Judicial Independence: A Key To Curb Corruption In The Judiciary By Y.A, Usman Esq

To identify an existing problem in its actual context is a
stepping stone to a proper point in finding a solution or remedy to
the said problem. Therefore, it is very necessary to know what
judicial independence and judiciary are all
about.  Judicial
independence is generally used to mean that both
the institution of the judiciary and individual judges are free
from any form of interference by other institutions and
individuals.

From the above definition, it shows that the judiciary is not
only the judges but it includes individuals working in the
institution of the judiciary. Obikeze posits that
“judiciary is
the court and
all those who
work in the
vine yard of
justice.”

Judicial independence will enable individual judges to exercise
their judicial functions without undue interference while making
decisions. Judiciary is always expected to be freed from any other
institution such as the Executive, the Legislature, the general
public and any other quarter whatsoever; it makes its decision
according to the laws and facts presented before it without
restrictions, pressures, threats or interferences, whether direct
or indirect.

Furthermore, it is the mandate of the judiciary to dispense
justice to all manner of people, without fear or favor. 
Kriegler J, a Retired Justice of the Constitutional Court of South
African posited that the judiciary is an independent pillar of the
State, constitutionally mandated to exercise the judicial authority
of the State fearlessly and impartially.

It is also clear that, the judiciary as a strong arm amongst
other arms of government has a role in a democracy to interpret the
law and uphold the principle of the rule of law .Not only this, the
judiciary has the constitutional right to settle legal matters and
impartially administer justice. Hon. Justice Kayode Eso,
JSC, aptly stated that without justice, law labours in
vain.

It is obvious that, the challenges faced by the judiciary
include the lack of independence which makes the hands of judges to
be found in corruption.  Generally, corruption is the main
obstacle to peace, stability and sustainable development, and
equally a complex problem in any given society. However, the
judiciary is expected to maintain judicial integrity and not to be
seen as a corrupt institution no matter how the pressure is. His
Lordship, Hon. Justice Samson Uwaifo, JSC, while describing a
corrupt judge and what he can negatively cause to the society at
large said:

“A corrupt judge is more harmful to the society than a
man who runs amok with a dagger in a crowded street. The latter can
be restrained physically. But a corrupt judge deliberately destroys
the moral foundation of society and causes incalculable distress to
individuals through abusing his office while still being referred
to as honourable.”

Furthermore, a few studies of the matter show that there’s no
doubt in the fact that, lack of independence of the judiciary is
strongly linked to corruption. This is because the level of
political pressure on the judiciary and constant control exercised
by other institutions over the courts cannot be measured.

Moreover, one should not look far to know that lack of
independence is found to hamper access to justice and one of the
ways to cut off the influence of political and non- political
connection within the judicial domain is to make sure that the
judiciary has its independence which is the concrete measure to
fight corrupt practice in the judiciary.

Undoubtedly, the more corruption grows in judicial system, the
less the development in a country. It was previously stated that,
the word “judiciary” includes those people working
in the institution such as Registrars, clerks and other officers.
Sadly, some of these corrupt practices take place in court
registries where clerks have their ways of extracting money either
from legal practitioners or the litigants without judge being aware
of it. Some clerks are induced with money to reduce the number of
points or distich some evidence from the case file.

It is important to note that the allegations of corruption cases
filed or raised against some judges sometimes are used to discredit
honest judges handling sensitive cases. This is because they know
that the judge will not allow himself to be politically or socially
influenced. A courageous judge who stands immovable and refuses to
be influenced does that at his own peril, and must be ready to face
the pain of losing his job.

Basically, attitudes of Judges to their duties are always
expected to be positive, and they must disregard any form of
political pressure or affiliation. In a case, a lawyer filed an
affidavit stating that he noticed the judge will not do justice to
the case and asking for transfer of the case to another court.
Justice Oyemade, while reacting said:

“I will not allow myself to be intimidated into sending
innocent person to jail. Even, if this means losing my job. I am
still sure of leading a decent life. The only thing we have in this
country is the judiciary. We have seen politicians changing from
one policy to another and one party to another. But the only
protection the ordinary people have against these inconsistencies
is a fearless and upright judiciary. “

As a matter of fact, the judges who protect judicial integrity
cannot avoid to be put in a position of being blamed or accused of
failing to associate themselves with politicians and other
institutions. It is imperative to equally note that both the rich
and poor men look up to the judicial authority to see that justice
is done in any given case. It is said that the judiciary is the
last hope of the common man.

It must however be understood that the independence of the
judiciary is not only enjoyable by the Judiciary but it also assist
the people at large in getting justice done, the absence of which
gives the way to the complex problem in the society. Lord Frances
Bacon posits that “if we do not maintain justice, justice will
maintain us”. Justice must not only be done but also be seen
to be done.

The problem can be easily tackled once it has been properly
identified. Judicial independence exists with the existence of
certain elements in the judiciary, and at the same time, it could
be missed with the absence of them. The said elements are as
follows:

1. 1. Mode of Appointment and Removal of
   Judges
2. 2. Security of Tenure.
3. 3. Adequate Remuneration and Budgetary
   Provisions of Judicial Officer and other Staffs
4. 4. Non- Interference of other Institutions
   with the Judicial Process.

