A free judiciary

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A free judiciary no doubt is the antidote to tyranny. In The Federalist Papers, the men who drafted the United States of America’s constitution stated that the “independence of judges is equally requisite to guide the constitution and the rights of individuals.” So, without an independent judiciary, the constitution however well-crafted is imperilled and rights of members of the society are abrogated at the whims and caprices of those who wield political power.

Unfortunately, since the advent of the present republic in 1999, both the executive and the legislature have treated the judiciary as the weakest partner of the presidential tripod. But all that may soon change if the Chief Justice of Nigeria (CJN), Hon. Justice Ibramim Tanko Muhammed, carries out his threat. The CJN spoke at the special session of the Supreme Court to mark the commencement of the 2021/2022 Legal Year and the swearing-in of new Senior Advocates of Nigeria (SANs).

He thundered: “with time, those taking the judiciary as a mere weakling will soon realise that it is from the calmest seas we often experience the fiercest storms. The time to oppress, suppress, and intimidate judicial officers is gone.” While the government of President Olusegun Obasanjo was notorious for ignoring court judgments, it is under President Muhammadu Buhari that embarrassing the judiciary became a pastime. The height was the sacrilegious manner the immediate past Chief Justice of Nigeria, Justice Walter Onnoghen, was ignominiously removed from office.

To compound the query on the integrity of the present government with respect to disgraceful treatment of judges, the former CJN, Justice Onnoghen, laid a weighty allegation that he was removed from office because of an unfounded allegation that he met the presidential candidate of the Peoples Democratic Party (PDP), Alhaji Atiku Abubakar, in Dubai to plot strategy to nullify the re-election of President Buhari in 2019. This column is not aware that the presidency has refuted the allegation.

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While the present CJN may have benefited from the impudence of the executive which removed the immediate CJN from office in an unlawful manner, he has vowed that such shenanigans would not be allowed again. His worries are well founded if the latest executive rascality against the judiciary is a pointer. With the manner a low ranking judicial officer – a magistrate was subpoenaed by hideous forces in the executive branch to embarrass the second highest ranking judicial officer, Justice Mary Peter-Odili, it is obvious that the forces of evil are not far off from the door steps of the apex court in the land.

In the words of the CJN: “I must say, we were jolted with embarrassing news of the invasion of the official residence of one of our brother Justices, Hon. Justice Mary Peter-Odili, on Friday 29th October 2021, by men suspected to be security operatives, acting on a search warrant purportedly obtained from an Abuja Magistrate Court under questionable circumstances.”  He went on: “I must make it known to all and sundry that we have had enough dosage of such embarrassment and harassment of our judicial officers across the country and we can no longer take any of such shenanigans.”

To further embarrass the judiciary, the executive branches at state levels have refused to give effect to the constitutional provision granting financial autonomy to the judiciary. Despite an executive order by President Buhari, the governors continue to act in complete disregard of the Fourth (Constitution) Alteration Act, 2017, section 121(3)(b) which provides that “any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the state shall be paid directly to the said bodies respectively; in the case of the judiciary, such amount shall be paid directly to the heads of the courts concerned.”

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From the foregoing, there is no doubt that the CJN is justifiably angry over the treatment of the judiciary and should feel threatened by the callous indignity meted on his constituency by the executive branch. But the CJN has indicated that he is not helpless. He said: “The silence of the judiciary should never be mistaken for stupidity or weakness. By the nature of our work, we are conservative but not conquered species and should not be pushed further than this by any individual, institution or agency of the government.”

In what one may term the clincher, he hollered: “No one, irrespective of his or her status or position in the country, should test our will because the consequence of such unwarranted provocation will be too dire to bear.” As a citizen desirous of the benefits of an independent judiciary, and a legal practitioner, who needs judicial independence to ply my trade, I must confess that my sympathy lies with the recent activism of the CJN to defend the independence of the judiciary.

But I believe there are limits to what the judiciary can do to safeguard its independence and autonomy as guaranteed by the constitution. While no doubt the judiciary has enormous constitutional powers, it can only determine the issues raised in matter brought before it. The judiciary does not have the liberty of the other arms of government to act mala fide. For instance, it cannot by itself with intent to punish, call up the issue of the election of the governors earlier adjudicated upon, and nullify same to teach the executive a lesson.

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Again, it cannot by itself concoct a false allegation or even a genuine claim against a member of the executive, who has been trenchant in subjecting the judiciary to ridicule, and commit the person to jail, or at least publicly embarrass him. For instance, the judiciary cannot by itself, summon those who engaged in the dastardly act of invading Justice Peter-Odili’s home, put them on trial and punish them. To bring the culprits to account, the judiciary must wait on the executive branch to act.

Perhaps, such limitation may be one of the reasons why some clamour for the separation of the office of the attorney general from that of minister or commissioner of justice, in the constitution. They argue that if the office of the attorney general is made a non-political appointment, the appointee can then in deed and act, be the chief law officer of the country or the state, as the case may be. If there is such an office holder, he would have since brought those who invaded the houses of the justices of the court, and all those who disobeyed orders of court since 1999 to account.

So, to guarantee a free judiciary, we must turn enact adequate laws to safeguard the judiciary. After all, both the governed and the governors need a free judiciary to succeed. More so, we should save the CJN from the lamentations of the biblical Rachael.

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