Of overbearing Executive and besieged Judiciary

Posted by News Express | 29 June 2019 | 785 times

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If your desire is for Good, the people will be Good” – Confucius

There is now national conversations around the theme of how well we can contextualise the Nigerian judiciary as an independent arm of government, as provided for in the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and with specific reference to section 6.

These conversations are as old as the return to civil rule in 1999. But, as I write, the intensity and tenor of the conversations have assumed a frenetic dimension.

The first institutional group to throw the salvo was the Nigerian Bar Association (NBA), which is as far as possible one of the strongest advocates of constitutional democracy in our clime.

The body of lawyers has just issued a verdict indicting the executive arm of government, for seeking to emasculate the judiciary. 

The NBA is of the opinion that the dispensation of justice in Nigeria is now imperiled by a fear-factor; coupled with a clear case of judges who are arbiters in the supposed temple of justice now dishing out justice like cowards because, as it were, the institution of the judiciary is besieged by an overbearing executive arm of government. This is as dangerous as it can ever be because, if those who dispense justice are themselves encumbered by external forces, it is almost like chanting a nunc dimitis to the much canvassed and much cherished integrity and independence of this strategic arm of government. But these interferences are both centripetal and centrifugal, if you ask me. This is what this piece is set out to articulate. 

Let’s begin with the Nigerian Bar Association’s criticism of what it calls “pervasive insecurity of lives and property in the land” and what it described as “systematic erosion of the independence of the judiciary”, in its most recent publication. 

The association said judges and lawyers had been so intimidated and blackmailed by the Federal Government that they nurse the fear of being visited with “inquisitorial terror”, should they rule against government or take briefs considered to be anti-government. This position has come exactly 48 hours after the European Union's election monitors adjudged the 2019 polls as manipulated. The bar also presented a graphic example of the executive’s interference in the administration of the judicial arm of government, culminating in the unconstitutional removal of the last occupant of the Office of Chief Justice of Nigeria. 

The NBA president, Mr Paul Usoro (SAN), said this in a speech he delivered and unanimously adopted by the National Executive Committee of the association at its meeting held on Thursday, June 20. The speech was later made available to journalists.

Usoro had said the level of insecurity in the country and the attack on the independence of the judiciary and the legal profession constituted a threat to the rule of law, and by extension the country’s democracy.

He noted: “Without  the  rule  of  law  and  security  of  lives  and property,  society  gradually descends  into  a  state  of  anarchy,  and  democracy  becomes a  mere  pretension. Democracy itself cannot survive without the rule of law.

“These twin  elements  –  rule of  law and  security  of  lives  and  property  –  are what  drive  society and  the  economy. It would  be  revealing  if  we  were  to  have  proper  and  verified statistics  on  the  investment opportunities  that  have  been lost by Nigeria because of these  twin pervasive  challenges: insecurity and  the erosion of  the  rule  of  law.”

Usoro averred that the climate of fear instilled by the Federal Government undermines the  independence  of  the judiciary  and  the  ability  of  the  judges  to  act confidently,  without fear or favour in dispensing justice.

He  said:  “Our judges  are  threatened,  intimidated  and  blackmailed,  mostly  by  the executive arm of government and their agencies, both  at  the  federal  and  state  levels. So, we  have judges  literally  walking  on  egg-shells: notably, where  governments and  their  agencies  have  interest  in  matters  that  they adjudicate upon.”

Besides the obvious fact that the threats hanging on the neck of the judiciary like the sword of Damocles are getting increasingly pronounced, allegations of executive interference have become a recurring decimal.

During the 2007 All Nigerian Judges Conference, the then President of the Court of Appeal - incidentally under whose purview as interim chairman of the National Judicial Council that further alarms of threats and harassment from the executive have become widespread – Justice Umaru Abdullahi, had delivered a talk on judicial integrity whereby he had also accused the executive of interference.

He observed: “The 1999 constitution of the Federal Republic of Nigeria has provided for three arms of government in this country. These three arms of government, namely executive, legislature and judiciary are assigned appropriate responsibilities for the smooth operation of the government."

“Each arm”, he said, “is supposed to work in harmony with the other, without necessarily interfering or overloading it on the other. This is where the problem lies.” He then asked, “Can it be said in all honesty that the Nigerian Judiciary received a fair deal in relation to other arms of government in the discharge of its constitutional responsibilities?” Justice  Abdullahi, President of the Court of Appeal as he then was, equally answered: "I think, not.”

These verbal salvos by the private bar has found a re-echo somewhere when the national chairman of the opposition People’s Democratic Party (PDP) backed the Nigerian Bar Association.

The PDP national chairman, Uche Secondus, noted that judges and justices by their calling cannot speak out publicly, even if they are under pains, except through the bar; as has been eloquently and timely done by the bar association, adding that all watchers of democratic should note these concerns.

He said that the PDP has continuously raised the alarm over the gradual erosion of the doctrines of separation of powers by the ruling All Progressives Congress (APC) administration, while the nation watches helplessly as the executive continues to muzzle the other arms of government, including even the press.

