Nigerians do not have faith in law enforcement agencies, according to polling data. A possible reason for this is the fact that Nigeria’s law enforcement agencies, particularly the Judiciary, are not truly independent.
To be truly independent, the Judiciary must be able to carry out its responsibility of checking the limits of the other arms of government without fear of retribution. In Nigeria, this is easier said than done. To be truly independent, citizens must hold fast to the belief that the Judiciary is the 'last hope for the common man'. In Nigeria, this is not the case.
Independence, not checks and balances
Baron de Montesquieu, the French political philosopher, is acknowledged as the key proponent of an ‘independent Judiciary’ as laid out in his treatise ‘The Spirit of the Laws’. He argued that the executive, legislative and judicial functions of any government should be separated. This way, no branch of government would have full unchecked power over society. Today, many consider this a fundamental tenet of democracy.
In practice, independence and separation of powers are policed by checks and balances. And independence is not the same as checks and balances; these are two separate notions. An example of 'checks and balances' is the fact that the Nigerian President selects the Chief Justice of the Supreme Court, her appointment is subject to Senate confirmation. We saw this scenario play out recently in the United States.
However, each Justice is appointed to the court on the basis that she will not be subject to improper or partisan influence from the other branches of government. So independence remains even after checks and balances are complete.
President Buhari also recently nominated two Justices to the Court, although without the same level of public attention. Why? Arguably, the perception of the average Nigerian is already so skewed against the Judiciary that few expect new Justices to change anything. As with most things Nigerian, citizens cannot be blamed for expecting business as usual. Here, we see the importance of national perceptions. Independence may exist in theory, but do Nigerians consider the Judiciary as such? The answer might be no. This is understandable given that the average length of a commercial case in a Lagos court is 583 days. Apathy reigns. Clearly, Nigeria needs to move from only checks and balances in the appointment process, towards real judicial independence.
Who controls the purse?
What is required to attain independence? Perhaps, financial autonomy. Our Judiciary is not as independent as its foreign counterparts because it lacks financial autonomy. Put simply, whoever pays the piper calls the tune. While in Nigeria the Executive and Legislature are catered for directly in the Budget, the Judiciary receives funding from the Executive, as a first line charge to the Federation Account.
In essence, the Judiciary owes it financial security to the Executive, an arm it is meant to check. This problem persists beyond the federal level and extends down to individual states. In 2015, a judicial crisis erupted in Rivers State because the State Governor disagreed with the recommendation for the State's most senior judge. For months, the then Rivers Governor Rotimi Amaechi and the National Judicial Council were engaged in a standoff over the matter, until Amaechi eventually left office. The case served as the poster child of judicial interference by a state executive who also doubles as the agent responsible for funding the state's judiciary.
Who controls the membership?
Additionally, the Nigerian Judiciary suffers from poor institutional memory owing to the revolving nature of its leadership. The President, Governors and Legislators have fixed terms. But Nigerian Justices do not. Interestingly, the U.S Supreme Court offers a midway point that appears to have worked. Article 3 of the U.S Constitution holds that a Justice can hold his office as long as he exhibits 'good behaviour’. A soft interpretation of this is life tenure or resignation, resulting in longer terms and the ability to shape the judiciary, independent of the government of the day.
But Nigeria is different. Of the 113 U.S Supreme Court Justices in the court’s 228-year history, the average length of a justice has been 16 years. That’s the equivalent of 2 two-term presidents. Meanwhile, In Nigeria, we’ve had 91 Justices in only 54 years of the Court's existence, partly because we set a mandatory retirement age of 70 years. Evidently, Justices remain at the mercy of politicking, and unfavourable justices have no job security should they decide to rule against incumbents.
Who controls the whip?
Finally, the Judiciary has been effectively stripped of its disciplinary functions, and made subject to the executive. In October 2016, the Department of State Services broke into the homes of several Justices, including those on the Supreme Court and State High Courts. Beyond the legality of the DSS' actions, there does appear to be a crisis of confidence in the Judiciary. An executive can be impeached or resign, a lawmaker can be suspended or recalled, but judges seem to be victims of overzealous security agencies.
Instead, the Judiciary should be empowered to carry out its internal checks, such as the disciplinary actions by the National Judicial Council. The police, DSS or any other organisation shouldn’t be able to freely infringe on this right any more than the Chief Justice can declare an officer in the Executive or Legislature removed without due process.
The Judiciary remains an important arm of government. But while the Executive and the Legislature appear independent, the Judiciary has not been so lucky. This hinders its ability to deliver on its most important role – administration of justice. Therefore, Nigeria has two choices. We either work hard to give justice the independence she needs or watch long enough for her take off the blindfold.