Effects of Payload on Average Node Life Time and Throughput

68 that classical federalism is hardly found in practice anywhere. Each Country adapts to a model of federalism that responds to its needs and circumstances. Thus in the search for judicial integrity or other legitimate concerns, Nigeria is free to and has departed from classical models of federalism. Again, greater unitary practices are evident not just in the organization of the judicature but in many other facets of Nigeria‟s constitutional life perhaps as a logical consequence of administration. After a history of military administration spanning more than a half of its post-independence history, there are inevitable imprints of the centripetal tendency of military style of governance and where these imprints are of practical value to legal and political developments, they should not be sacrificed. The objectives which the NJC is designed to achieve, far outweighs any objection that may be raised on the basis of departure from federal theories.

Although the National Judicial Council is described by the heading of the segment of the Constitution under which it is established as well as the marginal note to the section that establishes it as „federal executive body‟, this description can only be for linguistic convenience. It is trite that the marginal note will not be invoked to alter the clear meaning of words used in a statute. The Council is not an executive body in the sense that it belongs to the executive branch of government. Its description as executive is only an indication that it does not act in a judicial or legislative capacity. It is an executive instrument of the judicature. This need not be laboured as a glance in its composition reveals that it is dominated by judicial (and not executive) officials. Again, the true nature of the body is that it is national and not federal body. That is, it is not strictly an agent of the federal government. Rather, it is a common agency. In this connection, it has been observed that:

When it [the NJC] exercises its duty in Paragraph 21(a) and (b) [of Part 1 of the third Schedule 1999 Constitution] it is an agent of the Federal Government. While if it discharges the obligations in Par 2 (c) and (d) above, it will metamorphose into an agent of State Government.¹⁰⁰

69 3.3.1 United States of America

The researcher will discuss the judiciary under the United States Constitution by looking at the explicit provisions which relate to judicial compensation (The Compensation Clause), tenure of judicial office (the Tenure Clause), and judicial selection (The Appointments Clause). The primary emphasis will be upon the applicable provisions of the United States Constitution because that Constitution provides a more effective basis for judicial independence than the State Constitutions within the United States (United States). The State Constitutions differ drastically in their provisions for the judicial branch of government, therefore, generalizations regarding the specific characteristics of state constitution concerning judicial independence are not possible. These basic characteristics of the American Constitution regarding judicial independence include:¹⁰¹

a. The Compensation Clause

The compensation clause provides that: The judges, both of the supreme and inferior courts……. shall, at stated times receive for their services, a compensation, which shall not be diminished during their continuance in office.¹⁰²The purpose of this clause was to prevent the Congress from tampering with the judges‟ salaries as a means of diminishing the authority of the judicial branch of government as on balance, the power to diminish judicial salaries create the most danger to an independent judiciary.¹⁰³ The Framers‟ purpose in drafting the compensation clause was to preserve judicial independence. The issue of compensation does not apply in Nigeria.

b. The Tenure Clause and the Doctrine of Judicial Immunity

The Tenure clause of the US Constitution provides that the judges both of the supreme and inferior courts, shall hold their offices during good behavior…….¹⁰⁴Much if not all, of the discussion concerning the compensation clause is applicable to the Tenure Clause. As pointed out by the Court of Claims in Atkins v United States:¹⁰⁵

101 CD Cole, “Judicial Independence in the United States Federal Courts, 2008 Journal of the Legal Profession

<http.//vol.13art08.pdf.html accessed on 5 August 2015.

102 United States Constitution 1787 art. III s. 1

103 Ibid in 1776 the contineatial Congress had complained, in the Declaration of Independence, that George III had made colonial judges dependant upon him for both tenure and compensation as a means to extend his rule over the colonies.

104 US Constitution art III s. 1

105 Ibid p. 193

70 Long ago Justice Story noted the integral relationship of the Compensation

clause and the Tenure clause, the latter securing to judges…. their continuance in office “during good behavior” Without the one provision, he said, guaranteeing an undiminished compensation, „the other, as to the tenure of office, would have been utterly nugatory, and indeed a mere mockery…….” The two clauses are inextricably tied to one another in pursuit of securing judicial independence and to allow the indirect diminution of judges‟ salaries to accomplish what the political branches are forbidden to do directly under the tenure clause would be to sanction a deplorable ruse at the expenses of constitutional principle.

