Having what it takes

103 The Judiciary

The judiciary is that organ of government that is responsible for the interpretation of law and constitution of a country. The judiciary is made up of legal experts divided into members of the bench and bar. The bench comprises civil servants including judges, magistrates, alkalis including other government employed legal practitioners. Members of the bar are qualified lawyers who are not on government employment but could appear in court for clients. The structure of courts in any society ranges from inferior to superior courts. The inferior courts in this sense are not court of lower quality but courts of limited jurisdiction for such cases.³⁰ Superior courts in Nigeria are courts of unlimited jurisdiction in civil and criminal matters. They are also courts of first instance and appellate jurisdiction in all cases.

These include the supreme courts, appeal courts, federal and state high courts. The inferior courts cannot try all cases and are therefore courts of limited jurisdiction and include sharia courts, alkali courts and customary courts of appeal.³¹ B.K. Gokhale opines that:

Judiciary is that branch of government interpreting law, settling disputes, and giving justice. In federal states, it acts as the guardian of the constitution and settles disputes between federal government and units.

Modern states, unlike the ancient and medieval ones, lay great emphasis on the principle that justice should be meted out fearlessly and impartially by learned judges, and that judges should not be under the obligation and control of the executive or the legislature. Long back, judges were tools of executive; there was a time, when the executive and judicial powers were merged in the same hands. Judges were appointed by monarchs or their agents, and judges depended upon the sweet will and pleasure of the executive regarding their salaries, and their very continuation in service.³²

The judiciary cannot perform its duties like settlement of disputes, interpretation of the constitution, punishing of law-breakers and protection of fundamental human rights if they are not independent.

104 of the judiciary or for the fundamental rights of the ruled. The judiciary was that part of the structure which enforced law and order. Yash Vyas further contends that:

It was therefore identifiable as an upholder of colonial rule. To an average citizen, the judiciary was viewed with suspicion. The attitude unfortunately did not change with independence, because in many Third World countries, the judiciary has continued to be manipulated in a variety of ways by the executive. It is in this context that the doctrine of independence of the judiciary has acquired new importance in the Third World countries. In theory, the function of the judiciary is to dispense justice in accordance with the law. The judiciary is responsible for the maintenance of a balance of interests between individual persons’ interest, between individual person and the states, and between government organs inter se. Under the constitution, it is the judiciary which is entrusted with the task of keeping every organs of the state within the limits of the law and thereby making the rule of law meaningful and effective.³³

Most constitutional states in the Third World guarantee certain fundamental rights to citizens. A constitutional duty is imposed on the state not to violate these rights and to ensure that the citizens are protected and not impeded in the exercise of their rights. The judiciary is imparted with the most important function of safeguarding and protecting constitutional and legal rights of the individuals. The judiciary stands between the citizens and the states as a bulwark against executive excesses and misuse or abuse of power or transgression of constitutional or legal limitation by the executive as well as the legislature.³⁴ The judiciary independence means that judges must be free to interpret the laws independently, impartially and objectively without subject to any undue outside pressure from the police, the government, the military, public opinion or any other interest body or person in order for justice to be performed.³⁵ Judicial independence implies that the judiciary should be independent from the legislative and executive branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan interests.³⁶ Court must be useful to the society and must be efficient in all their conducts. They must justly punish crimes, protect civil liberties and fairly resolve disputes. Court has to be insulated from the politics of the other bodies which are the executive, legislature and political parties and at the same time not influenced by any social and

105 economic power.³⁷ Courts must hold the judicial authority of the government and the ability to enforce their decisions and orders. The court must also at the same time be restrained and must have self-imposed limits on the ability to act for executive or legislature…³⁸ The word impartiality implies that a judge should be free of personal biases and prejudices. He must not be committed to a political party or to one side in the litigation or to his race, class, caste, community, tribe or religion when he comes to judgment. Therefore, independence of the judiciary includes independence from political influence whether exerted by the political organs of the government or by the public or brought in by the judges themselves through their involvement in politics. By politics we mean politics in its narrow sense, organized or party politics.³⁹

J.A.G. Griffith says that the principal function of the judiciary is to support institutions of government as established by law.⁴⁰ In supporting the institution and stability of the system of government, the judges do perform a political function. The judiciary is not only a legal but also a government institution and therefore political in nature. Apart from independence from the executive, the legislature and political pressures, the concept of independence of the judiciary has some other dimensions. At times, threats to individuals or private groups in society or powerful economic interests may try to influence judges to invalidate statutes which are not to their liking.

This then requires that the judiciary must also be free from pressures from private power.⁴¹ 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 absolute control over who becomes a judicial officer, the removal of judicial officers and the powers of the purse. The key indices which are to ensure and facilitate independence of the judiciary are: appointment, remuneration, tenure of office, removal and protection of judges.⁴² According to the International Commission of Jurists, and the Centre for the Independence of Judges and Lawyers, independence of judiciary means :

…(1) that every judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without any improper influences, inducement or pressures, direct or indirect,

106 from any quarter or for any reason, and (2) that the judiciary is

independent of the executive and legislature, and has jurisdiction, directly or by way of review, over all issues of a judicial nature.⁴³

This definition covers all factors which may whittle down judicial independence, including private pressures and financial or other beneficial inducements.⁴⁴ What is required on the part of judges is objectivity.⁴⁵ An independent judiciary does not mean that judges can resolve specific dispute entirely as they please.⁴⁶ There are both implicit and explicit limits on the way judges perform their roles. According to Robert Martin, implicit limits include accepted legal values and the explicit limits are substantive and procedural rules of law.⁴⁷

The basic principles of independence of the judiciary adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders Held at Milan include the following:

1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary

2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect from any quarter or for any reason 3. The judiciary shall have jurisdiction over all issues or a judicial nature and shall have

exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.

4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorites of sentences imposed by the judiciary in accordance with the law.

5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal

107 process shall not be created to displace the jurisdiction belonging to the ordinance of courts or judicial tribunals.

6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.

7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.⁴⁸ Independence of the judiciary helps to improve the effectiveness of the system of checks and balances.