A.T. Shehu (College of Law Al-Hikmah University, Ilorin, Nigeria)
M. K. Tamim (Department of Private and Property Law Faculty of Law, University of Ilorin, Nigeria)
Original document here
Date de publication
The suspension of Justice Ayo Salami, President of the Court of Appeal (PCA) opened a new dimension in the Nigerian judiciary; it is the first of its kind at that level. The National Judicial Council (NJC) initiated the suspension and the President of the Federal Republic of Nigeria endorsed it. The paper is concerned with implications of the suspension for the rule of law, constitutionalism and judicial independence. The paper argues that the suspension was unconstitutional for procedural irregularity and further reveals that the mechanisms provided by the constitution to guarantee judicial independence are inadequate and ineffective.
The Nigerian Judiciary has come a long way from the colonial era to the present and it ranks among the best having produced some of the finest jurists of the present generation. (Ketefe 2012). Not only this, it has often succeeded forms of government that have been witnessed in the country from the first republic to the present time; the parliamentary, military and the current presidential constitutionalism (Uwais 2006, 9). Although it may be that it did not operate under the popular rule of law environment during the military interregnum, it however stood its ground against dictatorial tendencies of the military dictatorship as epitomized in the judicial interpretation of ouster clauses and other draconian military decrees and edicts. The judiciary thus often characteristically guarded its sacredness from undue interference to sustain its independence.
It is also interesting to note that of all the organs of government, only the judiciary was always shielded from banishment each time the military juntas took over the reign of governance in the country. While the executive and the legislative arms of government were characteristically the first casualties of military interference in governance, the judiciary always remained, though without some bruises (Mowoe 2008, 85–86). This perhaps accounts for one of the reasons for the envious position and prestige of the judiciary until very recently when some of the malaise of the Nigerian society, corruption in particular and partisanship, surreptitiously crept into the judiciary leaving its prestige, sacredness and independence almost extricated (Ketefe: 2012).
Unfortunately, these afflicted the judiciary now that the presidential system of government in Nigeria requires a vibrant, courageous and progressively proactive judiciary through its power of review of activities of the other arms of the government, to ensure strict adherence to the rule of law and ensuring democratic constitutionalism in the polity. However, the fathers of the 1999 Constitution of the Federal Republic of Nigeria (as amended) were quite cognizant of this eternally important role of the judiciary in the polity and the need for ensuring its independence.
One of the constitutional mechanisms for ensuring the independence is the establishment of the National Judicial Council (hereinafter referred to as the NJC) vested with the power of superintending the affairs of the judiciary (Nigerian Constitution 1999, section 153). The suspension of Justice Ayo Salami, President of the Court of Appeal (PCA) opened a new dimension in the judiciary thus necessitating controversies as to its rightness and constitutionality. The NJC initiated the suspension and the President of the Federal Republic of Nigeria endorsed it. Thus, this paper is concerned with the implications of the suspension for the rule of law, constitutionalism and judicial independence. NJC is the institution charged exclusively with power of overseeing the affairs of the judiciary and ensuring its independence. As a theoretical foundation, therefore, the effectiveness of the NJC in the discharge of its constitutional functions is a determinant factor in the assessment of the level of judicial independence and consequently the potency and effectiveness of the review power (Shehu 2010, 212 – 231; 2011, 43-72).
Conceptual and Constitutional Framework
Independence of judiciary has usually been construed in the sense of independence of judicial officers from interference from executive and legislative officials in the discharge of their judicial decision-making (Ferejohn 1998). This could be described as an aspect of external content of the independence, which does not foreclose interference from other members of the society especially those who hold economic and quasi-political powers, or even from social interest groups. In this aspect, the interference is either direct by holders of such powers or indirectly using their economic or political power to influence judicial process.
It may also come in different form including the process of selection and recommendation of candidates for judicial appointments, bribery and other form of corrupt practices. In addition, there is also the internal content of independence of judiciary, which can be subdivided into two. One is that aspect regarded by Ferejohn (1998) as normative, requiring the judges to be “autonomous moral agents who can be relied on to carry out their public duties independent of venal or ideological considerations.” This, as in the words of Karlan (2002, 2), may however be compromised by physical compulsion, pecuniary consequences or personal ambition.
