By Tunde Olofintila
IN his famous work titled“The Politics”, Aristotle, one of the often cited and quoted Philosophers, emphasized the place and import of the concept of Separation of powers as one of the strong pillars of democracy with emphasis on the independence of the Judiciary. And that was some 300 years before Christ.As it were, the independence of the Judiciary as enshrined in the principle of separation of powers implies that the Judiciary should be independent of the two other Arms of Government i.e. the Executive and the Legislature. Afe Babalola Speaking in a Lecture titled “Relevance of Separation of Powers and its application to Nigeria” at the Annual Law Week of Ado-Ekiti Branch of the NBA over the weekend, Afe Babalola attributed the failure of democratic experience in Nigeria to the failure of the people, the electorate, the Bar and the Bench as well as the government to stand in their positions.
The whole essence of this is to ensure that those who man the Judiciary i.e. the Judges at all levels from the Magistrates to the Justices of the Appellate Courts would be able to carry out their duties without fear or favour, affection or ill-will, to enable them deliver judgments in all matters before them.
But in reality, has this been so in Nigeria? Legal Juggernaut, Aare Afe Babalola, CON, SAN, thinks otherwise.In his usual brutally frank, firm, fair but friendly persona, the frontline legal icon and Educationist has lamented that “unfortunately, Nigeria has not been able to achieve sustainable democracy since her independence, owing to an array of factors that “held her back” and prevented the consolidation of democracy in Nigeria”.
For Afe Babalola, The Nigerian state has been enmeshed in different kinds of authoritarianism right from the colonial era to this present day. Nigerian state is engaged in fierce struggle to break loose from all forms of undemocratic governance”.
Speaking in a Lecture titled “Relevance of Separation of Powers and its application to Nigeria” at the Annual Law Week of Ado-Ekiti Branch of the NBA over the weekend, Afe Babalola attributed the failure of democratic experience in Nigeria to the failure of the people, the electorate, the Bar and the Bench as well as the government to stand in their positions.
Taking on the people and the electorate, Afe Babalola said: “When we look at our political system of government, the performance of the three arms of government, the electoral crisis and the post electoral crisis in Nigeria, one will arrive at the reluctant and bitter realization that the masses and electorates are not strong enough, united enough, courageous enough, or enlightened enough to cause the three arms of government to adhere strictly to the age- long principle of separation of power”.
On the role of Lawyers in maintaining the Independence of Judiciary, which is critical to the maintenance of the rule of law, Babalola counselled that Lawyers should see themselves as the defenders of the rule of law, instead of being transactional with their overriding interest being materialism, stressing that Legal Advisers to different levels of government and political parties are duty bound to demonstrate high level of professional candour and ethical rectitude expected of their office.
To buttress his position, he recalled the good old days when late Kehinde Sofola, SAN, resigned as Attorney General of the Federation because the government refused to accept his opinion and legal advice. This, according to Babalola was not only commendable but a rare demonstration of a high degree of professional uprightness and ethical rectitude.
Commending members of the Bar to the warning of Francis Bacon that: “If we do not maintain justice, justice will not maintain us”, he equally recalled with relish that Dr. Tai Solarin, the Chairman of Public Complaints Commission in 1970s resigned because he was unable to produce his vehicle license after he was stopped by the police on routine check. He felt that we should live by example.
In his view, “democracy cannot survive, let alone thrive, in any country without lawyers, particularly those in government and those serving political parties, upholding the sanctity of rule of law”.
Panacea to executive lawlessness
He added: “A proactive Bar that is alive to its inherent responsibilities as a watchdog is a panacea to executive lawlessness. Unfortunately, we seemed to have a paucity of that kind of lawyers these days. Rather, we now seem to have transactional lawyers whose main motive and sole motivation is materialism. This is in line with the thought of Caroline Kennedy that ‘the bedrock of our democracy is the rule of law and that means we have an independent judiciary, judges who can make decision independent of the political winds that are blowing’.
“Whether you are a private practitioner of law or a political party adviser or you are holding any political post, please see yourself first as a lawyer and a watchdog of the independence of the judiciary. That is the only way to prevent any of the three arms of government from trampling on the powers of the other arms and indeed the only way to guarantee the independence of the Judiciary”.
Speaking on the uniquely important role of the Bench and the government in ensuring unfettered independence of the Judiciary, Afe Babalola recalled the mercurial words of Ray Ekpu wherein he said:”When you look at the courts today and you find judges who are willing to turn the law topsy-turvy in order to serve interests other than those of justice, then the courage of the few, who realise that they are sitting on the throne of God and that the only expectation is that they should do justice to all manner of men, strikes you deeply. For indeed the seat of a judge is the Throne of God”.
“If a man has the power of life and death over another man, what more can he ask for except the humility to approach his job with reverence, and if one may borrow the lingo of the law, to do justice to all who bow before the throne, without fear or favour, affection or ill-will.
“Judges ought to earn respect from all corners – from the men at the Bar, from those on the Bench, from the parties that bow before them and from those who watch from the sidelines. They ought to be able, in their interpretation of the law, to remedy equities that have been wronged, and to strive to make inequality equal. They ought to carry themselves with grace, dignity and integrity for those are the ornaments of their hallowed office, knowing full well that one false sentence can do great harm to a nation or a generation”.
A cursory look at the conditions under which our judges serve today, would reveal that they may not be able to give judgments against the President, members of the National Assembly, the Police, the Army without fear or favour, affection or ill-will.
To reverse the trend, he advised that the conditions of service including salaries, provision of vehicle, maintenance and fuel, personal assistant, hardship allowance, domestic staff, entertainment, utilities, outfit, leave allowance and newspapers, must be attractive and satisfactory.
His words: “Today, there are judges and magistrates living in rented apartments, there are also others or those without personal/ official car as a result of which they are compelled to use public transport. Imagine the case of a chief magistrate who wanted to board a public transport, a passenger in the same vehicle told him “sorry my Lord, I have paid your transport fare”. However, it turned out that the generous passenger was in fact standing trial before him. The embarrassment could have been avoided if the Judge had his personal car”.
A judge was living in a rented house
He added: “Imagine another case where a judge was living in a rented house owned by an absentee Landlord. A case came before him where his absentee landlord was charged with a criminal matter. In the course of proceeding, he found out that the person charged was infact his Landlord. He could have been saved the embarrassment if he was living in a government quarters.
“Again salary wise, the total emolument of Judges of Supreme Court in Nigeria is N10,899,284.00 while that of his counterpart in England is £257,121 which is equivalent to N128,560,500. That translates to the fact that the Nigerian Supreme Court Justice earns less than 10% of what his counterpart in England earns”.
It is without any iota of doubt reasonable to say that no one is safe in a state where all powers are fused into one arm of government or where an arm of government is so much empowered to deal with another arm of government without recourse to the rule of law. This type of system will breed tyranny and destroy the fabrics of democracy.
And so not until the tenets of separation of powers as entrenched in the 1999 constitution of the Federal Republic of Nigeria(as amended) are tenaciously and religiously obeyed, followed and complied with, the dividends of democracy will continue to elude many Nigerians.
Olofintila writes in from Ado-Ekiti