Can Judiciary Workers Union Shut Down 3rd Arm Of Government? 2

By Awa Kalu, SAN

In the first installment of this piece we discussed the
fundamentals of judicial power as well as dimensions of strike
action and raised three questions to wit; Who is the employer of
the JUSUN workers who are on strike?;

Are those workers on strike because of a dispute with individual
State governments or with a combination of all State Governments,
or has the strike arisen because of a dispute with the Federal
Government? Also relevant is the question whether the Judicial
staff who are on strike have any condition in their individual or
collective agreement relating to or arising from ‘Judicial
Autonomy’? and Can the judicial apparatus of any state be shut down
for as long as two months because of the quest for Judicial
autonomy as presented by JUSUN, at least publicly?

These questions will now be answered seriatim. According to the
10th edition of the Blacks Law Dictionary; ‘Employer’ means ‘A
person, company or organisation for whom someone works, especially
one who controls and directs a worker under an express or implied
contract of hire and who pays the worker’s salary or wages.’ In
furtherance of the question raised, it must be pointed out that
there are three necessary institutions provided for by the extant
constitution that must, at face value, seem to wear the garb of
‘employer’ either of Federal or State Judiciary workers.

By virtue of Item 21 of Part 1, Schedule 3 to the 1999
Constitution, the National Judicial Council has power to recommend
to the President the removal from office of the judicial officers
specified in sub-paragraph (a) of this paragraph and to exercise
disciplinary control over such officers; recommend to the Governors
from among the list of persons submitted to it by the State
Judicial Service Commissions persons for appointments to the
offices of the Chief Judges of the States and Judges of the High
Courts of the States, the Grand Kadis and Kadis of the Sharia
Courts of Appeal of the States and the Presidents and Judges of the
Customary Courts of Appeal of the States;

(d) recommend to the Governors the removal from the office of
the judicial officers in sub-paragraph © of this paragraph, and to
exercise disciplinary control over such officers. On the other
hand, Item 13 of the same schedule in paragraph C thereof, provides
that the Federal Judicial Service Commission has power to appoint,
dismiss and exercise disciplinary control over the Chief Registrars
and Deputy Chief Registrars of the Supreme Court, the Court of
Appeal, the Federal High Court and all other members of the staff
of the judicial service of the Federation not otherwise specified
in this Constitution and of the Federal Judicial Service
Commission.

Similarly, Item 6 © of Schedule 3 to the 1999 Constitution
provides that the Judicial Service Commission of a State has the
power to appoint, dismiss and exercise disciplinary control over
the Chief Registrar and Deputy Chief Registrar of the High Court,
the Chief Registrars of the Sharia Court of Appeal and Customary
Court of Appeal, Magistrates, Judges and members of Area Courts and
Customary Courts and all other members of the staff of the judicial
service of the State not otherwise specified in this
Constitution.

A combined reading of these statutory provisions reveals that
while the State Judicial Service Commission has the power to advise
the National Judicial Service on persons suitable for appointment
to judicial offices at the state level; the Federal Judicial
Service Commission performs similar functions at the federal level.
Whilst the Federal and State Judicial Service Commission recommend
person suitable for employment into Judicial Offices to the
National Judicial Service Commission, the Judicial Service
Commission in turn recommends to the President for appointment as a
Justice of Superior court of record, from a list of persons
submitted to it by the Federal Judicial Service Commission and also
recommend to State Governors from among the list of Persons
submitted to it by the State Judicial Service Commission, persons
fit for appointment into the State judicial arm of the state.

It is safe to say that by virtue of Item 5(c) of Part II of the
third schedule to the Constitution, the State Judicial Service
Commission has powers to appoint, discipline and exercise
disciplinary control over the Chief Registrar and Deputy Chief
Registrar of the High Court, the Chief Registrars of the Sharia
Court of Appeal and Customary Court of Appeal, Magistrates, Judges
and members of Area Courts and Customary Courts and all other
members of the staff of the judicial service of the state not
otherwise specified in this Constitution.

It is also safe to say that recourse to the phrase; ‘all other
members of the staff of the judicial service of the state not
otherwise specified in this Constitution’.as contained in the item
implies Court clerks, bailiffs, research assistants and all other
Court officials. It is therefore also safe to say that the State
Judicial Service Commission is responsible for the employment and
discipline of State judicial workers.

Similar provision can be found in Item13 ( c) of Part I of the
3rd schedule of the Constitution which provides thus;appoint,
dismiss and exercise disciplinary control over the Chief Registrars
and Deputy Chief Registrars of the Supreme Court, the Court of
Appeal, the Federal High Court and all other members of the staff
of the judicial service of the Federation not otherwise specified
in this Constitution and of the Federal Judicial Service
Commission. It is my opinion that the Federal Judicial Service
Commission is responsible for the appointment, dismissal, and
discipline of judicial workers of superior Courts. Although Item 21
(e) of the 3rd schedule of the Constitution states that the NJC is
empowered to collect, control and disburse all moneys, capital and
recurrent, for the Judiciary.

