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ABSTRACT The increasing reliance by Nigeria polity on the court to decide major issues and public interest has also brought it into sharp focus. Informed opinions on the Judiciary in Nigeria varies between those who believe that the “Judiciary is dead” or 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 behaviours of the judges and their independence, impartiality and integrity. While the above metaphors may be subject to various interpretations, they do raise consideration, curiosity and interest as to why any Judiciary should attract such comments and perhaps to what extent the concepts are justified. This paper examines whether the independence of the Judiciary in Nigeria is a myth or reality and concludes that the high sounding constitutional provision relating to judicial independence has no bite and what could have been constitutional guarantees of judicial independence is no more than a slogan in Nigeria thence calling for reforms. Key words: Independence, Judiciary, Judicial Independence and Judicial Powers. INTRODUCTION The central trust and objective of this paper is to look at the independence of the Judiciary in Nigeria whether it is a myth or reality and to conclude with recommendations. Of the three arms of government, the Judiciary is the branch of government that enables our decisions to be translated into law, the justice of which must be apparent. The Judiciary has the duty of directing society to the attainment of justice. Institutionally therefore, the Judicial process is in a sense the heart of any political system even in the must organized societies, the role of the leader in settling disputes was perhaps, the most important and most frequently performed. That the nations Judiciary is currently passing through a difficult and traumatic phase in its annals is quite obvious and certainly not in doubt. It is a phase which is evidently marked by deep loss of faith in the judicial process and the courts. Claims of ethnic lopsidedness in the composition of the Federal Judiciary, serious allegation of corruption, ineptitude, laziness, incompetence against judicial officers, charges of abuse of office even against the Supreme Court judges in the discharge of its judicial functions and stemming out from want of judicial independence are bound. The above has prevented the Nigerian Judiciary over the years from acting as a check on the excesses of other arm of government within its constitutional boundaries. This paper posits that the lack of independence of the Judiciary in Nigeria has paved the way to the myriads of problems bedeviling the Judiciary ranging from lack of courage and temptation to corruption in deciding political cases especially the determination of election petition, appointment of judges, security of tenure and remuneration, institutional autonomy, judicial accountability, adequacy of resources for the courts, media and societal pressure and scope of judicial power and justifiability greatly affects the Judiciary. It is now apt to look at some conceptual clarifications. MEANING OF INDEPENDENCE, JUDICIARY AND JUDICIAL INDEPENDENCE “Independence” has been defined by Black’s Law Dictionary as the state or quality of being independent especially a country’s freedom to manage all its affairs, whether external or internal, without control by other countries. THE JUDICIARY The judiciary constitutes the arm of government that interprets the law of the state and applies the existing law to individual cases. In any modern states, the liberty of individuals depends upon the fairness of the courts in providing protection against the tyranny of overzealous members of the government. In Nigeria, the Judiciary is made up of a large number of courts, ranging from the Supreme Court, appeal courts, High courts and down to magistrate and customary courts. The judiciary consists of judges who are honest and impartial with sound legal knowledge. The word “Judiciary” has been defined as the system of court of justice in a country. The department of Government charged or concerned with the administration of justice, the judges, taken collectively, as, the liberties of the people are secured by a wise and independent Judiciary. The term in its current use, is used in describing the method of selecting judges in a state or country; as an adjective of appertaining to the administration of justice or the court”. Judiciary has equally been defined as “The judges of a state collectively”. Therefore, Judiciary is a collection of all judges be it first instance of trial judges or appellate judges. From these definitions, the Judiciary can be summarized up to mean that branch of government in a democratic system of government of the people, by the people and for the people” JUDICIAL INDEPENDENCE There appears not to be a précised definition of what judicial independence means. However, in simple terminology, judicial independence can be defined as the ability of a judge to decide a matter free from pressures or inducements. The Judiciary as an institution, judicial independence means the ability of the Judiciary to be independent by being separate from government and other concentrations of power. The principal role of an independent Judiciary is to uphold the rule