The Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, recently expressed dismay over what he described as politicians’ undue interference in the process of judges’ appointment. He lamented that the current system of judges’ appointment in the country is such that the governor of a state does not allow the names of persons nominated for judicial appointment to be sent to the National Judicial Council for scrutiny if the names of the governor’s candidates are not included on the list.
The consequence, Onnoghen said, is that the nation’s Judiciary is populated by men and women highly deficient in integrity and job performance. The CJN’s outburst is a reminder of the nominal role the National Judicial Council (NJC) plays as the apex body of the nation’s judiciary despite that it is one of the agencies of government created by virtue of Section 153 of the 1999 Constitution (as amended).
By the provisions of Paragraph 21 of Part One of the Third Schedule to the 1999 Constitution (as amended), the NJC has power to recommend to governors for appointment, persons from among the list of individuals submitted to it by the state judicial service commissions, to the offices of the Chief Judges of the states, judges of the High Courts of the states, Grand Kadis of the Sharia Courts of Appeal of the states, as well as President and judges of the Customary Court of Appeal of the states. More importantly, the council is enjoined by subsection (e) of the above provisions to collect, control and disburse all the monies, capital and recurrent, for the judiciary.
Sadly, the council has only been able to carry out the implementation of this mandate for the federal judiciary and not at the state level. As important as the judiciary is to the sustenance of the rule of law and democracy, it is the most vulnerable of the three arms of government. It always depends on the other arms to perform its functions. For instance, it has no exclusive control over who becomes a judicial officer, the removal of judicial officers and the powers of the purse.
Section 17 (2) (e) provides that the independence, impartiality and integrity of courts of law and easy accessibility shall be secured and guaranteed. For the judiciary to perform optimally as provided for in this section of the constitution, it should have an appreciable level of financial autonomy and independence.
This is the challenge the judicial arm is forced to grapple with as it strives to guard its independence. In our view, the judicial set-up in Nigeria does not ensure the needed independence for the judiciary to perform its functions impartially. This takes a leap from the processes of appointment of judges, dismissal of judges, funding and the general conditions of service of judicial officers and personnel, which are basically left in the hands of the executive.
Although Sections 84 (2) (4) (7) and 121 (3) of the constitution ostensibly grants financial autonomy to the Judiciary by providing that the recurrent expenditure of judicial officers of the Federation and the States shall be a charge upon the Consolidated Revenue Fund of the Federation or State, there does not appear to be any provision in the constitution that specifically ensures the proviso of capital expenditure for the Judiciary. Section 121 (3) of the 1999 Constitution unequivocally states: “Any amount standing to the credit of the Judiciary in the consolidated revenue fund of the state shall be paid directly to the heads of the courts concerned”. But no governor in Nigeria has ever observed this provision.
In our opinion, it is an unacceptable interference in judicial processes for the executive to hold fast to its independence and the legislature, which makes laws on the disbursement of revenue thereby giving both arms powers to always vote what they want for themselves, while the judiciary, the third arm, is only allocated what the first two arms deem fit. It leaves the judiciary in a position of going on bended knees to request for whatever it needs with all the implications of manipulation embedded in that process.
It is the view of this newspaper that except the independence and autonomy of the judiciary are truly guaranteed and upheld, which will require the full powers of reward and punishment of judicial officers to be vested in the judiciary, the issue of interference and politicisation of appointment of judges would never be eliminated. It poses a serious threat to the principle of rule of law on which democracy itself stands.
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