Based on these provisions, it is almost impossible to dispute
the point that for Federal Judiciary workers, their employer is the
Federal Judicial Service Commission, while it is similarly not in
doubt that for State Judiciary employees, their employer must be
the State Judicial Service Commission. The relevant question which
JUSUN must answer is why the decision was made to shut down the
totality of the Judicial apparatus in this very fragile environment
(at this time) when many Nigerians are presumed to need the
services of “The last hope of the Common man.”

The next question relates to whether the workers went on strike
because of a Dispute with individual State governments or with a
combination of all State Governments, or did the strike arise
because of a Dispute with the Federal Government? Also relevant is
the question, whether the Judicial Staff who are on strike have any
condition in their individual or collective agreement relating to
or arising from ‘Judicial Autonomy’? The answer must similarly be
obvious, since it has been said that the disputants ought to have
been Judiciary workers versus a combination of State Judicial
Service Commissions.

The importance of the Judiciary as a branch of government was
emphasized as far back as 1962 in the following words: ‘Section 21,
subsection (1) of the Constitution is important in that it confers
on every person with a grievance the right of access to recourse to
the Courts. The section makes it practically impossible for the
doors of the Court to be shut against anyone desiring to take his
grievances there… it acts as a bulwark against the tendency to
prohibit or oust the jurisdiction of the Courts where there has
been either an infringement of a civil right or an imposition of
civil obligation. ( Udoma JSC, (as he then was) in Burma v. Sarki
(1962) All N.L.R 772 @ 780). If as was suggested in that decision,
it was wrong for anybody to be shut out from a desired approach to
the judiciary, why must it be done by resort to a strike?

While it is necessary to commend JUSUN for calling off their
prolonged strike, the gratuitous advice which must be provided is
that in the future, the JUSUN must evaluate what has happened in
the past two months and use the outcome to determine the value or
weight to be placed on any decision to shut down the judicial
apparatus which inevitably is the essence of the third arm of
government. The independence of the Judiciary cannot be questioned,
but it is also on its own, a process that must be garnered and
nurtured.

By Awa Kalu, SAN

In the first installment of this piece we discussed the
fundamentals of judicial power as well as dimensions of strike
action and raised three questions to wit; Who is the employer of
the JUSUN workers who are on strike?;

Are those workers on strike because of a dispute with individual
State governments or with a combination of all State Governments,
or has the strike arisen because of a dispute with the Federal
Government? Also relevant is the question whether the Judicial
staff who are on strike have any condition in their individual or
collective agreement relating to or arising from ‘Judicial
Autonomy’? and Can the judicial apparatus of any state be shut down
for as long as two months because of the quest for Judicial
autonomy as presented by JUSUN, at least publicly?

These questions will now be answered seriatim. According to the
10th edition of the Blacks Law Dictionary; ‘Employer’ means ‘A
person, company or organisation for whom someone works, especially
one who controls and directs a worker under an express or implied
contract of hire and who pays the worker’s salary or wages.’ In
furtherance of the question raised, it must be pointed out that
there are three necessary institutions provided for by the extant
constitution that must, at face value, seem to wear the garb of
‘employer’ either of Federal or State Judiciary workers.

By virtue of Item 21 of Part 1, Schedule 3 to the 1999
Constitution, the National Judicial Council has power to recommend
to the President the removal from office of the judicial officers
specified in sub-paragraph (a) of this paragraph and to exercise
disciplinary control over such officers; recommend to the Governors
from among the list of persons submitted to it by the State
Judicial Service Commissions persons for appointments to the
offices of the Chief Judges of the States and Judges of the High
Courts of the States, the Grand Kadis and Kadis of the Sharia
Courts of Appeal of the States and the Presidents and Judges of the
Customary Courts of Appeal of the States;

(d) recommend to the Governors the removal from the office of
the judicial officers in sub-paragraph © of this paragraph, and to
exercise disciplinary control over such officers. On the other
hand, Item 13 of the same schedule in paragraph C thereof, provides
that the Federal Judicial Service Commission has power to appoint,
dismiss and exercise disciplinary control over the Chief Registrars
and Deputy Chief Registrars of the Supreme Court, the Court of
Appeal, the Federal High Court and all other members of the staff
of the judicial service of the Federation not otherwise specified
in this Constitution and of the Federal Judicial Service
Commission.

