By Onikepo Braithwaite
Temptation and LKY
With all due respect to Judicial Officers, especially those who have remained faithful to their Oath of Office, some home truths must be told about the Nigerian Judiciary, no matter how embarrassing; with the hope that Government will immediately address some of the issues, which are the root causes of what many now have come to refer to as the rot in the Nigerian judicial system. Recently, when the Chief Justice of Nigeria, Hon. Justice Ibrahim Tanko Muhammad CFR (CJN) was swearing in the new Court of Appeal Justices, he advised them not to succumb to temptation. Some people complained that, the CJN should not have made such a statement; but the fact is, he was only speaking the truth, because those who lack financially are the softest targets for falling prey to temptation. And, even though we certainly expect a high level of morals and integrity from judicial officers, at the end of the day, they are human beings like anybody else (not super humans or saints), who have responsibilities for the upkeep of their families (especially the men who may be the sole breadwinners of their families). I am not in any way trying to justify corruption or bad behaviour in the Judiciary, but, rather, I am trying to draw our attention to the plight of judicial officers, who by virtue of their remit, are unable to voice their complaints since their demeanour is expected to quiet, guarded and of the highest etiquette.
We like to use Lee Kwan Yew (LKY), Lawyer and former Prime Minister of Singapore, and how he turned his country around as an example, but we fail to follow his example – he tried to create a more equitable society in which Civil Servants, the Judiciary etc, were not just paid living wages, but were well paid, so that there would be no reason to envy those in the private sector or who were well-to-do, and no need for corruption. As the economy became more buoyant, even pensions were increased, to reflect the improvement. Can we say that the same obtains in present-day Nigeria? No. My point? In trying to stamp out corruption, LKY’s Government played it’s own part, and ensured that all workers were adequately remunerated, unlike here where just a minute fraction like the National Assembly are overpaid. On the contrary, the Nigerian middle class which judicial officers formerly belonged to, has been eroded in great part by negative and inequitable Government policies, leaving only the top class, which includes Politicians, a few businessmen and the corrupt, and the bottom class, which the judicial officers and other workers now find themselves belonging to, along with the impecunious.
Inapplicability of the Doctrine of Separation of Powers in Nigeria
I have maintained for quite a while that Baron de Montesquieu’s Doctrine of Separation of Powers which states that the three arms of Government, that is, the Executive, the Legislature and the Judiciary are independent and co-equal (See Section 4-6 of the 1999 Constitution of the Federal Republic of Nigeria), is not applicable in Nigeria, as the Executive takes first place, the Legislature second, and our Judiciary, a distant third place.
Aside from the fact that when the hierarchy of the Nigerian Government is listed anywhere in order of seniority, it is listed thus: President, Vice President, Senate President, CJN, and Speaker, House of Representatives, another area in which the Judiciary’s relegation can be seen, which is an aspect which people do not readily pay any attention to, is in the area of National Honours. The award of National Honours was established by the National Honours Act No. 5 of 1964, to reward those who have distinguished themselves in their various endeavours, or served the country admirably in one way or the other. If the Judiciary is equal to the Executive, why is it that only the President is awarded the Grand Commander of the Order of the Federal Republic (GCFR), while the CJN (and Senate President) can only get the lower award of merit, that is Commander of the Order of the Federal Republic (CFR) or Grand Commander of the Order of the Niger (GCON)? In the past, Supreme Court Justices were awarded with the Commander of the Order of the Niger (CON), but it seems that apart from the CJN who is a Commander of the Order of the Federal Republic, the other Supreme Court Justices have not been awarded with National Honours, despite being more than overdue for it. Let’s hope that they will be part of the next award exercise.
These days, aside from the fact that the Legislature is perceived to be a rubber stamp on the decisions of the Executive as opposed to being a check and balance on it, the Judiciary has been made to depend on the Executive for its funding at both the Federal and State levels (even on a day-to-day basis), thereby eroding its independence and role as a check and balance on the Executive, seeing as it is difficult to bite the hand that feeds you. In short, our system has been structured to disfavour the Judiciary, overwork it, underfund it, and make it subservient to the Executive from the get-go, both at the Federal and State levels.
The most obvious departure we can see from Montesquieu’s doctrine as it pertains to Nigeria, is that of remuneration. The call to the Nigerian Judiciary, unlike that of the Legislature and Executive and a lot of its Judiciary contemporaries around the globe, is a call to poverty. Even the Catholic Priests who take a vow of poverty, live more comfortably than our judicial officers, and are taken care of in their retirement until death! The vow of poverty does not permit the Priests to own property, but even at that, it is unlikely that they can be rendered homeless in their retirement (like many of Judges are), since they can possibly reside in an accommodation in a Parish, or even be provided with a comfortable home, courtesy of their Parishioners.
The President of the Court of Appeal’s Plea
Last Friday, I watched a news clip of the President of the Court of Appeal, Hon Justice Monica Dongban-Mensem (PCA) delivering her address at the beginning of the 2021-2022 Legal Year, and frankly, I felt sad and ashamed when she was reeling off the basic salaries of judicial officers – their remuneration is definitely poor, including that of the Supreme Court Justices – just a few notches above that of clerks! From the figures Her Lordship mentioned, it seems that the monthly ‘newspaper allowance’ of Senators (just over N300,000), is higher than the monthly basic salary of the CJN and all the Appellate Court Justices!
