INDEPENDENCE OF THE JUDICIARY

1. INDEPENDENCE OF THE JUDICIARY PROF YEMI OSINBAJO, SAN

2. INTRODUCTION This presentation is intended to be as practical and experiential as possible. We center the presentation on three basic questions: • WHAT? • WHY? • HOW?

3. JUDICIAL INDEPENDENCE: notion vs practice from who and what? Judges and the court systems must be able to discharge their adjudicatory duties without interference from the executive or legislative. IN PRACTICE Environmental influence- culture, religion, ethnic considerations, public opinion, family, ethnic and social ties play a more significant role day to day

4. WHY INDEPENDENCE?

5. The fiction of the Judex holds civil balance between order and chaos. To continue to hold that balance the public must see the Judex is able to maintain “fairness” and “equality of all the law” [The litigant is concerned whether a judge will favor his Kimman-his church member as whether will favor his government] • Litigants express confidence in the independence of the judiciary by the very fact of approaching the Court for settlement of disputes • This implicit public trust is defeated if judges would not decide cases fairly in accordance with law, fact and evidence; and devoid of personal prejudice and extrinsic influences.

6. HOW?

7. Institutional insulation from political or popular reprisals from unpopular decisions Balanced with judicial accountability • Judges must be accountable for the money they are given over a probable public resource, corrupt, lazy, incompetent, or biased judges must be held to account.

8. Institutional insulation vs accountability

9. APPOINTMENT OF JUDGES “The quality of justice depends more on the quality of the men who administer the law than on the context of the law the administer. Unless those appointed to the bench are competent and upright and free to judge without fear or favor, a judicial system, however sounds its structure may be on paper, is bound to perform poorly in practice”- Schwartz

10. APPOINTMENT: HOW IT WORKS? (appellate courts) But who recommends to the FJSC?

11. APPOINTMENT: HOW IT WORKS? (state high courts) Who recommends to JSC?

12. WHAT IS WRONG? • Recommendations to Judicial Service Commission and Federal Judicial Service Commission (no clearly defined process) • No recommended tests and interviews at JSC/NJC • Pre qualifying conditions • CJN, PCA, CJFHC are members of both the FJSC and NJC

13. WHAT IS WRONG? -APPOINTMENT OF JUSTICE OF THE COURT OF APPEAL • It is a more mysterious process • Who recommends to the Federal Judicial Service Commission? • The Judicial Service Commissions are not involved in the process • It appears that the President of the Court of Appeal wields tremendous influence in the process.

14. SECURITY OF TENURE Critical to ensure independence APPELLATE JUDGES • May retire at 65 • Must retire at 70 For CJN, PCA and JSC, JCA who retire at 65 after 15 years as judicial officers-entitled to • Pension for life at rate of last salary, allowances, and other retirement benefits • If less that 15 years (pro-rated)

15. SECURITY OF TENURE HIGH COURTS OR OTHER JUDICIARY OFFICERS • May retire at 60 • May retire at 65 Judge who retires at 60 after 15 years as a judicial officer is entitled: • Pension for life at the rate of the last salary, allowances and other retirement benefits • If less that 15 years pro-rated These are effective and thoughtful safeguards for the independence of the judiciary

16. DISCIPLINE

17. Discipline- removal THE LAW: • Removal of heads of Appellate courts and heads of Federal and FCT Courts- by the President acting on address supported by 2/3 of the Senate • All heads of state courts, by Governor acting on an address supported by 2/3 majority of the House of Assembly • All other judicial officers- by President or Governor- on the recommendation of NJC

18. Discipline- grounds • Inability to discharge the function of his office • Whether arising from infirmity of mind or body • Misconduct • Contravention of the Code of Conduct The practice • The Salami Precedent • Indefinite suspension of NJC • Refusal of President to reinstate

19. FINANCING AND INDEPENDENCE Remuneration, salaries and allowance of judges recommended by law but not exceeding amount determined by Revenue, Mobilization, Allocation, and Fiscal Commission- shall be paid from consolidated revenue fund of the Federation. • Remuneration and salaries (other than allowance) shall not be altered to their disadvantage after their payment) What is wrong? The practice Yes all judges salaries and allowances are paid from federation account but State Governments pay substantial additional amounts at the discretion of the government. Houses, holiday allowances, cars, medical expenses are paid by the state.

20. WHAT IS WRONG (THE PRACTICE) CONTD • Yes all judges salaries and allowances are paid from federation account but State Governments pay substantial additional amounts at the discretion of the government. Houses, holiday allowances, cars, medical expenses are paid by the state. • Spate of petitions may be a distraction (some petition rather than appeal) • What is the role of the JSC, FJSC? • NJC suspended

21. CAPITAL: FUNDING (THE LAW) • State generally fund capital items in judiciary budgets • But how about financial autonomy laws in some states e.g. Lagos • Line of funding in the budget is guaranteed once the budget is approved.

