INDEPENDENCE OF THE JUDICIARY. PROF YEMI OSINBAJO, SAN. INTRODUCTION . This presentation is intended to be as practical and experiential as possible. We center the presentation on three basic questions: WHAT? WHY? HOW?. JUDICIAL INDEPENDENCE: notion vs practice from who and what?.
PROF YEMI OSINBAJO, SAN
This presentation is intended to be as practical and experiential as possible. We center the presentation on three basic questions:
Judges and the court systems must be able to discharge their adjudicatory duties without interference from the executive or legislative.
Environmental influence- culture, religion, ethnic considerations, public opinion, family, ethnic and social ties play a more significant role day to day
[The litigant is concerned whether a judge will favor his Kimman-his church member as whether will favor his government]
Balanced with judicial accountability
“The quality of justice depends more on the quality of the men who administer the law than on the context of the law the administer. Unless those appointed to the bench are competent and upright and free to judge without fear or favor, a judicial system, however sounds its structure may be on paper, is bound to perform poorly in practice”- Schwartz
But who recommends to the FJSC?
Who recommends to JSC?
Critical to ensure independence
For CJN, PCA and JSC, JCA who retire at 65 after 15 years as judicial officers-entitled to
HIGH COURTS OR OTHER JUDICIARY OFFICERS
Judge who retires at 60 after 15 years as a judicial officer is entitled:
These are effective and thoughtful safeguards for the independence of the judiciary
Remuneration, salaries and allowance of judges recommended by law but not exceeding amount determined by Revenue, Mobilization, Allocation, and Fiscal Commission- shall be paid from consolidated revenue fund of the Federation.
What is wrong? The practice
Yes all judges salaries and allowances are paid from federation account but State Governments pay substantial additional amounts at the discretion of the government. Houses, holiday allowances, cars, medical expenses are paid by the state.
There is a trend that raises serious questions about how Courts perceive their independence and dignity
In earlier decisions of Nigerians such as UNONGO V. AKU (1983) NSCC PAGE 563 AT PAGE 568 PARA 5 25, the Supreme Court, by a full panel, had authoritatively demonstrated the proper judicial attitude to exercise of legislative powers which interfere with judicial function. In Unongo’s case, the Supreme Court was faced with the question of constitutionality of Section 140(2) of the Federal Electoral Act, 1982 which prescribes the time within which the Election Tribunal can hear and determine the Petitions filed before it. The Section 140(2), has same tenor as Section 285(6) of CFRN 1999 (as amended)The Supreme Court per Bello JSC at page 577 extensively held as follows:
“As the courts respect the right of the legislature to control its internal affairs so the Constitution requires the legislature to reciprocate in relation to the jurisdiction of the courts. …It seems to me, if in the purported exercise of powers under these sections, the National Assembly makes any law which hampers, interferes with or fetters the jurisdiction of a court of law such law shall be void for being inconsistent with the provisions of the second limb of section 4(8). “
Continuing, the Supreme Court held that:
“One of the powers which has always been recognised as inherent in courts has been the right to control their internal proceedings and to so conduct the same that the right of all suitors before them may be safeguarded in such manner that all parties are given ample opportunity to prosecute or defend the cases for or against them without let or hinderance. The old adage that delay of justice is denial of justice has the same force as the maxim that hasty or hurried justice is also a denial of justice. ...”
There was a twist of approach. In what sadly represents the current state of the law, the same Supreme Court ANPP V. Goni & Ors (Unreported Appeals No: SC/1/2012 and SC/2/2012) literally construed Section 285 (6) CFRN 1999 (as amended) and concluded without more that the 180 days for hearing an election petition begins from the date of filing the petition.And that it would uphold the provision even where it violated judicial autonomy a fundamental pillar of the Constitution.
The decision in ANPP v. Goni and many others that followed question the continuing relevance, independence of Nigerian Court in the judicial review of electoral matters, and importantly the sanctity of the doctrine of separate of powers which forms the basic structure of the Constitution.
Can a Court punish contempt when its jurisdiction or the validity of its order is challenged?
Independence of the Judiciary is a cornerstone of a fair, just and available judicial system.
We have shown that the