Her Lordship quoted former President of the Court of Appeal, Hon, Justice Mustapha Akanbi CFR (of blessed memory) in a publication titled “The Main Obstacles of Justice According to Law”: “That a good judgement flows from a mind that is not bogged by the thought of – where do I get my next meal? Or where do I get the money to pay my son’s school fees? Poor conditions of service, disturb the mind. It is an obstacle to clear and positive thinking”. The PCA therefore, made a passionate appeal, saying: “We therefore, call upon the Federal and State Government to live up to their obligations under the law. I also implore the Government of the Federation and the 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 scale, for over 10 years now”. Let me make use of a practical example here. A judicial officer of the appellate courts who earned a monthly basic salary of approximately N250,000 10 years ago (many earn a bit less), earned about £1,000 (with an exchange rate of roughly N250 to £1). Today, still earning N250,000 – about £445 (at the CBN exchange rate of roughly N561 to £1, the parallel market is much worse, in excess of N700 to £1), about N200 better parallel market), over 200% less in real terms! Meanwhile, school fees, the prices of food stuffs, petrol and diesel – basic essential commodities, have obviously risen astronomically.
Some are quick to say that, if you are not satisfied with your remuneration as a judicial officer, why not quit and get another job? The response is, is it that easy to secure a job in Nigeria where people remain unemployed for years, where graduates have to do menial jobs just to survive, especially after having passed the employment age? I think not. Also, having served as a Judge in Nigeria, there are restrictions on how you can practice law thereafter, including not being able to appear as counsel in court. The irony is that, being a litigator would probably be the ‘forte’ of a former Judge and the area in which they would be able to excel, as a result of the experience garnered from being a judicial officer.
Apart from Lagos and Rivers State who provide accommodation for Judges, even after retirement, the same cannot be said to obtain in other States or Federal Courts. What about the Magistrates? Their fate is obviously worse, in all ramifications.
I was shocked when I heard the amount that Supreme Court Justices were given upon retirement, to secure accommodation. Again, let me give a practical example. When the Supreme Court was still situated in Lagos, Justices were given accommodation in Ikoyi, the best residential area in Lagos at the time – detached houses with three or four bedrooms. Then upon retirement, they are given an amount of money which will not buy them a house even in VGC, GRA Ikeja or the Opebi/Allen part of Ikeja, or even a two bedroom flat in Lekki Phase 1 or a house in the better part of Surulere! With their package, they would be aiming for outlandish areas like Ilasamaja, Ipaja and the like. For other Judges, it is ‘to your tent, O Israel’. They are left to look for alternative accommodation to rent in cheap neighbourhoods, due to lack of funds and low pensions. Yet, a Governor who serves for a maximum of eight years, has a fabulous pension including a house in a high brow residential area of his State.
While Federal Legislators at least, are given brand new state of the art cars when a new administration cycle commences every four years, Judges are not. Some Supreme Court Justices use their vehicles, for six years or more. In the past, it was not unheard of, for the vehicles to be taken back from the Supreme Court Justices upon retirement. I know of a case in which, upon retirement, the vehicle was repossessed from his Lordship.
The Wheels of Justice at the Apex Court
Then there’s the argument that the wheels of justice are slow, especially when you get to the appellate courts, particularly the Supreme Court – in fact, the Apex Court Justices have been much vilified for this. Even if the Supreme Court was at its full constitutional capacity of 21 Justices, the question is, why wouldn’t the wheels of justice still be slow? The case we reported in our publication today, is a case involving a dispute between DHL (the courier service) and its customer. I wonder what such a matter would be doing at the Supreme Court, taking up precious time! Even Landlord and Tenant disputes originating at the Magistrates Court, lie to the Apex Court! The Supreme Court has virtually been turned to a playground by litigants, especially Politicians, and even our colleagues, who, in a bid to ramp up the number of cases they have handled, file the most frivolous appeals.
The truth is that, many of the matters that lie to the Supreme Court, have no business going past the Court of Appeal. Let’s restore the dignity of our Apex Court, by streamlining the appeals that can lie to it; and indeed, the role of the Court of Appeal as an appellate court, instead of the transit intermediary court that it has been turned into.
Again, in the past, only Presidential election petitions reached the Supreme Court. Today, not just Governorship election petitions, but every other matter pertaining to the political process, right from the question of qualification of candidates to run for office, primaries and so on, reach the Supreme Court, and they are time-bound! The time-bound never-ending political matters, then clog up the dockets of the appellate courts, especially the Supreme Court, leaving other matters to suffer delays. Even if the Supreme Court Justices were increased in number to one million, as long as every little matter is allowed to lie to them, the wheels of justice will not move any faster.
There is so much to do, to get our judicial system to run optimally. However, better conditions of service for judicial officers, is one crucial assignment that must be undertaken by Government, in order to improve the administration of justice sector. My dear colleagues, kindly, share your thoughts on this issue. Thank you.