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‘Independence of judiciary should not be toyed with but reinforced’

By Yetunde Ayobami
19 February 2019   |   3:04 am
The suspension, order of arrest and subsequent arraignment of the Chief Justice of Nigeria (CJN), Walter Onnoghen is considered by many lawyers and Nigerians as invasion of the judiciary. Those are in defiance of pending applications at the appeal court and petitions before the National Judicial Council (NJC), empowered by law to discipline judicial officers.…

Lagos-based lawyer and the publisher of Supreme Court Law Reports, Layi Babatunde (SAN). Photo/CitypeopleParties

The suspension, order of arrest and subsequent arraignment of the Chief Justice of Nigeria (CJN), Walter Onnoghen is considered by many lawyers and Nigerians as invasion of the judiciary. Those are in defiance of pending applications at the appeal court and petitions before the National Judicial Council (NJC), empowered by law to discipline judicial officers. A Lagos-based lawyer and the publisher of Supreme Court Law Reports, Layi Babatunde (SAN) in this interview with YETUNDE AYOBAMI OJO shares his view on what needs to be done to reinvent the justice sector.

With all that is happening in the country today especially the current crisis over the suspension and arraignment of the Chief Justice of Nigeria, would you say that the three arms of government are truly independent?
What I can say is that it can be better managed. Sections 4, 5 and 6 of the constitution, which refer to the three arms of government seem to follow after each other, but they are not alike.  

For purposes of illustration, they are like neighbours occupying different compounds but demarcated by fences.

Anyway, they are not even similar in terms of their responsibilities and what is expected of each of them. And I think in the case of the judiciary, it is with a view to further strengthening their independence and ensuring none- interference, that the National Judicial Council (NJC) was also separately provided for in the constitution.

The NJC is constitutionally empowered to handle issues of appointment, promotions and discipline of judicial officers.  

So in essence, to a very large extent, the constitution envisages that the judiciary, the executive and the legislature though co-habit within the system, are supposed to be independent in their actions.

By practice the president still appoints the CJN, by recommendation from the NJC, and some people have reasoned that if someone is responsible for appointing someone into a certain position, then the person who is being appointed won’t really be independent

If you look at the procedure for appointment, I do not think it is as simplistic and straightforward as that. It is a chain of processes. At the federal level, the president doesn’t start by recommending anybody for judicial appointment.

The president doesn’t do that. It is the NJC for instance that recommends a person to be appointed into the office of Chief Justice of Nigeria, president of the court of appeal and others after which they are screened by the legislature and if found fit further sent to the president to be appointed. So it’s a combo sort of to use that word.  

But does that not mean the executive by participating in the appointment is interfering with the independence of the Judiciary?  
Not exactly, in a way it doesn’t, because the judiciary on their own through the Federal Judicial Service Commission (FJSC) or the State Judicial Service Commission (SJSC) as the case may be spots the candidate, looks at their paper works and then recommends them. They also look at pedigree before recommending them. They will ask them questions and look at their background.

If they consider them suitable, they will say okay, you are good to go and then it goes to the next stage, which is the president’s table in the case of the CJN and the president of the court of appeal and other heads of court.

Neither the head of the legislature nor the executive branch tells the NJC ab initio who to recommend for appointment. 

Do the suspension and removal of heads of court have to follow that process?
If you talk about removal it also emanates from the NJC and goes through the process, but in terms of the CJN, of course it involves the legislature.

The fundamental thing is that it is the NJC that recommends the removal of a judge, even for judges who are in the states.

If anyone has a complaint against a judge and believes strongly that a judge is not worthy of his calling and ought to be removed from the branch, he sends a petition against such a judge to the NJC and the NJC will deal with the petition on its merit. 

So anybody that has an issue against a judicial officer must go to the NJC?
The issues of appointment, promotion and discipline, are strictly for NJC. There are judicial authorities in support of this position. 

So you mean no other body interferes with this?
It is the NJC that looks at issues, takes a decision and puts it forward to the appropriate authority to implement.

It may not be a perfect process but the NJC in itself is listed in the constitution as one of the federal executive bodies ditto the Code of Conduct Tribunal (CCT).

Perhaps, these are some of the issues to be looked at in the future as our democracy matures. The Independence of the judiciary should not be toyed with but reinforced. 

What would you say was the idea behind it?   
To be honest with you, I don’t know what informed it. But on one hand, I get the impression that the intention is to ensure that the judiciary should be able to function without any interference from outside bodies.

But when you now have the NJC and you say its part of the federal executive bodies, there is something to be looked at in that regard and very closely. May be it has to do with funding. 

The current crisis between the presidency and the judiciary over allegations of non-declaration of asset by the suspended CJN has thrown up issue about the level of corruption in the judiciary. As a senior lawyer, how corrupt is the judiciary and what is the level?  
I do not wish to comment on the going proceedings for obvious reasons, but the point must not be missed that what is before the CCT are allegations bordering on asset declaration not bribe- taking or perversion of justice.

Having said that, the truth of it is that in spite of the challenges, the judiciary has been more forthcoming than other arms of government in exposing and punishing its members found to be corrupt or otherwise wanting.

From the NJC’s output, it appears that a number of the casualties are victims of corrupt practices related to the conduct of election petitions. They probably could do more by swiftly fishing out and punishing bad eggs on the bench.