1. Mode of
   Appointment and
   Removal of
   Judges: To have independence of the judiciary in
   the judicial institution, the political and social influence should
   not be given a slight space to operate while doing the selection or
   recommendation of candidates for judicial appointments. This is
   because judicial independence disappears once the process in
   appointing judges is politicized or influenced by the executives,
   or a majority party in the legislature. The appointment of judges
   is expected to be on merit-bases and this is very essential to be
   considered in the appointment process. The modes of appointing or
   removal of judges are clearly explained in Sections 231 (1) and
   (2), 238 (1) and (2), 250(1) and (2), 256 (1) and (2), 271 (1) and
   (2) 276 (1) and (2) other sections of the Constitution of the
   Federal Republic of Nigeria 1999 as amended. Also, Section 292 of
   the Constitution spells out the procedures to be followed in
   removing a judicial officer.

From the foregoing provisions, it can be discerned that, the
President or the Governor on the recommendation of the National
Judicial Council appoints certain judicial officers and this is
subject to confirmation by either the Senate or House of Assembly
of a state as the case may be.  This only applies to judicial
officers which includes the Chief Justice of Nigeria and Justices
of the Supreme Court, President and Justices of the Court of
Appeal, Chief Judge of the Federal High Court and the Chief Judge
of the Federal Capital Territory. And as the case may be, the Chief
Judge of the State High Court, Grand Kadi of the State Shariah
Court of Appeal , President of the Customary Court of Appeal FCT
Abuja, President of the Customary Court of Appeal of a State and
President of National Industrial Court. In some appointments of
judicial officers as the case may be, the President or Governor
appoints only on the recommendation of the National Judicial
Council without a need for confirmation by either the Senate or the
House of Assembly of a State.

Section 292 provides as
follows:

1. A judicial officer shall not be removed from his office or
   appointment before his age of retirement except in the following
   circumstances –
   (a) In the case of –

(i) Chief Justice of Nigeria, President of the
Court of Appeal, Chief Judge of the Federal High Court, Chief Judge
of the High Court of the Federal Capital Territory, Abuja, Grand
Kadi of the Sharia Court of Appeal of the Federal Capital
Territory, Abuja and President, Customary Court of Appeal of the
Federal Capital Territory, Abuja, by the President acting on an
address supported by two-thirds majority of the Senate.

(ii) Chief Judge of a State, Grand Kadi of a
Sharia Court of Appeal or President of a Customary Court of Appeal
of a State, by the Governor acting on an address supported by
two-thirds majority of the House of Assembly of the State, Praying
that he be so removed for his inability to discharge the functions
of his office or appointment (whether arising from infirmity of
mind or of body) or for misconduct or contravention of the Code of
Conduct;
(b) in any case, other than those to which
paragraph (a) of this subsection applies, by the President or, as
the case may be, the Governor acting on the recommendation of the
National Judicial Council that the judicial officer be so removed
for his inability to discharge the functions of his office or
appointment (whether arising from infirmity of mind or of body) or
for misconduct or contravention of the Code of Conduct.
(2) Any person who has held office as a judicial
officer shall not on ceasing to be a judicial officer for any
reason whatsoever thereafter appear or act as a legal practitioner
before any court of law or tribunal in Nigeria.

Constitutionally, in respect of the appointment and the removal
of judicial officers, the National Judicial Council is always
charged with the responsibilities. Section 21 (a) and (b), part I
of the Third Schedule spell it out.

It outrightly states that the removal of judicial officer is by
the President or Governor upon an address presented by at least two
third majority of the appropriate legislative house calling for
such removal on the ground of misconduct or inability to discharge
the functions of the office (in the case of the Chief Justice of
Nigeria /State Chief Judge) or on the recommendation of the
appropriate judicial service commission (in the case of other
judicial officers). There is no doubt that in Nigeria, the
appointments  and removal of the judicial officers at the both
National and State level are sometimes not based on the
recommendation of the Council as required and the grounds upon
which the judicial officer can be removed which are misconduct or
inability to discharge the functions of his office or contravention
of the code of conducts which can only be investigated and
confirmed by the National Judicial Council and this Council will
also exercise disciplinary control over such officer, but all this
are mainly in the hands of executive, legislature and even
politicians. See the case of Hon. Justice Rafiat
Elelu Habeeb
& Anors vs.
the Hon.
Attorney General
of Federation
& Anors
(2012) ALL FWLR
(Pt.629)1011. The case was in
respect of whether the National Judicial Council can participate in
the removal of a Chief Judge from office. MOHAMMED, J.S.C, having
consider the entire provisions of the 1999 Constitution in Sections
153 (1)(i) (2), 271(1), 292(1) (a) (II) and paragraph 21 of part 1
of the Third Schedule to the constitution dealing with
appointments, removal and exercise of disciplinary control over
judicial officers, held that:

“…I entirely agree with the two courts below that having
regard to these relevant provisions of the 1999 Constitution the
Governor of Kwara State and the House of Assembly of the State
cannot remove the Chief Judge of Kwara State from office without
the participation of the National Judicial Council in the
exercise’’. 