of law and to ensure the supremacy of the law. An independent judiciary is one which is free from the interference of the other two arms of government, the executives and legislature. Judges should be free when interpreting the laws of the land; they should work without fear or favour. Unless the judiciary is independent, it will not be able to pass judgments impartially. Besides, it will not be able to defend citizens against wrongful use of power by an unpopular head of state. Therefore, the independence of the judiciary is a necessary if people are to enjoy their rights and freedom. RESPONSIBILITY ALLOCATED TO THE JUDICIARY BY THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 OF ITS ROLE TO THE SOCIETY The vesting of judicial powers in the courts established by the 1999 Constitution imposes numerous responsibilities on judicial officers whose primary function is to administer justice according to law and the constitution. The nature of the office and functions of judicial officer’s call for a high sense of duty, responsibility, commitment, discipline, great intellect, integrity, probity and transparency. So important is the place of Judiciary in the scheme of things that the constitution forbids the legislature from enacting any law that “Oust or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law”. The Judiciary been the third arm of government has the onerous function of interpreting the laws. Its functions may be expressed in the latin words jus-dicere non jus dare which is to declare the law and not make one. It is for the judge to declare the existing law and not make one (Judicis est jus dicere non dare). This principle was confirmed by the Supreme Court per Bairamin F. J. in OKUMAGBA VS EGBE thus “Feeling that the appellant deserve to be punished, the chief magistrate replaced the word “another candidate” by the words “any candidate” and thus enable himself to punish the appellant. In effect, he amended the regulation, but amendment is the function of the legislature and the courts cannot fill the gap which comes to light by altering the words of a regulation to make it read in the way he think it should have been enacted. As Lord Bacon said in his essay on judicature, the office of a judge is jus dicere non jus dare to state the law not to give law, and the court below should not have gone in for judicial legislation. It should be noted that though election petition are said to be sui-genesis, they are concerned with the political rights and obligations of the people particularly those who consider their rights injured by the electoral process and need to ventilate their grievances. Such people ought to be encouraged to do so with some latitude knowing that in the process of initiating proceedings to ventilate their grievances, mistakes, such as those in the instant case may occur since the intention of the Electoral Act and the laws employed in litigation are geared towards ensuring that substantial justice is done to the parties at the expense of technicalities, any conclusion that tends to shut out an aggrieved part from the temple of justice by not hearing him on the merit ought not to be encouraged in the interest of peace and democracy. LIMITATIONS ON THE EXERCISE OF JUDICIAL POWERS The exercise of judicial powers is not absolute. It has certain limitations summarized as follows: • The general principle under the common law as applied in our court is that the court in the course of adjudication ought not to answer hypothetic questions. • Nigerian judges cannot commonly apply their powers until someone brings a case before them. They lack the power of self starter. Thence, the court cannot initiate the power of reviewing legislative and executive acts. They must be moved and or initiated by someone. ESSENTIALS FOR THE INDEPENDENCE OF THE JUDICIARY • Appointment: Judges and magistrates should not be appointed by the executive or the legislature; they should be appointed by a neutral body such as the judicial service commission. • Independence of the judiciary: Judges must be independent from the absolute control of either the executive or the legislature. The judges should be free from arbitrary control. • Promotion of judges: Promotion of judges should also be done by an independent body. • Remuneration: The salaries and allowances of judges should not be subject to frequent alterations and must be sufficient. To promote this, they are paid from the consolidated account. • Security of tenure: No other arm of government should have the power to remove a judge, he has to remain in office as long as he is of good behavior and free from corruption. • Immunity: Judges must be immuned from the law so as to discharge their duties without fear or favour. • Judges must not belong to any political party: They must not belong to any political party so that they would not be influenced by the political tide. • Extra security: Security should be provided for judges in and outside the courts so that they will not be intimidated. • Budgetary provisions (process). • Individual and institutional freedom from unwarranted interference with the judicial process by the executive arm of government and politicians. The road is now clear to expatiate on these basic elements and draw examples as to their applicability in contemporary Nigeria. 