The Endless Search For An Independent Judiciary

By Raymond Nkannebe

Whatever was achieved by the blistering remarks of the Honourable Chief Justice of the Federation, My Lord Tanko Mohammed during his keynote address at the just concluded 59th Annual General Conference of the Nigerian Bar Association (NBA) was watered down in some sense by the comments of another Judicial officer, namely, the Chief Judge of Edo State- Hon. Justice Esohe Frances Ikponmwen in a disguised traverse that left behind a huge question mark on the independence of the Nigerian judiciary as well as shape the topic of today’s intervention.
While addressing that August body of Lawyers, the CJN, thundered to the cheer of the audience, “if there is any deity to fear, it is God. We don’t look at any person’s face in giving our decisions”.

It was a good statement at least for the optics coming from a judicial officer with a high dose of negative public perception considering the circumstances that brought him onto the headmanship of the Nigerian Judiciary. No one can say however whether the erudite jurist was merely playing to the gallery so as to win back the confidence of his primary constituency-the legal community, or giving a sense of the roadmap of the judiciary under his control.

But whatever the reason was, it was soon to be deflected. At the session that beamed searchlight on the controversial role of the CCB and executive control over it, with an apt title: CODE OF CONDUCT TRIBUNAL: A CLASH OF JUDICIAL AND EXECUTIVE POWERS which had renowned rights activist Mike Ozekhome, SAN and Ebun-Ola Adegboruwa, SAN. in the panel among others, the debate turned on the circumstances surrounding the removal of the former CJN, Walter Samuel Nkanu Onnoghen along the lines of whether the CCT had the jurisdiction to have prosecuted the eminent jurist having made an acknowledgement of his ommission to properly fill his Assets Declaration Forms, or whether the body was bent on doing the bidding of certain elements within the presidency, and thus shunning due process in the exercise of its powers in the particular instance of the former CJN. In a nutshell, it was a discourse on the extent of executive control of the Judicial arm of government.

At the concluding phase of the session, and while reacting to an admonition on the judiciary not to be timid in the discharge of their duties by Mike Ozekhome; SAN, the Chief Judge of Edo State threw the gauntlet back at the lawyers. In her opinion, the problem sits with lawyers who have failed to make a strong case for the autonomy of the Judiciary and have oftentimes meddled in political matters with the judiciary, thus leaving them at the mercy of the executive arm.

In her unmistakable words which unsettled not a few, “if lawyers stop playing politics with Judicial matters, the judges will be courageous. How can you fight against someone who gives you what you eat?”
As the audience erupted in both disbelief and applause, it was evident that the senior judicial officer had just struck at the heart of the matter and the sum of her commentary found root in the aphorism: he who calls the Piper dictates the tune.

Hon. Justice Ikponmwen Frances has been around for sometime as the Americans say, as not to know what she’s talking about. Having risen to the exalted seat of the Chief Judge of a state, it could be contended with some degree of certainty that she has access to certain classified information that shaped her strident remarks the other day at that conclave of lawyers who converged on Lagos to ruminate on ideas towards “Facing the Future”.

Implicit in Justice Frances’ commentary irrespective of the assurances of the Honourable CJN in his earlier remarks, is that the independence of the Nigerian Judiciary continues to hang in a balance. Thankfully, the Lady Justice did not embark on an exculpatory expedition to save members of her constituency. Not at all. She laid the problem right where it belongs: the bench and the bar as it stands to reason that the only gateway of the political class to members of the judiciary, is through the lawyers who prosecute cases on their behalf. Thus, any attempt at enhancing the independence of the judiciary must commence from members of the bar, especially their senior counterparts who help most often than not, to broker the deals upon which judicial independence is sacrificed.

From the political spectrum, it is easy to observe that at no time in the recent history of Nigeria has the time honoured concept of independence of the judiciary been abused than under the incumbent president Muhammadu Buhari. As far back as the busting of the home of senior judicial officers in Gestapo style in the first term of the Buhari administration and subsequently, the subterranean and high wired politicking that saw to the controversial sacking of the former Chief Justice of Nigeria; and not forgetting the administration’s disturbing attitude towards positive orders of courts of competent jurisdiction, the public mood is that the Nigerian Judiciary under president Muhammadu Buhari is under seige, and the individual judge must do the bidding of the “powers that be” in order to keep his job. This perception understandably may be wrong, but unfortunately, it is so well received that it has shaped the reality of many Nigerians as well as watchers of socio-political events in the Country.

