Tayo Oyetibo, SAN.

By Tayo Oyetibo, SAN

THERE are two major principles which are critical to the success of any democracy like ours. These are the principle of separation of powers and the principle of rule of law.

The principle of separation of powers, with its concomitant principle of checks and balances, as espoused by Montesquieu, postulates that the legislative, executive and judicial powers of the state must be exercised by separate and independent bodies and that no branch should be able to exercise too much power without checks and balances from the other.

Our Supreme Court has in a number of their decisions recognized the importance of the principle of separation of powers under our constitution. The juridical calamity which could befall a nation is better imagined than experienced where the victim of abuse of power by the executive is the judiciary. This takes us to a discussion of the connotation of the doctrine of the rule of law which we have identified as the second principle that is critical to the success of democracy.

The rule of law simply means that the law will rule the affairs of men and the nation as opposed to the whimsical caprices of those who exercise power, be it legislative, executive or judicial. It connotes that decisions and orders of court will be obeyed by everyone and authority. It is for this purpose that political office holders are required to rake the oath of allegiance contained in seventh schedule to the constitution by which they swear to preserve, protect and defend the constitution.

The remarkable significance of the role of the court in the maintenance of the rule of law in any nation was well captured by Oliver Wendell Holmes, Jr in his seminal work “The Path of the Law” where he wrote, inter alia:”The prophecies of what the courts will do in fact and nothing more pretentious, are what I mean by the law.”

The Nigerian Constitution is very emphatic on this aspect of the doctrine of the rule of law in section 287. In light of this constitutional provision, it is submitted that when the law has been pronounced upon by the court, it is the unqualified obligation of the parties concerned be they citizens or government or governmental agency to obey the decision or order of such court in due observance of the rule of law.

Any deviation from this norm, particularly by the executive, will in our view, constitute an opposition to such decision or order and accordingly, an attack on the judiciary. This is so because the constitution itself has provided the mechanism for expressing disagreement with a decision given by a court other than the Supreme Court. This is by an appeal to a higher court.

Our courts have always spoken forcefully in condemnation of executive disobedience of orders of court. In this regard, we cannot forget the notable pronouncements of their lordships of the Supreme Court in the celebrated case of The Military Governor of Lagos State & Ors V Chief Emeka Odumegwu Ojukwu & Anor. It only remains for me to add to the pronouncements of their lordships in this case that executive subversion of the constitution by way of disobedience of orders of court(s) constitutes, in no uncertain term, an attack on the judiciary.

The principle of separation of powers which has been written into our constitution is intended to promote efficiency in governance by precluding the exercise of arbitrary power by all the arms of government and thus prevent friction. The judiciary can also be said to be experiencing an attack when it is being subjected to intimidation by the executive. This could be by physical intimidation or harassment.

The executive controls the coercive powers of the state but it is vested with that power of control not because the constitution wanted it to be used to intimidate any other arm of government. Justice is said to be blind and as such parties who appear before the court in a dispute are deemed, in the eyes of the law, to be equal, be they citizens against citizens or citizens against government or vice versa. Judges who exercise judicial powers to determine disputes between the government and individuals ought not to be subjected to reprisals for handing down decisions which are unfavourable to the executive.

Another specie of judicial intimidation, which can be said to constitute an attack on the judiciary, is by way of media trial of persons who are accused of commission of criminal offences. To subject the facts of a matter said to have been obtained in the course of investigation of the case to excessive publicity even before the defendant is arraigned on the charge and without affording the defendant an opportunity to make his own comments on the alleged facts, seems to me to be a dubious stratagem to inflict on the minds of the public as well as the judge that would ultimately adjudicate on the case, a perception of guilt of the defendant such that the Judge opens himself up to scurrilous attack from the public if the defendant is eventually set free after trial.

Can the judiciary be the cause of attack on it?

We have discussed what is meant by a siege and also when it can be said that the judiciary is experiencing an attack but shall we also not ask whether the judiciary can be the cause of attack on itself? Without wasting much time on this subsidiary question, I think corruption can be a cause of attack on the judiciary. The office of a judge is a hallowed office whereas corruption is filthy and despicable.

