In this report, Vanguard’s Law and  Human Rights recaptures the mood of Nigerians together with their expectations when Maj.-Gen Muhammadu Buhari took over the mantle of leadership on May 29, 2015; examines the state of the judiciary arm of government at the time, the stakeholders’ expectations and how the administration of the gap-toothed General addressed them even as it surveys lawyers on the way forward regarding the relationship between the executive and the judiciary under the new government of President Bola Tinubu.

Background

On May 29, 2015, when Major-General Muhammadu Buhari took his oath of office as the 15th President of  Nigeria, many Nigerians who were conversant with his track record of discipline, zero-tolerance for corruption and love for sanity, were jubilant, with high expectations of performance in various areas of life.

At the time, for instance, many perceived the nation’s judiciary to be arguably corrupt while cases filed at some appellate courts by aggrieved litigants were not given hearing dates for upward of five, six years owing to congestion of courts’ dockets even though the lives of some of the litigants involved depended on the determination of such cases.

Besides, the serving judges were overworked as few judges had to contend with so many cases on daily basis which has a negative effect on their health.

Vanguard reports that with the promulgation of Decree 24 which heralded the 1999 Constitution, the membership of the Supreme Court was increased from a maximum of 16 under the 1979 Constitution to a maximum of 21 justices excluding the CJN.

But the highest number of justices appointed to the Supreme Court was 17 all through the tenure of Justice Muhammad Lawal Uwais (1995-2006) and the first quarter of 2020 during the tenure of the immediate past Chief Justice, Tanko Muhammad (2019-2022).

Indeed, most times, the number of justices on the Supreme Court oscillated between 11 and 14.

Besides, the Federal Government reviewed the salaries of public servants and political officers in the country on four occasions between May 1999 and March 2011, but the last time judges’ salaries and allowances were increased was in 2007.

As soon as President Muhammadu Buhari took over the mantle of leadership in May 2015, some of the prayers of stakeholders to his administration were immediate appointment of more judges at the High Court, Appeal Court and Supreme Court levels and radical review of judges’ condition of service.

Buhari released gun-wielding security agents after top judges in 2016

But instead of Buhari to address the issues, he ordered gun-wielding security agents of the Federal Government to swoop on the residences of senior judges in Abuja, Port-Harcourt and Gombe, breaking their doors, threatening to harm their family members and aides, before arresting few of them for purported offences of corruption in October 2016.

Even when the Buhari government, in June 2019, initiated a letter through his spokesman, Garba Shehu, to then Chief Justice of Nigeria, CJN, Justice Muhammad on the need to appoint five additional Justices at the Supreme Court, for instance, the National Judicial Council, NJC, headed by the Chief Justice of Nigeria though recommended qualified justices for appointment to the Supreme Court bench, the Buhari government refused to give their approval.

It took the NBA and few prominent members of the bar almost one year to get Buhari to sign the list of recommended judges through subtle blackmail, a development that was a stranger to what the relationship between the executive and the judiciary used to be before 2015.

Relationship between judiciary, executive should not be master-servant

—Awomolo, SAN

That was the situation in July 2020 when in a chat with Vanguard, a prominent member of the inner bar, Chief Adegboyega Awomolo (SAN), lamented what he called the shameful treatment meted to the judiciary arm of government in general by the executive and the legislature.

According to him: “Under the Constitution of the Federal Republic of Nigeria (1999 as amended), there are three arms of government—The Executive, the Legislature and the Judiciary. They are what constitute the Government of the Federal Republic of Nigeria. Each of them is allocated its portfolio to manage the Federal Republic of Nigeria. The legislature makes the law; the executive carries out the law, and the judiciary carries out judicial functions to resolve disputes between individuals, persons and governments, individual persons and individual persons, and between government and government. It can also determine if there are disputes between the three tiers of government.

“Unfortunately, the judges who constitute the judiciary are paid less than what senators earn in Nigeria. They are paid less than what the House of Representatives members earn in Nigeria.  And in the state, it is not better. 

“What has happened is that nobody has spoken for them. They cannot speak for themselves. They cannot down the tools. They cannot go to the public to canvass for increase in salary. They cannot, on their own, initiate a case and say come and determine whether our salaries and conditions of service and remunerations are adequate. So, because of that lacuna, the executive and the legislature have been taking advantage of them.

“Worse still, since 1999, the executive and the legislature have been conniving to increase the burden/the work of the judiciary. They timed them by the Constitution: all electoral matters must be determined between so, so time and so, so time. They have been increasing their burden, they have been creating hardship, inconveniences and great burden on the judiciary. But they are not paid well. Yet, these judicial officers have been carrying on with the hope that someday, they will be adequately remunerated.