The court held the same position in the recent case between
Chief Judge of Kogi State and Governor of Kogi State. Also, the
suspension of the Chief Justice of Nigeria, Walter Onneghen by
the President Buhari which was done without the involvement of the
National Judicial Council is another good example. It is apparently
wrong even though some claimed that suspension is different from
removal and therefore, no need to follow the procedural steps. The
case of the President of the Court of Appeal, Justice Ayo Isa
Salami is another good example.

2– Security
of Tenure: As to security of
tenure, the judges are expected not to be removed from their
offices during a term of office, except for good cause such as an
ethical breach or unfitness. This is because, if any judicial
officer can be easily removed from the office, definitely there
would be too much pressure on them while deciding some cases.
Although in some countries, the entire judiciary will be changed
with the change of the President. In this regard, one of the basic
factors which gives room for executive domination or politicization
of the judiciary is lack of security of tenure.

3– Adequate
Remuneration and
Budgetary Provisions of
Judicial Officers and Other
Staffs: the low level of remuneration often invites the
attention of the judicial officers to get their hands in
corruption. Remuneration of judicial officers at the lower courts
are not attractive, this causes some judges to engage in collecting
bribe from litigants and determine a case in favour of the
litigants without basing their decisions on the facts and laws
presented before them.

For the budgetary provisions, the judiciaries with inadequate
resources who cannot be offered with the salaries, benefits, and
pension needed to attract and retain their integrity, and also, to
curb the likelihood of corruption will definitely involve in taking
a bribe. It is extremely sad, where the judiciary in some states
still depends on the executive and also begs for funds.

Section 162(9) of the constitution provides:
“Any amount
standing to the
credit of the
judiciary in the
Federation Account
shall be paid
directly to the
National Judicial
Councils for
disbursement to
the heads of
courts established
for the
Federation and
the States under
section 6 of
this Constitution.” It is
apparently unfair to hear complaints that a
judiciary’s budget is very inadequate, and that the poor allocation
of resources within the judiciary is a problem leads to the corrupt
practice.

1. Non–Interference
   of Other
   Institutions with
   the judicial
   processes: judicial officers must be given the
   freedom to decide matters before them without any form of pressure
   from whichever angle. It is the duty of the judiciary to decide
   cases impartially, according to the law, and not base its decision
   on the will of any external interferences, influences or pressures.
   It is very saddening to hear that the judgment which is yet to be
   delivered is already known by the party in a case. This is because
   there are some judges who are judicial officers in the day and
   politicians at night. Some judges have even forgotten taking the
   Oath of allegiance and judicial Oath that they will not allow
   interests that inure to them personally to influence their official
   conducts and decisions.

Hon. Justice Oputa in one of his lectures delivered, at Obafemi
Awolowo University said thus:

“Honesty and judicial rectitude are thus, the badge of a
good judge. It is a calamity to have a corrupt judge, for money,
its receipt corrupts and pollutes not only the channel of justice,
but the very stream itself. Honesty and judicial rectitude are
therefore the very minimal requirements of the judicial office.
They snap at and break the brittle bond of confidence, which unite
our citizens with the court system. Thus, scandalized and morally
deformed, bewildered litigants no longer expect from the courts a
just decision. The entire experiment of justice becomes a sham or
at best a counterfeit for nothing is as hateful and as odious as
venal justice.” 

It is also a growing responsibility of private lawyers and Bar
Association to join the judicial officers in combating the corrupt
practice in the judicial system. In some cases handled by a legal
practitioner representing a powerful and influential parties, some
lawyers act as agents of corruption by conveying bribes or offering
some other things to induce the judiciary in order to decide a case
at hand in his favour. Not only this, some legal practitioners make
unlawful accusation of bias or incompetence against the judicial
officers when they lose cases. The Nigerian Bar Association
equally has a strong duty to judicial system by putting an end to
unethical practices and adopts codes of ethics.

It is very essential in curbing corruption in the judiciary to
order the judicial officers to declare their assets. This will
definitely stop judicial officers from being influenced by any
politicians.

In conclusion, independence of the judiciary is a key to reduce
the corruption both within the judiciary and outside. It is a known
fact that, the judicial independence has its origin in the
principle of separation of powers, and as it entrenched in the
Nigerian Constitution, this principle entails that none of the
three arms of government i.e.; Executive, legislature and judiciary
should encroach onto the power of the other. Each pillar has its
own functions which are expected to be carried out independently.
However, the attitude of government towards independence of the
judiciary needs to be improved in order to save the judiciary from
the direct or indirect of the political influences and other
external pressures which give birth to the present level of
corruption in the judicial system. There is a strong need for the
judicial independence in order to locate where corruption resides
and block its ways from coming closer to the judiciary.

By: Y.A, Usman Esq. ( Ar-rohees)
Email: [email protected]^[1].com
Phone: 07033589425

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