The Beleaguered Fortress: Reflections of the Independence of Nigeria's Judiciary

Abstract

Informed opinions on the judiciary in Nigeria vary between the rather equivocal comment by a senior member of the bar that “The judiciary is dead”, or the view that it is “on trial” and the more compassionate view that it is a “beast of burden” or a “sacrificial lamb”. These remarks derive from observations of the (alleged or actual) behaviour of the judges, and their independence, impartiality and integrity. While the metaphors quoted above may be subject to various interpretations, they do raise considerable curiosity and interest as to why any judiciary should attract such comments, and perhaps to what extent the comments are justified. This article, in attempting to answer these and similar nagging questions concerning Nigeria's judiciary, examines the truly multi-faceted question of judicial independence by assessing the Nigerian situation in the light of the factors that are considered vital to ensuring or guaranteeing an independent judiciary.Interestingly, although section 17(1)(e) of the Nigerian Constitution provides that “The independence, impartiality and integrity of Courts of Law, and easy accessibility thereto shall be secured and maintained”, this provision is under the chapter titled “Fundamental Objectives and Directive Principles of State Policy”, whose provisions are non-justiciable by virtue of section 6(6) (c) of the Constitution. Thus the high-sounding declaration of section 17(1)(e) has no bite, and what could have been a constitutional guarantee of judicial independence is no more than a slogan.

Calling the Judiciary to Account for the Past: Transitional Justice and Judicial Accountability in Nigeria

“…The situation in the courts had become so bad that trials had turned into “charades” manipulated by well‐heeled litigants. The situation was complicated further by “unethical lawyers” and “faithless judges” (Olowofoyeku 1989: 67–68; Oko 2006: 14–17). The deplorable situation had even been lamented by Justice Oputa who was to head the Human Rights Violations Investigation Commission (HRVIC) almost two decades earlier (Oputa 1981: 9).…”

“…Further, by several accounts, the judiciary had become severely compromised (Olowofoyeku 1989: 59). The nature of military rule in the country led to severe hemorrhaging of the human rights of citizens.…”

“…This is the case because the judiciary itself could be considered a victim of military rule. The paradox is heightened by the poignant description of the institution at that time as a “beleaguered fortress” (Olowofoyeku 1989: 71). That description notwithstanding, could it be that the judiciary felt itself under such a heavy burden of complicity for (mis)governance that surpassed (and thus precluded) any sense of victim‐hood during the decades of military authoritarian rule?…”

“…In Nigeria, the security of tenure was breached and judges were unceremoniously dismissed or retired in a good number of cases during the years of military rule (Olowofoyeku 1989: 59–62). Judicial pay was poor (ibid.…”

Comparative Judicial Politics

“…Indeed, against arguments for judicial independence is the long standing European concern that the legislature, as the embodiment of popular sovereignty, is the most suitable organ for making decisions in a democracy. Judiciaries can themselves be mercurial or overbearing, as some American colonists feared and as Nigerian citizens have experienced, and a better solution to the problem of protecting minority rights might be to give minorities a stronger voice in the assembly (Olowofoyeku 1989;Shapiro 2002). Others argue that legal incrementalism tends to frustrate radicals reforms and naturally favors conservative causes (Landfried 1989cited in Stone Sweet 2002b).…”