22. CAPITAL FUNDING: THE PRACTICE • The source of funds for all arms of government is the same and all come to the executive- Federal Allocation + IGR • Governor still has to prioritize for the executive and for all other arms • What goes into the guaranteed line of funding is what is available • The procurement process for servicing contracts • Still requires Judiciary to go to State Tenders’ Board • Governor’s approval is ultimately required

23. How courts express their independence • The control of Court: Judges have control of their Courts and proceedings. They make case management decisions and directives for the conduct of the case. • Control of decisions: Perhaps the only limitation to the power of a Court to decide particular cases as they consider just is the need the to decide cases according to fact, evidence and law. • Protection from consequence of judicial error: an essential part of the independence of the judiciary is the protection of Judges from the consequence of error in judgment. Judges are punished for judicial misconduct not for errors committed in the judicial reasoning process.

24. How do judges perceive their independence? There is a trend that raises serious questions about how Courts perceive their independence and dignity

25. EXAMPLES • Interpretation of statutes limiting the time for determination of cases: In earlier decisions of Nigerians such as UNONGO V. AKU (1983) NSCC PAGE 563 AT PAGE 568 PARA 5 25, the Supreme Court, by a full panel, had authoritatively demonstrated the proper judicial attitude to exercise of legislative powers which interfere with judicial function. In Unongo’s case, the Supreme Court was faced with the question of constitutionality of Section 140(2) of the Federal Electoral Act, 1982 which prescribes the time within which the Election Tribunal can hear and determine the Petitions filed before it. The Section 140(2), has same tenor as Section 285(6) of CFRN 1999 (as amended)The Supreme Court per Bello JSC at page 577 extensively held as follows: “As the courts respect the right of the legislature to control its internal affairs so the Constitution requires the legislature to reciprocate in relation to the jurisdiction of the courts. …It seems to me, if in the purported exercise of powers under these sections, the National Assembly makes any law which hampers, interferes with or fetters the jurisdiction of a court of law such law shall be void for being inconsistent with the provisions of the second limb of section 4(8). “

26. Satutes limiting jurisdiction (contd) Continuing, the Supreme Court held that: “One of the powers which has always been recognised as inherent in courts has been the right to control their internal proceedings and to so conduct the same that the right of all suitors before them may be safeguarded in such manner that all parties are given ample opportunity to prosecute or defend the cases for or against them without let or hinderance. The old adage that delay of justice is denial of justice has the same force as the maxim that hasty or hurried justice is also a denial of justice. ...”

27. How do judges perceive their independence? (contd) There was a twist of approach. In what sadly represents the current state of the law, the same Supreme Court ANPP V. Goni & Ors (Unreported Appeals No: SC/1/2012 and SC/2/2012) literally construed Section 285 (6) CFRN 1999 (as amended) and concluded without more that the 180 days for hearing an election petition begins from the date of filing the petition.And that it would uphold the provision even where it violated judicial autonomy a fundamental pillar of the Constitution.

28. How do courts perceive their independence? (contd) The decision in ANPP v. Goni and many others that followed question the continuing relevance, independence of Nigerian Court in the judicial review of electoral matters, and importantly the sanctity of the doctrine of separate of powers which forms the basic structure of the Constitution.

29. How do courts perceive their independence (contd) Committal proceedings: • Actions which undermine the dignity and independence of the Court most times go unpunished giving the impression that the Courts do not have the confidence and boldness to punish contempt of their proceedings. • The committal process is also hindered by technicalities and Counsel find leeway in the fact of inconsistent decisions of the Court on the appropriate course of action or approach

30. How do courts perceive their independence? (contd) Can a Court punish contempt when its jurisdiction or the validity of its order is challenged? • In earlier cases like Odu v Jolaoso (2003) 8 NWLR (Pt. 823) 547 and Ebhodaghe v .Mike Okoye (2004) 18 NWLR (Pt.905) 472, the Supreme Court made it clear that the power to punish contempt is inherent in the Court by reason of the very fact that it is a Court and that the committal process takes priority over the determination of substantive jurisdiction • Later, in Group Danone v. Voltic (Nig.) Ltd (2008) 7 NWLR (Pt.1087) 637 at 660; paras. E-G; 661, paras. B-H held that "Where a Defendant in a cause challenges the validity of an Order directed against him either by way of an appeal or other application, he cannot be proceeded against for contempt of that Order unless and until the issue of its legality is settled one way or the other.”

31. CONCLUSION Independence of the Judiciary is a cornerstone of a fair, just and available judicial system. We have shown that the • The focus on executive or legislature influence is important but may not be as damaging as social, ethnic, cultural, and even the influence of heads of Courts on subordinates • That the pillars upon which independence shrouds e.g Appointments, discipline, security of tenure, are well provided fro under the law, but practice tends to undermine the law

32. CONCLUSION • The courts appear unassertive in promoting its own independence in the area of its disciplinary jurisdiction and protection of its autonomy. • Judicial independence like political independence calls for constant vigilance from the bar and the bench

33. Thank you