The second aspect of the internal content is freedom of judges from interference from within the judiciary itself as an autonomous institution of government. Freedom of judges from the top hierarchy of the judiciary as it has recently been experienced in Nigeria where the President of the Court of Appeal was suspended consequent upon a misunderstanding between him and the then Chief Justice of Nigeria. The misunderstanding arose out of issues concerning freedom of judges from internal interference as would be seen soonest. Interestingly, scholars do not pay attention to this aspect of judicial independence but have always been concerned about independence from the political branch erroneously believing that, as does Law (2011, 1), that it is the most important and the most difficult to achieve.
According to Ferejohn (1998), it is apparent that independence, inter alia, facilitates three distinct values. That is, maintenance of the rule of law, independence of the courts to be able to overturn any legislation that is constitutionally illegitimate in a constitutional government, and in a democracy such as Nigeria, the courts’ autonomy to resist temptations to give too much deference to current holders of economic and political power.
These core values, properly evaluated would subsume into one single overbearing value of judicial review. The first of the core values is indeed the very foundation of any civilized society. Its purport is that only laws properly enacted by the appropriate authority recognised by the Constitution (Nigerian Constitution 1999, section 5) other than arbitrary rules of a selected economically and politically powerful few must govern relationships in the polity. The same laws that are enacted by the legitimate institution of governance charged with that responsibility, called by whatever name, must apply equally to both the lowly and the high in the polity without favour or preference based on whatever consideration as dictated by the concept of rule of law. The right of access by any person to an impartial judiciary for redress in the event of breach or imminent breach of his constitutional right.
must also be guaranteed as envisaged by some constitutional provisions such as section 6 (6) and section 46 (1). All these apparently necessitate and require judicial intervention as to the determination of; adherence by the law-making institution to the extent of grant of authority, effective execution and faithful maintenance of the laws by the executing department of government, and the respect for the right of individuals.
Independence for whom?
Judicial Independence, as opined by Law (2011, 1), is a difficult concept to define and explain because of its conceptual and normative characters. Answers to the questions may to a large extent bring about clarity of the concept without actually addressing the possibility of reality of judicial independence. The first question is about who must be the beneficiary or beneficiaries of that independence; is it the judiciary as a whole; or as an institution of the judges who make judicial decisions? For a practical purpose, in Nigeria, for example, the Constitution guaranteed judicial independence, (Nigerian Constitution 1999, section 292) but in a manner suggesting protection of only the judges of the superior courts as individuals and not as a collective institution. This would then mean that the judiciary as an institution enjoys only constitutional separation and not independence from the other political departments. The separation here does not indicate absolute separation since the appointment and removal of judicial officers is a joint venture between the judiciary, the legislature and the executive. It may however be argued that independence for judges makes consequential independence for the judiciary as a body. But the problem arises again when it is considered that judicial independence embraces independence of judges from the administrative control of the top echelon of the judiciary, the head of the judiciary; the chief judge or chief justice, as the case may be. An example of this is the genesis of the suspension of Justice Ayo Salami, President of Court of Appeal (discussed below).
Independence from whom?
A more difficult question is independence from whom. Answer to this question may differ from jurisdiction to jurisdiction, depending on many factors; constitutional arrangement of relationship between the judiciary and the political organs, the mode of appointment and removal of judges, level of political awareness by the citizenry, the perception of the judiciary by the people themselves and even the personality of the judges themselves, and even some judges do not seem to appreciate the need for separation of powers; they are judges in the day and politicians at night such that their judgment in the open courts are not just determined by the sacred law, but by the class of persons involved in the case.
The more pronounced and most important is independence from control by the government, which dates back to the England’s Act of Settlement 1701 (Law 2011, 1). Nigerian Constitution, 1999 maintains that once a judge is appointed and sworn-in, having subscribed to his oath of office. Section 290 and the seventh schedule of the Constitution indicate that a judicial officer can only assume duty in that wise after he had taken and subscribed to both the oath of allegiance and judicial oath to the effect that he shall give paramount consideration to the Constitution.