1.Appointment and Removal of Judicial Officers and Judicial Staff : To have a vibrant Judiciary, care must be taken from the onset in the selection or appointment process. Care must be taken that only highly trained, competent, ethical and intelligent men and women are recruited. They must be creative because their creative role in the society is important in carrying out their responsibilities to ensure a balanced society. More so as their decision becomes prudent which will and in the development of the law. 2.Underscoring the importance of appointing competent judicial officers to the bench, Charles Evans Hughes states: “A poor judge is perhaps, the most wasteful indulgence of the community. You can refuse to patronize a merchant who does not carry good stock, but you have no recourse if you are haled before a judge who’s mental or moral goods are inferior. An honest, high Security of Tenure and Remuneration of Judges and Supporting Staff. It is said that Magistrates, Area and Customary Court Judges and Shariah Court Judges are under the Constitution of the Federal Republic of Nigeria not covered by the term “Judicial Officers”. They are appointed, promoted and subjected to disciplinary control by the various states Judicial Service Commission, even though they perform the bulk of judicial work and closer to the grassroots, their usefulness is undermined. One wonders why they can be referred to as non judicial officers. Remuneration at the Superior Courts of records level has been greatly improved upon in recent years even though there can still be room for improvement, compared with their colleagues in other developing and transition states particularly having regard to the volume of work and the environment in which they operate. The major problem has to do with judges of the lower courts. They are not covered. They take home peanuts. Their salaries, allowances, environment and social facilities both in their places of work and family matters are pathetic. This paves way for manifest corruption and ineptitude and generally lack of seriousness to work. Notwithstanding, the improved salaries of the Superior Courts of records, allegations of corruption, continuously rears its ugly head in the cause of public discourse and judges of superior courts have been dismissed on proven allegation thereby casting a huge question mark on the independence of the Nigerian Judiciary. Only recently, some justices of the Court of Appeal were dismissed by the National Judicial Council for receiving bribes on the course of hearing of election petition cases. We also witnessed the probing of judges of the High Courts, a Customary Court of Appeal judge, and a Shariah Court of Appeal Judge who were investigated and arrested by security operatives for allegedly carting away large sums of money in Akwa Ibom State in an election petition tribunal. Two factors propel judicial officers to engage in corruption namely: Greed- This simply means that some judges want to style themselves after the ostentations lifestyles of politicians. They want to own duplex or skyscrapers in Dubai; they want to go to France and USA for long term holidays and invest in practically all the known business of the world and most importantly even take chieftaincy titles. Habit– There seems justification to conclude that some judicial officers appeared to carry over this habit from the lower bench to the higher bench. Budgetary Provisions (Process) The involvement of the Federal Government of Nigeria and State Government as the case may be in the budget process of Courts in Nigeria is an indication of the extent of judicial independence in Nigeria. Unchecked domination of one branch over the other can produce dysfunctional budgetary allocation process. In Nigeria, this plays down especially at the state level. Clear out constitutional provisions are recklessly ignored by the Governors of the States particularly with regards to capital expenditure for state judiciaries. The constitution provides: “Any amount standing to the credit of the Judiciary in the consolidated Revenue Fund of the State shall be paid directly to the heads of the Courts concerned”. This provision rather than be complied with by the State Government is often breached especially where the head of Court within the state is not in the good books of the Governor of the State. This dysfunctional budgetary allocation has given rise to disastrous situation for the Judiciary. Absence of funds can lead to non-availability of physical structures or grossly inadequate structures like Court halls, chambers, Registries and offices for supporting staff which will in turn affect the flow of cases and other essential services thus leading the system not been able to face the demand and deliver the requisite justice demanded. Sometimes salaries and allowance of supporting staff can be too low and in arrears for months thereby creating an atmosphere of frustration and discontentment, which normally breeds indiscipline corruption and eventually breakdown of the system. Individual and Institutional Freedom from Unwarranted Interference with the Judicial Process by the Executive arm of Government and Politicians. The history of the Judiciary around the world demonstrates that the greatest danger