than the efficiency of a judicial system; far nothing more clearly touches the welfare and security of the average citizen than the feeling that he can rely on the certain and prompt administration of justice.”
Laski says: “When we know how a nation-state dispenses justice, we know with exactness the moral character to which it can pretend.” George Washington said: “Administration of justice is the firmest pillar of government. Law exists to bind together the community; it is sovereign and cannot be violated with impunity.” According to Bentham, “The administration of justice by the state must be regarded as a permanent and essential element of civilisation and as a device that admits of no substitute.”
Based on the above principles enunciated by eminent jurists and philosophers, it is obvious that the importance of judiciary in our nascent democracy cannot be over-emphasized. Judiciary is the pivot upon which good governance is established. No democracy can thrive and no society can succeed without a bold, virile and functional judiciary. In effect, judiciary is the bedrock of any form of government. It is expected to be the Guardian of the constitution and this enables stability of the society.
“It must, however, be independent and given a conducive environment to thrive and to perform the duties allocated to it under the constitution.
“Our judiciary to my mind, and given the harsh realities of the adverse environment under which it operates, has fared only fairly well. Though there are undesirable and compromised characters within the judiciary, majority of them have done well enough to withstand the shenanigans of the all powerful and influential executive arm. There’s a big room for improvement though. It is my firm belief that without the judiciary as presently constituted in Nigeria, the society would have imploded with a loud bang.
“The judiciary is suffocating under a regime that though claims to be democratic but repressive and paying lip service to the rule of law. There is need to walk the talk.
“The judiciary ought and should be a check to excesses in the polity and abuse of privileges and powers. But probably the control by the executive is in a way affecting the smooth administration of the justice system.”