So to the extent that the NJC has shown some judges the exit door on grounds of corruption, it does not require my saying that there is corruption in order to validate what is already in public knowledge and is being addressed. How effective it has been is a different question.

At least, the judiciary admits there are enemies within and they are making efforts to deal with the situation. The legislature and the executive will do well to look inwards too so that we can cover the field as it were. 

However the fact that the NJC has punished some of judicial officers for corruption and some others are yet to be identified and sent packing is no justification for branding the entire judiciary as corrupt and rotten. That will be unfair to the majority of judges who are hard working and honestly too.

As National Association of Democratic Lawyers (NADL) pointed out in their well-circulated statement, ‘Nigerians must realize that sleaze is not the defining characteristic of the Nigerian Judiciary.’

Come to think of it, if the reverse were to be the case, every practicing lawyer will probably have explanations to make as to whether or not they are bribe givers. But I know from my experience in practice that it is not the case. That is not to say there are no bad eggs.

There are! It is our duty to decimate their number, working with the NJC. It is indeed a time for sober reflection for the bar and the bench. Thus it is not a time to play to the gallery.

Most of the corruption cases against judges usually involve politicians, why is it so?
I think it is the nature of do-or-die politics politicians practise in this country.

For most politicians, it is do-or-die. They want to get whatever position they are aspiring to at any cost and see the judges as obstacles to overcome by all means possible.

It is unfortunate that they sometimes find some willing judges and justices who play along with them. But I think those in the judiciary are already learning their lessons because when the chips are down, it is the judges and justices that get punished and nothing happens to the politicians.

Some of the politicians on account of whom some justices were punished and sent packing are still on the ballot or party leaders today. 

How do you think the judiciary and by extension judges and justices can handle this sinister encroachment by politicians?  
The Bar and the Bench have to come together to fashion out a workable solution.  Even retired judges can be of tremendous help.  

A lot of them are still around and their experience will be of tremendous benefit. We have to come together to ensure that politicians don’t create political wings on the Bench.

The work of the judiciary is too sensitive for us to stand aloof and allow people to deal with it the way they want to, by ensuring that they get their boys and supporters appointed into the Bench. You cannot use judiciary for political compensation.

You can’t do that because the bench is meant for the best, the diligent, courageous, industrious and those with integrity.

If we allow people who are being pushed to the Bench, so that politicians can fall back to them later in life, we are all going to be in trouble.

The Bar and the Bench must work together to arrest this situation. You cannot use judicial appointment as compensation for your political lackeys and ‘man know man’.

In the interest of the future of our profession and the need to deliver justice unpolluted, the Bar and the Bench need to come together and stand firm against the onslaught of the judiciary by politicians.

It is in our best interest and if we fail to do so, the consequences will be disastrous. We need to do something about the perceived rupture of trust between us are the consumers of our service, which is the general public.

Doing something about it means that only the best of us end up on the bench and those who find their way there somehow and are not doing well are removed. Trust is key in justice delivery and we must work hard at building and nurturing it.  

Financial autonomy is still a major challenge for the judiciary. Do you think there is a need to review the constitution in order to resolve this issue?
I think, as at today, what is required is the political will to give vent to financial independence for the judiciary.

There is so much talk about financial independence but in actual fact, it is not being carried out. I believe if the Bar and Bench work together, we can defeat the problem.

Some people have suggested a political solution to the current CJN trial. Do you subscribe to this?
We can’t speak from both sides of our mouth. This issue is before the NJC.

Under our constitution they are empowered to deal with the issues that have been referred to them. My candid opinion is that we wait for the outcome.

The justice Ayo Salami, former President of the court of appeal saga should remind us of the danger of the judiciary playing into the hands of the executive. We should not carry on as if we learnt no lessons. 

The NBA has made some interventions in the current issue involving the suspended CJN. How would you access the effectiveness of the NBA in tackling national issues in the country?
The NBA intervened in its own way as soon as it could and I believe the process is still on going.

However, I believe the Nigerian Bar Association (NBA) has to revise its strategy, such that we are not merely reactive but pro-active in a number of ways.

The Justice Salami saga for instance provided a good opportunity for us to have addressed some of the problems that challenge the relationship between executive and judiciary but we seem to have lost the opportunity. 

Is there any forum where judges and lawyers come together to interact and set a common goal?
I think we need to make the activities of the Bar less ceremonial and more seri ous innature.

Sometimes we have functions like the Bar and Bench forum but they look more to me like events than a consistent process geared towards attaining particular goal in the overall interest of the profession and justice delivery that inspires confidence.

Its a forum that we need to strengthen and build on. Co-operation between the Bar and the Bench as a group does not translate to compromise of cases. 

Some have suggested that retired judges and justices be appointed to handle petition matters. Do you agree with this suggestion?
I think it is an idea that should be seriously considered. I know that there was an argument in the past that if we engage retired justices and issues come up, the NJC may not be able to discipline them because they are no longer under the NJC control. But I believe that that is something that can be dealt with.

If you are a retired judge and you go and sit on a tribunal, and you are corrupt, the ICPC and EFCC can always take up the matter.

If we have the tribunal comprising retired judges and justices, then there is no harm in also engaging respected members of the society, people of unquestionable integrity to serve on the tribunal.

After all, in the composition of the NJC, there are non-lawyers as members. Of course, they are issues to be looked at but I think it is worth given serious consideration.

The idea of removing several judges from their various jurisdictions and their regular court schedules to serve on tribunals is a major cause of delay and congestion in courts.