The independence created by allowing judges to continue in office during good behavior has historically constituted virtual life- tenure. Virtual life-tenure in judicial office facilitates and assures independent judicial decisions. Coming to the aspect of judicial immunity, in the United States, the Supreme Court recognized the doctrine of judicial immunity in 1871, asserting that:

It is a general principle of the highest importance to the proper administration of justice that a judicial officer in exercising that authority vested in him shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to every one who might feel himself aggrieved by the action of the judges, would be inconsistent with the possession of this freedom and would destroy that independence without which no judiciary can be either respectable or useful.¹⁰⁶

The only constitutional sanction applicable to federal judges in the United States is the impeachment process. The constitution provides that „The House of Representatives….. shall have the sole power of impeachment.‟¹⁰⁷The senate shall have the sole power to try all impeachments.¹⁰⁸ The essence is to limit the means by which a judge may be removed from the bench thereby ensuring judicial independence. The Congress of the United States enacted the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 to create a

106 Bradley v Fisher, 80 Us (13 Wall) 333,347

107 US Constitution art 1, s 2 clause 5

108 US Constitution art 1, s.3 clause 6

71 procedure within each circuit for investigation and action upon complaints by any person of judicial misconduct in the federal system.¹⁰⁹ This is not applicable in Nigeria.

c. The Appointments Clause

The Appointments clause in the US Constitution provides: „The President shall nominate, and by and with the active participation and consent of the Senate, shall appoint…….. judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for and which shall be established by law…………¹¹⁰ The selection of all federal justices of article III courts is controlled by the Appointments clause.

This mode of appointment is similar with that of Nigeria in appointment of certain justices.

3.3.2 South Africa

In the past twelve years, great transformation was achieved in the South Africa Judiciary:

race and gender diversity have improved, judges for the most part have proven themselves dedicated to promoting constitutional valves, and various courts have made decisions reflecting the independence of the courts within the system of separation of powers.

In 1997 after the Constitution court had declared the death penalty unconstitutional and in response to rising levels of violent crime, demands by the public for more rigorous anti-crime programmes and more severe sentences for convicted criminals increased. Consequently, the legislature passed the Criminal Law Amendment Act(CLAA)¹¹¹ which increased compulsory minimum sentences ranging from five years imprisonment to life imprisonment¹¹² for a variety of crimes such as murder, rape, robbery, drug trafficking, corruption, fraud and assault.¹¹³However, recognizing that sentencing is a judicial function and that sentencing officers must have some degree of independence in tailoring punishments to individual circumstance, the government included in the Act a provision that stated:

109 Judicial Council Reform and Judicial Conduct and Disability Act 1980 (Codified as amended at 28 USC SS 331-373 (1982

&Supp.IV 1986)

110 US Constitution art II s. 2 clause 2

111 CLAA 105 of 1997

112 ibid s. 51 (1) (2)

113108.

ibid schedule III

72 If any court…. is satisfied that substantial and compelling circumstances

exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence.¹¹⁴

While the legislature and executive have legitimate interests in protecting the people and in reducing crime, the government recognized, when drafting the CLAA, that any legislature aimed at achieving these goals could not infringe on judicial independence. The Act is an example of the government‟s successfully balancing the demands of the public and its legitimate role as protector of public safety against the requirements of judicial independence and of its sensitivity to the need for legislation to conform with the requirements of the Constitution.

The rape trial of Jacob Zuma, the former deputy President of the ANC served to demonstrate judicial independence and impartiality in South Africa. Accused by a 31 year old family friend of raping her at his home in Johannesburg in November, 2005, Zuma stood trial in the Johannesburg High Court and was acquitted on 8^th May, 2006. A white man who was in some ways emblematic of the Old regime, Justice Van der Merwe, presided over the case against Zuma, a black man who was instrumental in the fight against apartheid and the ANC and was himself symbolic to many people of the new regime. Under pressure from Zuma‟s supporters, women‟s rights activists, political parties and a variety of other sources, the judge remained impartial and proved that he could apply the law without regard to race, political affiliation or background of the defendant.¹¹⁵

3.3.3 Malawi

Malawi is a small, densely populated, landlocked country of southern Africa. Over 80% of the population lives in rural areas and despite impressive macroeconomic growth over the last decade, rates of poverty remain stubbornly high. Malawian politics are dynamic and volatile.

On one hand, the comparatively high level of competitiveness and presidential turnover are positive indicators of democratic progress in a region that continues to be characterized by hegemonic party systems. On the other hand, a personalistic style of politics and the

114 ibid s. (3) (a)

115 A Gorden and D Poruce , Transformation and the independence of the Judiciary in South Africa

<http.//vol.53art08.pdf.html accessed on 5 August, 2015.