Similarly, Item 6 © of Schedule 3 to the 1999 Constitution
provides that the Judicial Service Commission of a State has the
power to appoint, dismiss and exercise disciplinary control over
the Chief Registrar and Deputy Chief Registrar of the High Court,
the Chief Registrars of the Sharia Court of Appeal and Customary
Court of Appeal, Magistrates, Judges and members of Area Courts and
Customary Courts and all other members of the staff of the judicial
service of the State not otherwise specified in this
Constitution.

A combined reading of these statutory provisions reveals that
while the State Judicial Service Commission has the power to advise
the National Judicial Service on persons suitable for appointment
to judicial offices at the state level; the Federal Judicial
Service Commission performs similar functions at the federal level.
Whilst the Federal and State Judicial Service Commission recommend
person suitable for employment into Judicial Offices to the
National Judicial Service Commission, the Judicial Service
Commission in turn recommends to the President for appointment as a
Justice of Superior court of record, from a list of persons
submitted to it by the Federal Judicial Service Commission and also
recommend to State Governors from among the list of Persons
submitted to it by the State Judicial Service Commission, persons
fit for appointment into the State judicial arm of the state.

It is safe to say that by virtue of Item 5(c) of Part II of the
third schedule to the Constitution, the State Judicial Service
Commission has powers to appoint, discipline and exercise
disciplinary control over the Chief Registrar and Deputy Chief
Registrar of the High Court, the Chief Registrars of the Sharia
Court of Appeal and Customary Court of Appeal, Magistrates, Judges
and members of Area Courts and Customary Courts and all other
members of the staff of the judicial service of the state not
otherwise specified in this Constitution.

It is also safe to say that recourse to the phrase; ‘all other
members of the staff of the judicial service of the state not
otherwise specified in this Constitution’.as contained in the item
implies Court clerks, bailiffs, research assistants and all other
Court officials. It is therefore also safe to say that the State
Judicial Service Commission is responsible for the employment and
discipline of State judicial workers.

Similar provision can be found in Item13 ( c) of Part I of the
3rd schedule of the Constitution which provides thus;appoint,
dismiss and exercise disciplinary control over the Chief Registrars
and Deputy Chief Registrars of the Supreme Court, the Court of
Appeal, the Federal High Court and all other members of the staff
of the judicial service of the Federation not otherwise specified
in this Constitution and of the Federal Judicial Service
Commission. It is my opinion that the Federal Judicial Service
Commission is responsible for the appointment, dismissal, and
discipline of judicial workers of superior Courts. Although Item 21
(e) of the 3rd schedule of the Constitution states that the NJC is
empowered to collect, control and disburse all moneys, capital and
recurrent, for the Judiciary.

Based on these provisions, it is almost impossible to dispute
the point that for Federal Judiciary workers, their employer is the
Federal Judicial Service Commission, while it is similarly not in
doubt that for State Judiciary employees, their employer must be
the State Judicial Service Commission. The relevant question which
JUSUN must answer is why the decision was made to shut down the
totality of the Judicial apparatus in this very fragile environment
(at this time) when many Nigerians are presumed to need the
services of “The last hope of the Common man.”

The next question relates to whether the workers went on strike
because of a Dispute with individual State governments or with a
combination of all State Governments, or did the strike arise
because of a Dispute with the Federal Government? Also relevant is
the question, whether the Judicial Staff who are on strike have any
condition in their individual or collective agreement relating to
or arising from ‘Judicial Autonomy’? The answer must similarly be
obvious, since it has been said that the disputants ought to have
been Judiciary workers versus a combination of State Judicial
Service Commissions.

The importance of the Judiciary as a branch of government was
emphasized as far back as 1962 in the following words: ‘Section 21,
subsection (1) of the Constitution is important in that it confers
on every person with a grievance the right of access to recourse to
the Courts. The section makes it practically impossible for the
doors of the Court to be shut against anyone desiring to take his
grievances there… it acts as a bulwark against the tendency to
prohibit or oust the jurisdiction of the Courts where there has
been either an infringement of a civil right or an imposition of
civil obligation. ( Udoma JSC, (as he then was) in Burma v. Sarki
(1962) All N.L.R 772 @ 780). If as was suggested in that decision,
it was wrong for anybody to be shut out from a desired approach to
the judiciary, why must it be done by resort to a strike?

While it is necessary to commend JUSUN for calling off their
prolonged strike, the gratuitous advice which must be provided is
that in the future, the JUSUN must evaluate what has happened in
the past two months and use the outcome to determine the value or
weight to be placed on any decision to shut down the judicial
apparatus which inevitably is the essence of the third arm of
government. The independence of the Judiciary cannot be questioned,
but it is also on its own, a process that must be garnered and
nurtured.