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Challenges of the Judiciary in contemporary Nigeria

By Ebun-Olu Adegboruwa, SAN

Last week, we focused on issues affecting the judiciary in relation to the appointment of judicial officers and the dangers of extraneous considerations in such important national assignments. The topic itself has become a prophecy foretold given the events of last week, when gun-toting security men invaded the house of a highly revered Supreme Court Justice. While the Bar and Bench are trying to get a grip of what actually happened, let us draw the curtain on the topic of the 2021 Judges Conference in Ogun State.

APPOINTMENT OF JUDICIAL OFFICERS

In tackling this problem, the way in which judges are selected and subsequently promoted are crucial, as judges must not be seen as political appointees, but solely rather for their competence, integrity and political neutrality. If we want to see profound changes in the appointment of judges, we must reject the re-echo chamber of non-advertisement of judicial vacancies. There ought to be competitiveness in the appointment of judicial officers. Presently, the process of appointment of judges and judicial officers, just like the confirmation of the rank of Senior of Advocate of Nigeria, must be made totally open and highly transparent to the public from the onset when people will be free to express their interest for appointment as judges and magistrates, and down to the stages of shortlisting and recommendation of successful candidates, devoid of malicious or scandalous objections and professional fault finders. The applicants must therefore be screened vigorously and rigorously upon which the best shall emerge on the merits. The role being played by politicians, traditional rulers and other lobbyists in the appointment of judicial officers has the tendency to compromise integrity and objectivity, ultimately. This is so because these lobbyists and god-fathers themselves have serious cases pending in various courts, ranging from election petitions, matrimonial disputes, commercial matters, land disputes and even tenancy.

In some States, names were circulated after the exercise has been concluded, thus foisting a fait accompli on all stakeholders. Starting from the time a candidate for judicial appointment indicates his interest in the job, his particulars and credentials should be made available to the NBA Branch in his domain, for proper scrutiny. The era of reading about the appointment of judges in the news should cease. Thus, we all can help judges to overcome one of the major challenges facing the judiciary in Nigeria by properly scrutinizing all candidates for this hallowed office to ensure that only persons with proven integrity, intellectual competence and sound body and mind, get to the bench. As it is said, if we keep doing the same thing over and over again, we are bound to get the same result.

FUNDING OF THE JUDICIARY

It is no longer profound to note that the Judiciary has remained the most under-funded and unarmed tier of government. The saddening reality is that in Nigeria, the power of the purse resides in the Executive and the Legislature to the exclusion of the Judiciary. As long as the judiciary remains denied funds by non-cooperating Executive and ridiculed by the Legislature in failing to put firmer rules that guarantee a true financial independence of the judiciary, the Judiciary will continue to remain dependent on and subject to the other arms of government for its survival.

Yes, sections 84 (2) (4) (7) and 121 (3) of the Constitution seemingly grant financial autonomy to the Judiciary by providing that the recurrent expenditure of judicial officers of the Federation and the States shall be drawn by a charge upon the Consolidated Revenue Fund of the Federation/ State, but there does not appear to be any provision that specifically addresses the issue of capital expenditure for the Judiciary. At times we are tempted to see the Judiciary, rather than a distinct arm of government, as an appendage of the executive arm of government to which it must go cap in hand begging for funds.

The lack of funding therefore affects the infrastructure, working environment, inadequate number of judges, take-home pay of judicial officers and judicial staff and ultimately their performance. I appeared before a Judge in the Epe Division of Lagos State High Court recently and I was shocked to see the conditions in which Judges are forced to remove their robes and conduct proceedings in a poorly ventilated courtroom due to inadequacy and non-functionality of stand-by generators to power the courts.

One can now understand why there could be an avalanche of backlog of pending cases due to a relatively few number of judges carrying out their adjudicatory duties (without state of the art technological facilities) and under the most strenuous and uncomfortable environment in modern society. Conversely, the health and well-being of the judge is grossly affected by the state and welfare of the judiciary to which some judges have been known to develop underlying illness and forced into early retirement.

If the Judiciary is indeed seen as one of the arms (the third arm) of government, we should take a step back and ponder in comparison the working conditions of a Judge with that of a Senator, who is in the legislature and a Minister or Director-General of one of the respective ministries, departments and agencies under the Executive. One will thus be aghast by the huge disparity in terms of the volume of work they do, allowances, perquisites and general facilities accorded to these three distinct officers representing the three arms of government. It is little wonder why passionate and qualified legal practitioners no longer find the bench attractive enough to give up their successful private practice in service of the nation.

The Nigerian Bar Association therefore has a role to play in canvassing for true financial autonomy for the judiciary. We must get the Executive to treat the Judiciary as it does the Legislature. The implementation of judicial autonomy by some State governors is therefore a welcome development but it must not stop there. The respective judiciary of the States, like the other arms of government, must exercise the full autonomy of preparing their budget and presenting the same before the State Houses of Assembly for approval. In the United States, once the Congress appropriates the funding for the American judiciary, the money goes directly to it after being signed off by the President. The practice there is to present the budget proposals a year ahead, just like the rest of the American budget, which gives the stakeholders enough time to work on the process. We should also take a cue from England, which our judicial system was fashioned after. There, the salaries and funds of judicial officers are further secured via investment in the stock markets. In this regard however, the respective Chief Judges of the States in Nigeria must be made more accountable for the funds allocated and disbursed to the Judiciary under their tenure.

We were all shocked as a nation when the President of the Court of Appeal at the 2021/2022 Legal Year held recently stated that the Justices of the Court of Appeal are among the least paid in Africa. Below is the report as monitored in the news media.

“The President of the Court of Appeal, Monica Dongban-Mensem, on Monday, appealed to the federal government for an upward review of the salaries of judges. Mrs Dongban-Mensem, who spoke at the maiden edition of the Court of Appeal’s 2021/2022 new legal year ceremony in Abuja, revealed that salaries of judicial officers had stagnated since 2007.

She lamented that the CJN who heads the judiciary earns only N279, 497 as monthly salary, while his colleagues on the Supreme Court bench go home with monthly pay of N206,425. The Appeal Court President revealed that she receives the sum of N206,425, while other justices on the bench of the Court of Appeal go home with N166,285 every month.

Lopsided

Drawing a comparison between African, Commonwealth countries and Nigeria, Mrs Dongban-Mensem said the salary structure for judicial officers and staff in Nigeria have consistently ranked poorly when compared to that of their counterparts.

She called on the federal and state governments to live up to their obligations under the implementation of financial autonomy of state legislature and the state judiciary order, 2020, known as Executive Order 10.

“I implore the government of the federation and states to urgently review the salaries and allowances of judicial officers and staff. The salaries of justices are static with no graduation as in the civil and public service. We have been on one salary grade for over 10 years now.

“May I also call on the government to increase financial allocations that will enable us to introduce technical innovations that would improve adjudication,” she said.

At her valedictory service some years ago, a former Supreme Court Justice, Hon Justice Olufunlola Adekeye lamented that she was retiring without a house of her own to stay. In all, even if the funding of the judiciary is not at par with the Legislative and Executive arms of government, there must be a close similarity for the Nigerian Judiciary.

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