of interference counsel from other government institutions or political parties. An independent Judiciary must not only be independent in unwarranted interference with the judicial process by the executive arm of government and politicians but it must appear to be independent. This brings into operation the popular adage “Justice must not only be done, but also must seen to be done”. To remain just, the courts must not be influenced by any outside sources or appear to be capable of such influence. To aid such a perception, they must have no real or apparent contact with a political party. If such contact exists, they would appear to be bias in favour of the policies of that party or if the party controls the state, to be biased in favour of the state, succumbing to pressures from the executive arms to inappropriate interference with judicial independence. Access to judges outside official channels has been one of the greatest problems that further threaten the independence of the Judiciary in Nigeria. Governors of states have direct access to judges within the state even as it relates to matters in court and lawyers and clients often boast of their accessibility to judges or even to panel of an election petition hearing particular cases. The unresolved saga between the out gone Chief Justice of Nigeria and the embattled President of the Court of Appeal is an example. Thence the unbridled access to judges and justices amount to self erosion by the Judiciary of the principle of independence of the Judiciary. What is more, judges, drivers, stewards, gardeners, salesmen, orderlies, registrars and other staff reveal information as to who visits their boss to the outside world. Research Centre for Management and Social Studies Intimidation and lawlessness by members of the executive especially Governors abound Governors show contempt to court order when it does not please them and even the legislators. One wonders the justification where legislators had the impudence to summon a Chief Judge to come and answer question in connection with appointment in a Court of Appeal, a Court when the Chief Judge had no influence whatsoever, or a situation when a state police commissioner refuses to comply with a High Court order on seven successive occasions. Court Pronouncements This is however not to say the Judiciary have not at all performed creditably in some spheres of human endeavours. The courts have made notable pronouncements in the judgments delivered during this democratic dispensation, testing the supremacy of the constitution are the interpretation of the laws used by the government in the pursuit of its economic policies like Revenue Allocation to states and local governments. The Courts also made pronouncement on funding of newly local government in Lagos State, this decision must have paid the way for the promulgation of the “Monitoring of Revenue Allocation to Local Government Act 2005”. The Courts have also decried recklessness in the registration of political parties by its decision in INEC Vs MUSA and more recently, the tenure of the five Governors on tenure elongation PROBLEMS/ENCROACHMENTS ON THE INDEPENDENCE OF THE JUDICIARY • Political appointments: In some countries, the appointment of judges is influenced by the executives. The executive have often used their power to appoint persons known to support their policies. • Decrees: Military regimes promulgate decrees that cannot be challenged in the law courts. • Disrespect of court decision/order: Sometimes, the decisions of the law courts are disobeyed by the executive. • Government based on dictatorship: Dictatorial governments have the ability of interfering in the activities of the judiciary. Such government comes up at times with obnoxious laws. • Inadequate facilities in the courts: For instance, stationery, light, water, verbatim reporting machine are lacking in courts today etc. • Political interference: Often times, the decisions of the court may unduly be influenced by the other arms of government. • Backdating of laws: In Britain for instance, no court can question the acts of parliament because of its supremacy. The parliament can even backdate laws to favour a particular individual, e.g a politician and thereby render decisions of courts useless. • Insufficient personnel: There are few judges to deal with large volumes of cases, leading to delays in the treatment of cases. • Bribery and corruption: Bribery and corruption lead to lack of confidence in the judiciary. • Poor conditions of service: Poor conditions of service of the judicial officers are some of the problems facing the judiciary. • Setting up of tribunals: Sometimes people making up the tribunals do not have proper legal training hence cannot interpret the laws adequately. CONCLUSION The Judiciary is the mighty fortress against tyrannous and oppressive laws. The importance of the Judiciary cannot therefore be over emphasized. It is not an overstatement to assert that an independent Judiciary is the greatest asset of a free people. The Judiciary by the nature of its functions and role is the citizen last line of defense in a free society that is the line separating constitutionalism from totalitarianism. I however need to appreciate that the position of the Judiciary in a democratic setting