In a well-researched paper on the doctrine of separation of powers, edited by the then Director-General of the Nigerian Institute of Advanced Legal Studies, Prof I A Ayua, it was made clear that although the three arms of government are separate, they are not absolutely independent of each other but work in synergy.

“Therefore, if the doctrine of the separation of powers is understood to mean that the separate arms of government could not have partial control over some parts of the other, there would be difficulties. But, if the doctrine is understood to mean that the whole of the powers of the Legislature, the whole of the powers of the Executive and the whole of the powers of the Judiciary are not possessed nor exercised by the same person or authority, then there is merit in the blending that produces the checks and balances which, in turn, produce substantial consensus that, in its turn is necessary for good government." 

That scholarly research affirmed: "Human nature being what it is, the passions of men will not conform to the dictates of reason and justice without constraints.”

I agree with the submissions of the leadership of the Nigeria Bar Association regarding the state of siege under which the judiciary operates. 

But this is same with all other critical functionaries in the non-governmental and civil society institutions, who are constantly looking over their shoulders to dodge “bullets” literally shot on regular basis by the executive arm of government, with very low tendency for tolerance of dissenting opinions.

There is, however, the side of this debate that we ought to expose. 

This is precisely the questionable role of the judicial officers who have made themselves willing tools in the hands of the presidency, to undermine the independence of the judiciary. There are judges today known as being sympathetic to the ruling All Progressives Congress, just like what obtained under a previous administration controlled by the Peoples Democratic Party. Once a matter is handled by some judges, and such touches on the validity or otherwise of certain administrative actions of the President, an observer can safely guess what outcome would result there from. Such judges are shamelessly predictable. These unprincipled judges are suspected of having skeletons in their cupboards, which have been found out by the anti-graft agencies and, as a result, are now under intense regime of blackmail by the executive arm of government. This set of bad eggs is operating under a siege mentality, in addition to the general climate of fear hovering all around the judicial bench, from the all-conquering executive arm of government. 

It is important to state that the role played by the National Judicial Council under the interim headship of the erstwhile Court of Appeal president Abdullahi, is not salutary. 

The biased and jaundiced nature of handling the controversies that trailed the illegal unseating of the immediate past Chief Justice of Nigeria, Walter Onnoghen, has contributed to the atmosphere of executive siege under which the judiciary now operates.

In that 2007 talk delivered by Justice Umaru Abdullahi, he alluded to what he identified as qualities expected of a judicial officer so as to protect the integrity and independence of the institution.

He listed the following:

 1. Judiciary must put its house in order and act unanimously from the point of strength and dignity;

2. Heads of courts must provide the necessary leadership qualities by putting in place policies that can promote a sense of belonging to all Judges under their leadership;

3. Ambitious judges should control their ambitions and stop undermining the position of their respective heads of court in the interest of the judiciary. At the end of the day, they will also be losers. They stand the risk of being dumped after they were used;

4. The judiciaries at all levels must work together and take a common stand to force state chief executives to respect the Constitution of the Federal Republic of Nigeria, with regards to funding of the judiciary. Enough is enough;

5. Heads of courts are duty-bound to work hard to create an amiable environment for Magistrates, Area/Customary/Sharia judges, and all supporting staff of the judiciary, to have a sense of belonging and be appreciated.

If truth be told, Abdullahi should have played the role of an unbiased umpire, by asking both justices - Onnoghen and the acting Chief Justice of Nigeria, Tanko Muhammad - to quit the judiciary, since their continuous stay have run into stormy waters; largely due to the internal dynamics that were activated selfishly to let in the executive to drive a wedge between the two top jurists in Nigeria. But when the opportunity came for the retired jurist to practice what he preached, he failed the “integrity test”, going by the contents of his 2007 lecture. That he led the NJC to side with President Muhammadu Buhari over the irregular appointment of the current Chief justice of Nigeria, Tanko Muhammad, is the single most potent contributor to the climate of fear bedevilling the judiciary.  

That division opened by the unjust removal of a Christian-born jurist, Justice Onnoghen, to make way for the Moslem-born Tanko Muhammad, touched on the ethnicity and religious divides, which are at the core of the foundational political discord in Nigeria: It has led Nigeria to the current quagmire of having all the heads of the three arms of government domiciled in the hands of persons of Moslem religion, as against the Federal Character principle of section 14(3) of the Constitution. This is the nitty gritty of the state of siege erected by the presidency, tearing down the walls of independence of the judiciary.

 However, the desire of the executive to undermine the independence of the judiciary is definitely not for any good or altruistic reasons. It is selfish and self-serving. 

•RIGHTSVIEW appears on Wednesdays and Saturdays, in addition to special appearances. The Columnist, a popular activist (www.huriwanigeria.com, www.emmanuelonwubiko.com), is a former Federal Commissioner of Nigeria’s National Human Rights Commission and presently National Coordinator of Human Rights Writers’ Association of Nigeria (HURIWA).

Source: News Express

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