“Whereas, without the judiciary, our democracy would have collapsed. Without judiciary, our democracy would have gone and the military would have taken over several times. You know, at various points, we reach a breaking point that we think, oh, the end has come but the judiciary has always come to rescue our democracy. Yet, they are least recognised. They are dying in hundreds and nobody is taking note. And this is because of the onerous job they do and the effect on their health. They are poorly paid. Their condition of service is not improved and they suffer in silence,” he added.

All through Buhari’s tenure, the conditions of service of the nation’s judicial officers remained the same.

Although, few days to the expiration of his tenure, President Buhari signed a lot of bills and documents including the one that purportedly reviewed upward the salaries of public and judicial officers by 114% across board, he did not implement it before he left office.

With the exit of Buhari, lawyers in the country have begun to advocate a better relationship between the judiciary and the executive arm of government even as they expressed their expectations from them—the judiciary and the executive— under the new government.

The judiciary has worst experience under Buhari govt—Adesoji Peter

According to a Lagos-based senior lawyer, Mr Adesoji Peter: “To me, the judiciary in the last six years of the Buhari government has had the worst experience in Nigeria’s history. Not even in the dark days of military dictatorship has Nigeria had it so bad. Whilst it was true that some judicial officers were found to be bad and accordingly dealt with, the official brigand against the judiciary cannot be justified in any form and was unprecedented. 

“In the mid-’80s, there was a film released on the rule of the late dictator, Idi Amin of Uganda. In a scene in the film, two British journalists were brought before a judge. In the course of the proceedings, the president put a call to the judge and ordered him to jail the journalists for writing about what he perceived as a false story about the country. The judge in a calm manner responded that his sitting as a judge would not have been necessary if the president has already found them guilty. In the end, the judge freed the journalists. 

“That was not the end of the story. As the judge was entering his chambers, some fierce-looking men entered the court with guns, grabbed the judge, and bundled him to the boot of their vehicle. The story had it that the judge was executed. We had something so similar during the Buhari government. 

“Sometime in 2019, the CJN and some Justices of the Supreme Court were hounded by the government. Some of them were arrested and detained. The CJN was charged before the Code of Conduct Tribunal and was eventually booted out with a mere exparte order from Code of Conduct Tribunal. That was a very terrible time for the judiciary and I am not too sure they have recovered from the experience. 

“Unfortunately, the bar that should have defended the judiciary could only do so in low voice. 

“Going forward, I do not think that much can change with the new government. Their antecedent in Lagos State can tell us what we may likely experience with the judiciary. The judiciary as far as matters affecting the government has been found wanting and at best a willing and docile partner with the executive. 

“To have a revival and turnaround in the judiciary, far-reaching amendments must be made to the judiciary. 

The manner of appointment and finances must be insulated from the executive to maintain their independence. Again the caliber of persons appointed as judicial officers must be the best and must be people that have the natural ability, passion, and burning desire to sustain and maintain the integrity of the judiciary,” Adesoji said.

I cant deny elements of frostiness between Judiciary, executive under Buhari—Prof Kalu, SAN

But a former Attorney-General and Commissioner for Justice of Abia State, Prof Awa Kalu, SAN, said even though one cannot deny some elements of frostiness in the relationship between the executive and the judiciary, he is of the view that it is not beyond redemption.

According to him, “As a senior member of the profession, I cannot deny some element of frostiness between the Executive branch and the Judiciary, but I am not prepared to concede a Master-Servant relationship. To that extent, YES, it is my belief that a few things went wrong within the time the Buhari administration was in control and that a few things could have been done differently. 

“In constitutional law theory, the legal philosopher Montesquieu recognised that good government does not require absolutism and recommended that for the efficiency of governance, three branches of government, namely: the executive, legislature and the judiciary, would be most appropriate. It was also his prescription that those three branches of government would regard each other as equal and that even though equal, a measure of co-operation would be necessary. To that extent, the Constitution of the Federal Republic of Nigeria, 1999, creates three branches of government as proposed and since 1960, including the period of military interregnum, no single branch could be said to have kept another in strangulation. 

“It is thereforeour prescription for the new administration to look at the period starting from 1960 and also look at the circumstances which prevailed in the military interlude and see what the relationship was. Thereafter, the administration should study the period from 1999 until now in order to recognise that the best organised democracies allow the third arm of government, namely the judiciary, to discharge its responsibility without fear, affection or ill-will.

“An even handed judiciary is the handmaid of fair play and justice. For the maintenance of social equilibrium justice and fair play demand a stable and independent judiciary.

Judges should stop attending conferences by institutions that will appear before them 

—Dr Kayode Ajulo 

Also contributing, a renowned constitutional lawyer, Dr Kayode Ajulo, said that during former President Muhammadu Buhari’s regime, which began in 2015, there were various interactions between the judiciary and the executive branch in Nigeria. These interactions have involved both cooperation and instances of tension. I wouldn’t characterize it as a master-servant relationship.