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When it comes to corruption on the Bench, I think, there are two categories of the menace. These are what I will call ‘corruption of the greed order’ and ‘corruption of the order of perversion’. The first category refers to cases of judges who demand for and or receive bribe to deliver judgment in favour of a litigant who, based on the facts of the case and applicable law, would ordinarily have been entitled to judgment. In those circumstances, the judge uses his office to enrich himself contrary to his oath of office. This specie of corruption is no less condemnable.

The second category, that is, corruption of the order of perversion, has an element of the first category but it’s more vicious. These are cases in which the judge demands for and or receives bribe from a litigant to deliver a favourable judgment to which that litigant, but for the bribe, would not have been entitled. This is like selling the judgment of the Judge.

A judge who engages in corruption of the order of perversion is worse than an armed robber. He brings contempt, disdain and opprobrium to the Bench to the consternation of men of integrity. He takes what belongs to the righteous and gives to the unrighteousness. When armed robbers are caught, does the law not require that due process be followed to apprehend and try them before they are condemned and killed where death is the prescribed punishment? Can we, therefore, justify the executive for descending on the judiciary in a manner of gangsterism because of allegations of corruption? God forbid!

Is the Nigerian Judiciary under siege by the executive?

The Nigerian judiciary, like any other judiciary, has never been a model of perfection. It has always moved from one issue of concern to another. At least the memories of the days of the “ouster clauses” and the unbridled stand of the judiciary are not lost on us. We also cannot forget in a jiffy the reckless, brazen interference and intimidation of the judiciary by the military and the resilience of the Bar in defence of the rule of law. Those were the dark ages in the annals of Nigerian Judiciary but they appear to be here with us again in another guise.

When you see men who are otherwise referred to as secret agents because of the undercover work that they do, appear, at night, in hoods in the homes of judges, in a gestapo manner, breaking doors and locks to gain entry; when orders are made by the court granting bail to persons accused of commission of crime but the executive refuses to release the defendant for more than three years after the order was made; when the chief justice of a nation is removed from office by the executive upon an ex parte order made at the instance of the executive by a body that is and openly admits to being subject to the control of the executive; when a citizen who has been granted bail and was only released by the executive after having been given ultimatum by the court, is forcibly removed from the court room whilst the court was sitting under the guise of being rearrested by the body that had held him captive despite the order of bail; and when a judge gives a decision which the executive finds unpalatable and a week thereafter he, the judge, is required by the executive to declare his assets for investigation; then it should not be difficult to know that the perilous times of attack on the judiciary is here with us.

Conclusion: The role of judges in a democracy is an enviable one and in fact sacred. Judges are like viceroy of God on earth. While judicial officers must exhibit high degree of competence and diligence, uncompromising sense of discipline, an unscathed level of probity, integrity, transparency and incorruptibility, the executive must never, in any circumstance, employ self-help in the guise of correction of the judiciary. The rule of law must at all times and in all situations be observed. The test of the maturity of any democracy can be measured by the preparedness of its organs to observe the rule of law even in extremely difficult situations.

Major casualty

The Bar, on its part, must also not relent in performing its role as the “guardian angel” of the independence of the judiciary. It is axiomatic that the Bar is a major casualty of an attack on the Judiciary. When the judiciary is cowed by the executive, the Bar suffers because litigants, who are clients of lawyers, are not able to obtain, from the judiciary, decisions which are rendered by courts constituted in such a manner as to secure their independence and impartiality which is an essential ingredient of the right to fair hearing guaranteed by the constitution. The Bar has a duty to ward off, through the instrumentality of the law, any tyrannical attempt by the executive to subject the judiciary to intimidation with a view to subjugating it to subtle control.

The Bar must fight with fervor and pursue with resilience the cause of justice without yielding to any form of intimidation. It is, however, my belief that the Bar, too, must live above board and let integrity and probity be its watchword. It is only when the Bar and the Bench abdicate their utilitarian role, that the judiciary can successfully be placed under siege. For now, let the battalion of the Bar advance.


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