73 opportunistic cycling of politicians in and out of the political parties continue to hinder the formulation of effective development strategies in Malawi.

Over the last twenty years political conflicts, substantial and minor, have arrived at the doorstep of the Malawian judiciary. The Parliament has been dysfunctional and unstable. The Executive has pushed the democratic limits of their power, whereas in contrast, the judiciary has represented a core stabilizing institution for Malawi‟s fledgling democracy.

Across Southern Africa where there is a demise of the legislature, in both policy making and symbolic terms, the court becomes an even more important potential check on the power of the Executive and by so doing the court‟s independence and autonomy are carefully guarded and fostered.

The centrality of the judiciary in Malawi‟s politics was evident in the 2014 elections. In the wake of a highly flawed election all three political parties rushed to the courts seeking injunctions. The High Court overturned Joyce Banda‟s unconstitutional attempt to nullify the results and the Malawi Electoral Commission declared the results within the mandatory eight days. The judiciary was simultaneously lauded and chastised but in all, it appears to have emerged with its legitimacy intact. This is a reflection of the positive facets of judiciary independence in Malawi.¹¹⁶

3.3.4 India

The constitution makers of India had a ground vision of a free and just society based on the rule of law. In the realization of that vision they had assigned a prominent role to the judiciary which it held to perform independently and uninfluenced by the other two branches of the government, executive and legislature. Among all the troubles and tribulations India has faced since the commencement of the Constitution, the judiciary has performed its role fairly well. In its times of trouble with the executive, the judiciary has received the spontaneous and sustained support of a powerful legal community and of the people in general. Therefore the judiciary in India has its role along the expected lines. This has helped in sustenance and effective operation of a democratic constitution in India.¹¹²

116 R Ellet, ‘Politics of Judicial Independence in Malawi’<http.//vol.43art08.pdf.html accessed on 5 August 2015.

112 MP Singh, ‘Securing the Independence of the Judiciary. The Indian Experience’<http.//vol.33art08.pdf.html accessed on 5 August, 2015.

74 CHAPTER FOUR

THE COURTS AND POLITICAL GOVERNANCE IN NIGERIA 4.1. The Introduction of Political Party System in Nigeria

The colonialist in order to achieve their sole purpose of economic exploitation, founded the indirect rule or Native Administration System of ruling people through the native Chiefs (or the institution or authority which the people were willing to recognize and obey). It was an allegiance of people to a tribal head, freely given and without external cause. This was a concept older than Nigeria, having been applied by Lord Lugard while in East Africa.

The Indirect rule, with its disadvantages and problems, was regarded as not fit for independent government. With the movement of Nationalists in the West African Region, one thing they demanded under the nationalism quest was for constitutional reforms in all the British West African Colonies. These demands eventually led to the emergency of the Guggisbery Constitution of 1925 in Gold Coast and the 1922 Clifford Constitution in Nigeria, which introduced the elective principle, whereby four Nigerians were elected into the legislative council. This led to the foundation of the first Nigerian political party, the Nigerian National Democratic Party (NNDP) led by Herbert Macaulay.

The development of political parties helped a lot in arousing nationalist feelings and agitations in Nigeria. Some of these early political parties that came after the Nigerian National Democratic Party (NNDP) of 1923 were Nigerian Youth Movement (NYM) of 1936, West African Students Union (WASU) of 1925 and the National Congress of British West Africa, (NCBWA) of 1920. The parties articulated the people‟s interest and attacked colonial rule.

Later, the Macpherson Constitution of 1951 came up and three major political parties were formed to contest the election in the year for the attainment of self rule. They were the National Council of Nigeria and the Cameroon (NCNC) of 1944, the Action Group(AC) of 1951 and the Northern Peoples Congress (NPC) of 1951. The Action Group evolved from the Egbe Omo Oduduwa, a Yoruba Cultural Union. The NCNC had institutional membership who were mainly Igbo while the NPC had its origin in Jamiyyar Matah Arewa (JMT), a Hausa Cultural Organization.¹

1 N Izuako, ‘Political Parties and Freedom of Association under the 1999 CFRN’ (2001) 1,UNIZIK L.J,vol.6 p.2

75 The early political parties in Nigeria assisted or were instrumental in the country‟s success in the attainment of independence for Nigeria. They thereafter drifted in their desperate bid to clinch and control power at all cost whether at the centre or at the regional levels.