“The doctrine of separation of powers posits that the judiciary checks the excesses of the executive branch through the interpretation of laws and settling of disputes between the government and individuals, which I think the judiciary excelled at during the last administration.

“There were instances of cooperation between the two arms of government under the administration of former President Buhari which I should like to mention a few:

Judicial Appointments: The executive branch, led by former President Buhari, was responsible for appointing judges to various levels of the judiciary, including the Supreme Court, Court of Appeal, and High Court of the FCT. These appointments have involved collaboration between the judiciary and the executive, albeit with some occasional controversies.

Anti-Corruption Efforts: President Buhari’s administration emphasized the fight against corruption as a top priority through the Economic and Financial Crimes Commission, EFCC, and the Independent Corrupt Practices and Commission, ICPC. The judiciary played a crucial role in adjudicating corruption cases brought forward by these agencies.

“Admittedly, there were also instances of tension:

Rule of Law Concerns: There were instances where court orders were allegedly not promptly obeyed by the executive branch. This disobedience to Court orders undermines the independence and authority of the judiciary.

Arrest and Detention of Judges: to go a bit far back, in 2016, there was a controversial incident where several judges were allegedly arrested by the Department of State Services, DSS, on allegations of corruption. Some Justices also had their homes raided. The incident raised concerns about the executive’s interference in the judiciary’s independence.

“All in all, I can say that the relationship was frosty as expected in some given circumstances. But it never assumed a master-servant dynamics.

“As for how it should be now, I reiterate that the doctrine of separation of powers should be respected and maintained, as it is the only thing preventing our country from anarchy. The relationship should be more of collaboration and brotherhood, with one supporting the best of other and one checking the excesses of the other.

“I hope the new administration of President Tinubu encourages the rule of law so as to improve our democracy, he said, adding that much are also expected from the judiciary itself,” he said.

According to Ajulo, quoting Justice Chukwudifu Oputa, JSC, :We are final not because we are infallible; rather we are infallible because we are final, Justices of this Court are human beings capable of erring. It will be short sighted arrogance not to accept this obvious truth.’

“The above notable and profound pronouncement forms part of the ipsissima verba of My Lord, the Justice Chukwudifu Akunne Oputa, Justice of the Supreme Court, (late), most blessed and remarkable memory.

“What can be gleaned from words of wisdom above is that no institution is perfect, not even the Judiciary. So, there’s always a room for improvement.

“The National Judicial Council is fantastically doing a great job as I’m yet to see any institution in Nigeria that has dealt with the identified bad apples amongst them like our judiciary.

“The NJC and the FJC should also ensure that only competent judges are appointed and elevated to superior courts.

“Our judges should also undergo more training as it is done in other climes but efforts should be made to discourage judges attending seminars and training sponsored by some institutions who are would be litigant/parties before the court. 

“Finally, I insist that the call for and push for financial autonomy should continue, because without that, the judiciary will not truly be independent,” he added.

Courageous judiciary’ll restore public confidence in justice system— Shittu, SAN

Another respected member of the inner bar, Mr Wahab Shittu, SAN, said under the new government of President Tinubu, he expected to see a judiciary that will have maximum respect for the rule of law, where all the stakeholders,  particularly lawyers and judges will be jurists obsessed with the theory of justice rather than adherence to technicalities and with zero- tolerance for corruption. 

Shittu  in a statement he sent to Vanguard said he is also expecting to see a judiciary with zero- tolerance for delays in the administration and dispensation of justice,a reform- oriented,  courageous and disciplined Judiciary that will uphold high ethical standards in all spheres, a judiciary that holds Governments at all levels accountable and promote responsibility in Governance and will strengthen the principles of separation of powers and deepen democratic standards and principles

He added that he is looking forward to see a judiciary that will promote respect for fundamental rights, respect for due process, transparency and support democratic institutions; ajudiciary that will restore public confidence in the justice delivery system as well as promote decent criminal and  civil litigation and a judiciary that is comparable in standards to the best in the world. 

Judiciary, executive must keep their relationship within the ambit of the law —Ahamba, SAN

A prominent member of the inner bar, Chief Mike Ahamba, SAN, said he expected to see a judiciary and the executive thatshould keep their relationship within the ambit of the provisions of the  law.

“Nobody wants anything extra or anything less. That is all we want. The judiciary should consider themselves as having been given the powers by the constitution and to exercise that authority without any fear or favour. Let them do what the judiciary did in America after the 2020 election. What they did was that as far as they were concerned, they followed the law and didn’t, in any form whatsoever, bow to the executive,” he said.