At an auspicious moment such as now when the Presidential Election Petition Court as well as several other Election Petition Tribunals are set to deliver judgements arising from petitions that dogged the last general elections, it can be said that the independence of the judiciary is once again open to test. Given what one knows, it is not out of place to suggest that too many a judicial officer are once again under pressure from political quarters.
In fairness to the hierarchy of the judiciary, they are in a very difficult position where irrespective of the decisions they reach, they’ll still be accused of having compromised their Judicial aloofness. But that should not deter them from delivering judgements that accords with the extant position of the law and the facts of the individual case; as that is only where their conscience can be vindicated irrespective of the criticism that trail their decisions.

And so while this writer agrees with the Hon. Chief Judge of Edo State that lawyers are also to be blamed for the erosion of the independence of the judiciary, it must be pointed out that lawyers and judges are two separate species of worshippers in the temple of Justice. While lawyers must at all times preserve the integrity of the Courts, yet, it is members of the judiciary who enjoy the honor of the bench that must go out of their way to ensure the preservation of the institution of the judiciary irrespective of the conduct of counsel. It is not enough to go to bed with the politicians simply because the lawyers themselves have failed to keep their part of the bargain. That would be a simplistic justification for a misnomer that strikes at the fabric of any nation. Consequently, where lawyers go astray, judges must be firm conscious of the fact that they hold a sacred office tied to the civil liberties of the citizenry.

They must draw inspiration from the admonition of the late erudite jurist, Niki Tobi on the relationship between the judge and the politician and I dare say that the wise counsel extends to their relationship with other segments of the society. In the words of the judicial colossus in a very famous case:
“I see from Exhibit EP2/34 the need for Nigerian Judges to maintain a very big distance from politics and politicians. Our constitution forbids any mingling. As Judges, we must obey the constitution. The two professions do not meet and will never meet at all in our democracy in the discharge of their functions. While politics as a profession is fully and totally based on partiality, most of the time. Judgeship as a profession is fully and totally based on impartiality, the opposite of partiality. Bias is the trade mark of politicians. Non-bias is the trade mark of the Judge.

That again creates a scenario of superlatives in the realm of opposites. Therefore the expressions, “politician” and “Judge” are opposites, so to say, in their functional contents as above; though not in their ordinary dictionary meaning. Their waters never meet in the same way Rivers Niger and Benue meets at the confluence near Lokoja. If they meet, the victim will be democracy most of the time and that will be bad for sovereign Nigeria. And so Judges should, on no account, dance to the music played by politicians because that will completely destroy their role as independent umpires in the judicial process. Let no Judge flirt with politicians in the performance of their constitutional adjudicatory functions. When I say this, I must also say that I have nothing against politicians. They are our brothers and sisters in our homes. One can hardly find in any Nigerian community or family without them. There cannot be democracy without them and we need democracy; not despotism, oligarchy and totalitarianism. They are jolly good fellows.

The only point I am making is that their professional tools are different from ours and the Nigerian Judge should know this before he finds himself or falls into a mirage where he cannot retrace his steps to administer justice. That type of misfortune can fall on him if the National Judicial Council gets annoyed of his conduct. Ours are not theirs. Theirs are not ours. I will not say more. I will not say less too. So be it.”

Those words could not have been better said. And so, as politicians will continue to be what they are, deploying every Machiavellian means to get their biddings done, the judiciary must learn to be firm irrespective of the pressure, because when all other things fail, it is to the same judiciary that every democracy bow to for direction. The words of the CJN Tanko Mohammed are therefore reassuring, but like every other word of mouth, it is expected that the decisions handed down by the Supreme Court and the other courts in the lower rungs of the Judicial ladder will be reflective of that audacious declaration as we continue the search for a more independent judiciary.

–Nkannebe, esq, a legal practitioner writes from Lagos