The constitution thus provides for independence of the judiciary from the government; but it appears the selection and appointment procedure of the heads of respective branches of judiciary suggests otherwise. The President on the recommendation of the National Judicial Council appoints certain judicial officers subject to confirmation by the Senate. They include the Chief Justice of Nigeria and Justices of the Supreme Court, President and Justices of the Court of Appeal, Chief Judge of the Federal High Court and the Chief Judge of the Federal Capital Territory (Nigerian Constitution 1999, sections 231 (1) and (2), 238 (1) and (2), 250 (1) and (2), and 256 (1) and (2)).
At the state level, in consonance with the principle of federalism, the Governor appoints the Chief Judge of the State High Court, Grand Kadi of the State Shariah Court of Appeal, where established pursuant to section 276 (1) and (2) of the Constitution, on the recommendation of the National Judicial Council subject to confirmation by the State House of Assembly. Appointed in the same manner is the President of Customary Court of Appeal pursuant to section 281 (1) and (2) of the constitution. It is important to note that while appointments of heads of all the courts mentioned are subject to confirmation by the senate or the state house of assembly, as the case may be, appointments of judges and kadis of the courts are not.
The president or the governor, as the case may be, appoints on the recommendation of the National Judicial Council without resort to the legislatures. The implication of this is that while the appointments of certain judicial officers in the land undergo legislative screening or oversight, the appointment of others needs only the recommendation of the National Judicial Council for the President or the Governor of a state to make such appointment.
That legislative oversight in such appointments ensures that both the National Judicial Council and the President comply with the provisions of the constitution for making such appointments. It is difficult to understand and appreciate need for the different requirements since all the judges are members of the same judiciary established by the constitution.
Independence from what and for what purpose?
The third and fourth questions on judicial independence as identified by Law are more normative than conceptual as they deal with form and essence of independence. The question, from what, investigates the type of interference that is capable of inhibiting judicial independence. Law (2011, 4) posits, narrowly though, that not all forms of influence over judicial decision-making constitute threats to judicial independence. Broadly, this may be a wrong assertion because any form of influence has the tendency of affecting the smooth running of the judiciary. Influence is a wide term connoting any form of act from an external person or body or even from within the judiciary capable of, apart from the merits of the case before a judge, operating on the mind of the judge while sitting to make decision in the case before him. The mere concern for career prospect in term of ambition to become the chief judge may be a great influence on a judge.
Also, the mere promise of better condition of service may not be a strong influence, whereas to any other judge the mere fear of public protest and indignation resulting from a judgment and the love for his job may be enough to hinder him from the merits of the case, especially in volatile political situations as in Nigeria. Religion, like any other primordial sentiment in some cases may influence the decision of a judge. Bribery and other forms of corrupt practices may propel even the most courageous judge to trade-off a decision.
The report by Transparency International (2007) has shown that corruption undermines judicial systems worldwide, Nigeria inclusive as buttressed by a survey recently conducted by the Economic and Financial Crime Commission and National Bureau of Statistics with the support of the United Nations Office of Drugs and Crimes (UNODC) (Fagbemi 2010, 71). Social and political ties are equally very strong when considering sort of influence that may inhibit the proper application of the law to a case by the judge. Unless viewed from a narrower perspective, any influence apart from the factual demeanour of the parties standing before the judge, the evidential value of totality of the facts put before the court weighed on the scale of justice in accordance with the appropriate statutes would one way or the other have impact on the judgment of the court.