is a delicate one. More often than not, the Judiciary has been the sacrificial lambs on the altar of societal imperfection and contradictions. When politicians rig election, it is the Judiciary that is called upon to decide who actually won the election. Again, when politicians loot the nation’s treasury in their unconscionable quest to become millionaires and billionaires, it is in the judges that are called upon to hold the tribunals to inquire into their activities or to try them, and so on and so forth. In other circumstances, the Judiciary finds itself in a no win situation and whichever party loses readily cast aspersion on the integrity of the presiding justices. This is the unfortunate lot the Nigerian Judiciary finds itself today. Interestingly, the constitution itself as interpreted by the courts lied against itself in section 17(2) (e) of the 1999 Constitution. The section provides: “The independence, impartiality and integrity of the courts of law and easy accessibility thereto shall be secured and maintained” Impressive as this provision may appear to be, it is however placed under Chapter II of the ‘Fundamental Objectives and Directive Principles of State Policy” whose provisions are non justifiable by virtue of section 6(6) (c) of the Constitution. Thus the high sounding declaration of section 17(2) (e) of the Constitution has no bite and what could have been a constitutional guarantee of judicial independence is no more than a slogan in Nigeria. SUMMARY The judiciaries as the third arm of government interpret the laws made by the legislature. Judicial independence is the ability to decide a matter free from pressures and inducement. The judicial are independent on the legislation or executive arm to interpret the constitution made by the legislature. Judicial independence is the ability of the judiciary to be independent by being separate from government and other arms of government. The judicial uphold the rules of law and ensure supremacy of law. The vesting of Judicial powers in the courts established according to the 1999 constitution imposes numerous responsibilities on Judicial officers who primarily administer justice according to law and the constitutions of the state. RECOMMENDATIONS To revive the seemingly lost confidence in the Judiciary and boost the independence of the Judiciary, the following recommendations are proffered: 1. States governments should be made to uphold and comply religiously with the provisions of section 121(3) of the Constitution of the Federal Republic of Nigeria 1999 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 heads of court concerned” and default in doing so should be criminalized. 2. There is the need to diversify the pool from which judicial appointments are made in view of the declining intellectual depth and overall quality of the judgments of some judges in Nigeria which are often conflicting. Review of criteria for appointment of judicial officers to include qualified candidates from the bar, academia and industry is advocated. 3. There is the need to experiment inter- state transfer of judges. 4. Every obstacle to justice must be removed in the discharged of duties of judicial officers. In a developing community such as Nigeria, there is the need to devise the vision and objective of justice and the rule of law. Government should in their economic reform programmes also take the Judiciary into consideration as failure might lead the economic reform programmes becoming unsuccessful. 5. Magistrates, Area Courts, Sharia Courts and Customary Court judges as well as Chairmen of the Rent Tribunal of the various states should be treated as judicial officers especially as far as salaries and tenure of office are concerned. 6. Corrupt judges should be further wiped out by applying an experimental practice of “detection by deception” which hopefully will be very effective in detecting corrupt judges and lawyers alike. 7. Chapter II of the 1999 Constitution should be justifiable by judicial activism. REFERENCE Bouvier’s Law Dictionary 3rd Edition at p. 1756. Daudu J. B. “The Independence of the Nigeria Judiciary in the light of Emerging Socio-Political and Security Challenges”. A key note speech available at htt//www.nba.org.ng/web/theindependenceofthenigerian judiciary retrieved on 5/7/2014, p. 1. Guardian of Monday 4th April 1994, p. 24 with a story captioned “NBA set to prove Corruption Charges against Judges” See also Weekend Concord of Saturday, December 11, 1993 with the lead story “Chief Justice Muhammad Bello Kick him out that, Lawyers Demand” and Tell Newsmagazine of February 7th, 1994 with the lead story “The Supreme Court Scandals and Official Gratifications; Abuja Construction Deals and Shady Oil Contracts” Garner A. B, Black’s (2004), Law Dictionary, 8th Edition, West Publishing Co. p. 785. Justice A. Fataye Williams (1992.) former Chief Justice of Nigeria in a presentation at the All Nigeria Judges Conference Ilorin, Kwara State. Hon. Justice Umar F. A, (2006) “The Role of the Bar and Bench in the sustenance of Democracy” In Hon. Justice Umaru Faruk Abdullahi, CON, Browntel Books, Contemporary issues in Nigerian Law, Legal Essays in Honour of, pp. 85 & 89. Shorter Oxford English Dictionary at p. 294. The Guardian of Thursday, December 30, 1993, p. 2.