A Formula For Democracy 5: The Judiciary: Are There 3 Arms?

S.O.K Shillings

There are 3 arms of Government, namely: the Legislature, the Executive and the Judiciary. The legislature makes the laws, the executive executes the laws while the Judiciary interpretes the laws. The law is the central value in governance.

The Judiciary is engaged in dispute resolution, administrative law, prosecutory trials and interpretation of laws. Disputes are resolved between and among persons, person(s) and government(s); and, governments.

The justice sector involves the courts, law enforcement agencies, prison services, the law practice profession and Government (ministry of justice) all working interdependently especially in the administration of criminal justice.

The concept of the ‘independence of the Judiciary’ is globally acknowledged as a prerequisite for fairness in justice delivery especially in matters between persons where governance is in issue like election matters, but more importantly, between persons and government; and, most importantly, between governments. The cliche: who pays the piper dictates the tune holds here.

By their training, lawyers are superhumans who should act beyond sentiments. But super or not, they remain human and need not be led into temptation. It is therefore difficult to achieve independence especially in view of the fact that the head of the Judiciary will be chosen by the chief executive who has many issues of official disputes in court. The archaic English maxim that the king is never wrong in his court is instructive.

The definition of democracy as ‘government of the people by the people …’ by Abraham Lincoln is universally acknowledged. It means that the people must choose their rulers. They choose the legislators by election, universal or otherwise. They choose the head of the executive, usually by popular election. But in the case of the Judiciary, the head is chosen by the executive with a ceremonial concordance of the legislature. In the United Kingdom, the king appoints on the recommendation of the Prime Minister. It is noticeable that the Judiciary exists even in a military regime when democracy has been sacked. Can it therefore be said that the Judiciary is part of a democratic Government or an arm thereof?

The only aspect of the Judiciary’s responsibilities that is directly related to governance and where it could be said to interprete the law(s) is the settlement of disputes between governments. It is a special institution in governance distinct from Government.

The administration of the court system and nomenclature in Nigeria is awkward. The difference between the Federal and State High Courts is the issue of jurisdiction over certain matters in the Exclusive List. Other than that, both courts exercise jurisdiction over state and federal matters. Another difference is that the buildings of the Federal HC are built by the federal government while those of the state are built by the respective states. The qualifications and appointing authority, being the National Judicial Council (NJC) headed by the Chief Justice of Nigeria is the same. The NJC regulates the emoluments of judges. Another court of coordinate jurisdiction is the National Industrial Court manned by judges of same qualifications.

The Chief Judge of the State who superintends the State High Courts is ‘appointed’ by the Governor on the recommendation of the NJC. Aside from satisfying the democratic tripod, he has little or no control over the judges other than recommending to NJC for appointment and postings to courts. His real powers of control are exercised over the Magistrates and lesser courts.

From the foregoing, the classification of high courts into ‘federal’ and ‘state’ is no longer tenable. Both should have jurisdiction over all matters and should be fused and renamed simply as High Court. This is without prejudice to specialisation like the industrial court and possibly crime courts and corruption court (with a different jurisprudential foundation and procedure). Another such specialisation should be the election courts which should be constituted of retired judges and justices to save the regular courts from disruption.

The High Court should then be a federal concern while the states should manage other courts including the Magistrates’, customary and sharia courts and their respective appeal courts (which rank with the High Court). It is worthy of note that those courts in Lagos State are now headed by a lawyer. Their jurisdictions should be widened. There is no longer a court without record hence the classification as court of record is no longer valid. A chief without authority over his subject is no chief. There should be Presiding Judge of a State Division of the High Court (as conceived herein) and a Chief Judge of the State who administers state courts (as enunciated above).

As stated above, the areas where the independence of the Judiciary is threatened is the adjudication of matters between persons and government; and, between governments. These matters come up from the High Court while the Supreme Court has absolute jurisdiction over constitutional matters between states, and, state(s) and federal government. For this reason, it seems unsafe to leave the appointment of the Chief Justice and justices of the appellate courts in the hands of the chief executive. There should be a body responsible for the appointment and ratification.

Unfortunately, there is no proper regulatory body of that clout yet. The Body of Benchers is statutorily saddled with the duty of calling Law students to the Bar and mentoring them as corollary. It also superintends the Legal Practitioners Disciplinary Committee. The Legal Practitioners Privileges Committee recommends lawyers for award of Senior Advocates of Nigeria. The General Council of the Bar (GCB) consisting of the Attorneys-General of the Federation and States and elected representatives of the Nigeria Bar Association to regulate the practice of law has never been formed. The election of the first set of NBA representatives has just taken place. But the responsibility, by existing statutes, is just to serve as an undertaker if the NBA suffers disintegration which is not the proper intention.

There is need to properly harmonise the Body of Benchers and the GCB and give proper responsibilities including the involvement in the appointment of the Chief Justices and other justices (as enunciated above). There is need for a statutory framework and immediate constitution of members with appropriate instruments. The NBA too should have a federal structure with the creation of state chapters to be able to play its roles in this regard.

In the United Kingdom, the King is not part of Government but is the sovereign. It is hereby suggested that there should be a representative ‘sovereign’ to ratify the appointment by the proposed regulatory body; not Government as represented by the President or the Prime Minister.

Another thorny issue regarding the Judiciary is the funding. It is submitted here that putting money in the hands of the’Judiciary’ to be managed by the Chief Justice/Chief Judge or the Chief Registrar is not the independence of the Judiciary. It can only lead it into temptation or ridicule the Chief Justice/Chief Judge who could be called to question genuinely or otherwise and thereby erode the desired independence. Like so many other responsibilities, it is an addition to the distractions. There is high likelihood of genuine mismanagement and misappropriation by the said officers who are not trained accountants. Accountants should be seconded as accounting officer/s to handle budgets and virements. The regulatory body will supervise while the Chief Justice/Chief Judge gives direction.

The Judiciary is no longer achieving justice. The delay and clumsiness are caused by over-appeal of cases, waste of human resources in constituting 3 and 5/7 Justices over all matters including interlocutory (mostly innocuous) applications, clumsy practice and procedures and understaffing of the courts with judicial officers. The constitutional guillotine of number of justices of the appellate courts is unreasonable because it is a matter of demand and supply. A central Supreme Court is tantamount to institutionalising injustice. There should be more or otherwise its jurisdiction should be limited to constitutional, political and only economic matters of prescribed values. Additional years of litigation does not perfect but rather perverts justice.

A well-structured justice system is germaine to the attainment of social harmony and economic growth.

For the umpteenth time, it must be emphasised that we run a skewed formula that cannot work. A constitutional amendment is a necessity going forwards. And there is no use running on a wrong road.

Today, Nigeria marks 62nd anniversary of self-rule. We are all not happy. But! Act well your part, Angels do no more; and, there the honour lies!

Long Live Nigeria!

S. O. K. Shillings Esq., writes from Ikorodu.