In this modern era, the legal framework of every system of government across the globe has embedded judicial independence as its core value. Irrespective of the governance system put in place, every nation has a theoretical administration of justice system free from executive, legislative and other state actors’ interference.
The Islamic Republic of Iran, the Russian Federation, the Democratic People’s Republic of Korea and other one-party states are not left out in the enshrinement of judicial independence in their constitutional framework, in semblance to the democratic practice in the United States of America, the United Kingdom, France and other nations which pride themselves as the beacons of democracy.
However, judicial independence transcends legislative enactments or codification of laws, which guarantee the court and its proceedings from the executive or legislative whims and caprices. In practice, the core principle of judicial autonomy is attainable through a decentralised power-sharing legal system amongst government institutions. Likewise, the process by which the executive and legislative powers are attained must be free, fair, and transparent and also represent the people’s mandate.
A codified procedure for administering an impartial justice system doesn’t necessarily transform into judicial autonomy. It is an illusion that the political system of government, which ushers in its political leaders outside democratic norms as practised in Iran, Russia and North Korea, could operate a judicial institution that is not under the thumb of the executive arm.
Although Chapter 11, Article 156 of the Iranian constitution refers to its judiciary as independent, and Chapter 7, Article 120 of the 1993 Russian constitution, as amended in 2014, describes its judiciary as immune to political influence, and Article 166 of the 1972 North Korean constitution, as amended in 2016, guarantees impartiality in legal proceedings. In the real sense, the judiciary is merely an extension of political machinery to bolster and enforce the executive proclamations in these one-party states.
Since the transition of democracy to Nigeria in 1999, the country’s judicial institution has been framed as independent through several constitutional provisions. Amongst the legal provisions which guarantee judicial independence are Sections 17(2)(e), 231, 238, 250, 256, 292, 81(3) and 121(3) of the 1999 constitution, as amended. The country’s grundnorm, though, attributed autonomous elegance to its judicial institution. In actual practice, Nigeria’s judicial institution is currently more susceptible to political control and undue influence than ever.
In times past, particularly during the Nigerian military regime, the judicial institution held its head high and vehemently resisted the subjugation of judicial powers under political control. Many locus classicus cases affirmed judicial independence during the military regime. In Lekanmi v. AG (Western State) 1970, the Supreme Court upheld individuals’ rights to property and declared seizure of private property without due process as unconstitutional. In Agbaje v. Commissioner of Police 1969, the apex court affirmed the right to personal liberty and declared the appellant’s long detention as ultra vires.
The referenced case law is just a drop in the ocean of impartially adjudicated cases during the military regime. Despite the issuance of draconian decrees to undermine the judiciary, the institution maintained its powers. In the current political dispensation, any Tom, Dick, or Harry political office holder could improperly employ the service of magistrates/judges to do their bidding. Reckless detention orders, catch-and-carry ex parte orders and traded verdicts have become the new norms, although a few judges still stand out and maintain judicial integrity, sacredness and fairness.
The biggest threat to Nigeria’s judiciary is the excessive concentration of power in the executive. The country urgently needs an overhaul of the structural political system, which practically gives the judicial institution financial autonomy, apolitical appointments and disciplinary processes, guaranteed security of tenure for judges, adequate remuneration and freedom from politically induced transfer and other politically orchestrated sanctions.
Beyond the amendment on the institutional power-sharing formula, the country’s electioneering process must conform to international democratic practices to guarantee judicial autonomy. Any government or political leader who forcefully takes over political power through a pseudo-electoral process, as is commonly practised under the current political system, would always disregard and undermine the judiciary. A government without the people’s mandate usually formulates autocracy as state policy.
Binzak Azeez is a partner at Law Fortress Attorneys, Osogbo.
