Democracy Without Independence Of Judiciary – TheNigerialawyer

TWENTY odd years into the Fourth Republic, democracy is still
taking baby steps. On a dispiriting note, the country’s chief
jurist has reopened the long-running debate on the perceived lack
of independence of the judiciary. The insight from Mohammed Tanko,
the Chief Justice of Nigeria, alluding to the fact that the
judiciary is still beholden to the executive arm of government for
its basic operations, puts our democracy on a wobbly ground.

For a long time, there had been a notion that the judiciary
could be influenced – either by government’s strong-arm tactics or
by crooked litigants, particularly desperate politicians. This
dispensation has witnessed the best and the worst of the bench,
most often in election cases. The late Supreme Court jurist, Kayode
Eso, once described some judges who handled election cases as
“billionaire judges.” In a particular case, a CJN asked a president
of the Court of Appeal to “arrest” the judgement of a governorship
contest in a Northern state.

Determined to turn the tables, Tanko, at the special court
session marking the commencement of the 2019/20 legal year,
advocated a new paradigm. Hinging his position on the current
template in which the bench waits interminably on the executive to
survive, Tanko, who assumed office early this year, reawakened an
old debate on the abridgement of financial freedom of the
judiciary, which is fundamentally at the heart of its
independence.

Forthrightly, he argued, “If you say that I am independent, but
in a way, whether I like it or not, I have to go cap in hand asking
for funds to run my office, then I have completely lost my
independence. It is like saying a cow is free to graze about in the
meadow but at the same time, tying it firmly to a tree. Where is
the freedom? Be that as it may, when we assess the judiciary from
the financial perspective, how free can we say we are?” This is
sobering.

Back in August, Tanko had initially expressed strong
reservations about the plight of the judiciary. He had stated, “If
you say that I am independent, but in a way, whether I like it or
not, I have to go and bend down, asking (for funds), I have lost my
independence.” Undoubtedly, no judiciary can prove its mettle under
this cloud.

In theory, there is separation of powers among the three arms of
government – the executive, legislature and judiciary. This ought
to cushion the interference among the arms, but with the executive
controlling the purse strings, this independence is a mirage.
Subtly, the executive exploits this to control the judiciary. The
salaries and budgetary allocations of judges are poor, Tanko
affirmed.

Although judges deserve equitable treatment, the executive makes
a fanfare whenever it undertakes any project for the bench. As
such, governors can heavily publicise the procurement of cars for
judges. At times, when they refurbish, build or equip courthouses,
they make a meal of it. In September, Ondo State governor, Rotimi
Akeredolu, demonstrated this when the state presented 20 sport
utility vehicles to its judges. This is belittling for the judges.
The governor, his cabinet members and aides use these vehicles
without any grandiose noise being made about it.

Unfortunately, this absurdity is familiar. Past CJNs had also
lamented the incapacitation the judiciary was suffering. In 2013,
Mariam Aloma-Mukhtar, the then CJN, expressed reservations about
it. She said, “Statistics have shown that funding from the Federal
Government has witnessed a steady decline since 2010 from N95
billion in that year to N85 billion in 2011, then N75 billion in
2012 and dropped again in the 2013 budget to N67 billion.”

Conversely, in the United States, once the Congress appropriates
the funding for the American judiciary, the money goes directly to
it after being signed off by the president. The practice there is
to present the budget proposals a year ahead, just like the rest of
the American budget, which gives the stakeholders the time to work
on the process.

Positively, things might have eased a bit marginally under
Buhari, but it is not fundamental. In March 2018, Walter Onnoghen,
Tanko’s predecessor, said the independence of the judiciary was
dependent on the level of funding received. “The issue of adequate
funding at the state level is one of the greatest challenges
confronting the judiciary of this nation,” he said.

To strengthen democracy, the executive should treat the
judiciary, as it does the legislature. Already, the National
Assembly has unyoked itself – and the judiciary supposedly – from
the clutches of the executive with the First Alteration Act 2010.
In Section 6, the Act amended Section 81 (3) of the 1999
Constitution by elevating the Independent National Electoral
Commission, NASS and the judiciary to First Line Charge.

It means the funding for these federal organs go directly to
them. In apparent recognition that this is lacking at the state
tier, President Muhammadu Buhari, in June, assented to the Fourth
Alteration Act, which grants financial autonomy to the state
judiciary and legislature. (The Niger Delta Development Commission,
the Public Complaints Commission, the Universal Basic Education
Commission and the National Human Rights Commission are also
enjoying this status.)

It is a vital step aimed at enhancing the independence of the
judiciary, but obviously, it seems to be only on paper. Otherwise,
the persistent complaints of financial bondage would have abated.
Therefore, the three arms of government have to interrogate the
reasons why the law is not working for the judiciary as it is
effectively doing for NASS. Is it that the legislature is more
powerful or more important than the judiciary? This cannot be the
case, for the judiciary is a separate arm of government, which has
the power to override both the executive and legislature, and
deliver the rule of law and give justice to the common person.

Culled from Punch EDITORIAL