Prelude to suspension
The suspension of Justice Isa Ayo Salami was preceded by a plan to move him as President of the Court of Appeal (PCA) to the Supreme Court. The attempt though may ordinarily look like an elevation because Supreme Court is not only the apex court in the land, it is also a constitutional court, and its decision is binding on all courts in the land. The news of the imminent suspension was reported in one of the Newspapers (The Nation, February 4, 2011, 1) that the move was hatched sometime in January, 2011 at a meeting of the Federal Judicial Service Commission presided over by the former Chief Justice of Nigeria (CJN), Justice Katsina-Alu, who initiated the plan though it was not on the agenda for that meeting. Although it was reported that the CJN argued in support of the plan that the erudition and experience of Justice Salami would strengthen the Supreme Court if transferred there, such a move was the first of its kind in the judicial annals of Nigeria.
The plan generated some frustration from the Bar and the general public against the background that the previous September a top leader of the National Assembly allegedly invited Justice Salami for interaction on why the Court of Appeal had been delivering verdicts against the PDP in some states. It is interesting to note that five Justices of the Court Appeal (Clara Bata Ogunbiyi, M. R. Garba, P. A. Galinje, C. C. Nwabueze and A. Jaure) were queried by the National Judicial Council (hereinafter referred to as the council or NJC) over the judgments of the Court in Ekiti and Osun State Governorship Election Petitions (The Nation, February 6, 2011, 4).
Justice Isa Ayo Salami protested the purported plan to move him to the Supreme Court. In his letter entitled “Offer of appointment to Supreme Court-Rejection” with reference number PCA/S.25/Vol.1/143 and dated 4th February 2011, he not only rejected the “offer”, he described it as unholy move to push him out of the Court of Appeal, that it has no precedent in the country’s legal history and that it was capable of “creating dangerous precedent which may give rise to chain reactions” (The Nation, February 6, 2011, 4). In utter rejection of what he referred to as “unholy” promotion and perhaps with determination to fight what seemed like a dangerous judicial politics, he filed a suit, by way of originating summons, against the CJN, Federal Judicial Service Commission, the National Judicial Council and the Attorney General of the Federation at the Federal High Court, Abuja.
Implications of Suspension A careful understanding of the suspension saga would indicate that the whole crises started from an allegation by the suspended President, Court of Appeal, that the retired CJN, Hon. Justice Aloysius Katsina-Alu directed him to compromise the Sokoto Gubernatorial Election Appeal. The allegation was made on oath and the CJN denied it on oath. The National Judicial Council looked into the allegation and absolved the CJN while also absolving the PCA of any judicial misconduct except that he made false allegation against the CJN. The Nigerian presidential system calls for this council as the constitutional body charged with powers and responsibilities over the Nigerian judiciary. Separation of powers requires that, though absolute separation may be a mere utopianism, the three powers of government, notably the executive, legislative and judicial must be effected by three different autonomous bodies with the power of each complementing the power of the other (Young 2003, 9). Thus, the establishment of the council is to enhance the independence of the judiciary as an autonomous democratic institution to ensure sustainable democracy, rule of law and constitutionalism in the country.
Without going into the politics surrounding the suspension, it is necessary to examine the attendant implications on the judiciary particularly on its independence and power of review of both executive and legislative actions, and by implication on constitutionalism generally. First, it is important to start by examining the composition and powers of the National Judicial Council to appreciate the role it played in the saga and the implications. The Council is established under Section 153 of the 1999 Nigerian Constitution (as amended). It is composed of (Nigerian Constitution 1999, Third Schedule, Part I, section 20):
(a) the Chief Justice of Nigeria who shall be the Chairman
(b) the next most senior Justice of the Supreme Court who shall be the Deputy Chairman;
(c) the President of the Court of Appeal;
(d) five retired Justices selected by the Chief Justice of Nigeria from the Supreme Court or Court of Appeal;
(e) the Chief Judge of the Federal High Court;
(f) five Chief Judges of States to be appointed by the Chief Justice of Nigeria from among the Chief Judges of the States and of the High Court of the Federal Capital Territory, Abuja in rotation to serve for two years;
(g) one Grand Kadi to be appointed by the Chief Justice of Nigeria from among Grand Kadis of the Sharia Courts of Appeal to serve in rotation for two years;
(h) one President of the Customary Court of Appeal to be appointed by the Chief Justice of Nigeria from among the Presidents of the Customary Courts of Appeal to serve in rotation for two years.
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