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Toying with judicial independence

Our form of government rests on the tripod of executive, legislature and the judiciary. Our democracy is built on these three pillars. A weakness in…

Our form of government rests on the tripod of executive, legislature and the judiciary. Our democracy is built on these three pillars. A weakness in one is a weakness in the whole edifice of democracy. But power being what it is, the executive branch sees itself as the first among equals. It is what we see as the government. It controls the national purse and uses this power to undermine or weaken the other two branches of government as it suits its purpose, which is always more self-serving than edifying

The judiciary, being the most passive among the three branches, is treated more or less as an after-thought by the executive and denied the right to control its vote. All our presidents and all our state governors chose to keep the judiciary on a short leash, weaken its independence and bank on the principle that the weak being no threat to the strong, it is bound to do the bidding of the strong. We have men and women sitting on the bench at federal and state levels who are self-schooled on the principle that the weak survives by being good boys and good girls.

In the nature of our circular national development, it is not so strange that all the talks about the financial independence of the judiciary have left little impression on the executive branch of government. Financial independence for the judiciary was one of the hot subjects that aroused the passion of the constituent assembly in 1978.

The hot and impassioned debate changed nothing. The status quote continues to be oiled, taking something away from the independence of the judiciary, which, by the way, is actually the most powerful of the three branches in that it is the only branch of government empowered to decide on what is legal and constitutional and which side is right in all arguments brought before it.

All men and women of power, for which read, politicians, love to hate the judiciary because it is the only bulwark we know that stands in the way of arbitrariness, power drunkenness, autocracy and incipient dictatorship. Warts and all, it is still unarguably and most importantly, the temple of justice and the refuge for refugees fleeing the injustice of their governments, the rich and the powerful.

Years of weakening the judiciary by denying it financial independence in order to keep it on a short leash by the executive branch, led to this. The Supreme Court held a special session of the court to mark the commencement of the 2019/2020 legal year on September 23, 2019. In his address to the august body of the benchers and the bar, the Chief Justice of Nigeria, Justice Ibrahim Muhammad, exposed the faux independence of the Nigerian judiciary.

He said that “…when we assess the judiciary from financial perspective, how free can we say we are? The annual budget of the judiciary is still a far cry from what it ought to be. The figure is either stagnated for a long period or it goes on progressive decline. 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.

“The gross under-funding and neglect of the judiciary over the years have impacted negatively on the infrastructure and personnel within the system. It is to a large extent, affecting productivity, increasing frustration and deflating morale.

“The constitution provides for separation of power and independence of the three arms of government. I am using this medium to appeal to governments at all levels to free the judiciary from the financial bondage it has been subjected to over the years.”

I would not know if the situation has substantially improved at the federal level since the CJN spoke that bitter truth to power with an uncommon courage not usually associated with those who sit on the bench – as if they are primary school pupils – but President Muhammadu Buhari took a step last year “to free the judiciary from the financial bondage it has been subjected to over the years.”

On May 22, 2020, he signed Executive Order 10 of 2020 as a legal instrument compelling the state governments to provide for financial autonomy for the state legislature and the state judiciary. The executive order was hailed as the unshackling of the judiciary at long, long last. It was billed to come into effect in May that year. But it did not. The state governors ignored it. That, in turn, led to the current strike by the Judiciary Staff Union of Nigeria to demand that the full respect for the constitutional provision for financial independence for the  judiciary at federal and state levels. This goes beyond the Executive Order 10 of 2020. The state governors appear to have given in and decided to implement the executive order from May this year.

This may or may not be the end of the financially independent but dependent state judiciaries. The problem is not the absence of laws or constitutional provisions imposing on the executive branch the duty of making the judiciary financially independent to prevent the pathetic disgrace of the CJN and the state chief judges prowling the corridors of the government house, begging bowls in hand, asking to be given what the constitution has provided for them. The problem, and it is a huge one, is the unwillingness of our great rulers to obey the provisions of the constitution to ensure a smooth and hitch-free operation of our system of government.

Executive Order 10 of 2020 is well-meant but it is actually a superfluous piece of legal chicanery that merely piles on the faux financial independence of the judiciary at the state level and not likely to change anything that much, given the mindset of the thingamabobs in the governors’ mansions. It is even naïve to hail it as the dawn of  financial independence for the state judiciaries. One would wish it was but wishes are not, remember, horses. And so, we go round and round, substituting motion for movement.

I have read an impressive analysis of Executive Order 10 of 2020 by Chinedu Nneke, a senior associate in Olisa Agbakoba chambers against the constitutional provisions on the same issues the order purports to tackle. Nneke cited sections 80, 81 and 84 of the constitution to show that we have enough provisions in the number one legal document to ensure the financial independence of the judiciary. The problem is that the big men do not want it because a financially independent judiciary is a clear threat to their cynical manipulation of the rule of law to protect and advance their political and other interests. I thought it was the lack of will on their part to implement what is clearly incumbent on them so to do but I have thought better of it.

It makes me wonder about the real objective of Executive Order 10 of 2020. The president did not wake up to suddenly find that the state chief judges, like the CJN, do not carry law books but begging bowls. Is the order to force the state governors to do what the constitution obliges them to do or for the president to assume the power to free the state judiciaries from their financial dependence on the state executive branch? Does it represent a movement away from what it is towards what it should be or mere a feel-good motion sans movement?

Whatever might be the answers to those questions, there is no denying that successive presidents and state governors have, without any qualms, violated the constitutional provisions that clearly and unambiguously recognise the place of a financially independent judiciary in a democracy. Those who think this would be the watershed in the financial independence of the state judiciaries would do well to temper their conclusion with this piece of fact.

Nneke thinks “it is even hypocritic(al) of the Federal Executive to seek enforcement of financial independence of judiciary and legislature at the state level while impinging on the independence of the judiciary at the federal level.”

Charity failed to begin at home.

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