In a democratic system of government, some of the characteristics of ‘democracy’ are: ‘independence of the judiciary’, ‘the principle of rule of law’ and ‘the respect for human rights’. Based on these three principles or concepts, human rights activists have been empowered to champion the cause of safeguarding the human rights of the citizens. Nevertheless, the judiciary, being the third arm of government are expected to be independent but alas! What has been happening since the existence or practice of democracy since 1960 (as Nigeria celebrates her 59th independence anniversary on 1st of October, 2019) in Nigeria has not really been the true independence of the judiciary rather, several issues have occurred and are still occurring and are likely to continue to occur if necessary steps are not taken to forestall all these instances. This paper is aimed at encouraging rights or human rights activists to always be concerned about issues affecting the judiciary and the courts’ system in Nigeria, as the independence of the judiciary, in my humble view, gives room for the effective operation of a rights activist.
The word ‘Democracy’ according to President Abraham Lincoln of the United States of America, is ‘a government of the people, by the people and for the people’. In other words, ‘Democracy’ is: (i) a government made up of the generality or representatives of the people; (ii) a government formed and installed by the people; and (iii) a government that exists for the welfare of the people’. See Ese Malemi, The Nigerian Constitutional Law, Princeton Publication Co., Ikeje, Lagos, Nigeria, First Edition, 2006, page: 30. There is no doubt that in Nigeria, as of the moment, the types of democracy practiced is ‘the Indirect/Representative Democracy,’ which is a system of democracy where all persons of voting age are expected to vote to form the government by electing persons into government who will represent and act on their behalf, especially in the executive and legislative arms of government, which elected persons are expected to properly constitute all the other organs and agencies of government, and generally manage the affairs of government for the welfare of the people’. See Ese Malemi (op cit) on page 31. As has been said above, the government is a joint function of (i) the Executive; (ii) Legislature; (iii) and the Judiciary.
Judicial independence presupposes in my humble view, the status of the judiciary to have the right to perform all judicial functions and to utilize all judicial powers as conferred on it by the Constitution without fear or favour or interference by any person or authority or other arms of government i.e. the executive and the legislature. Furthermore, judicial independence is also a claim for separation of powers. In other words, judicial independence is synonymous with judicial separation from other arms of government. Section 6(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution-has established courts to perform the functions of judiciary even though, in my humble view, the whole of judges sitting on the bench in the legal parlance, inclusive of their institutions such as the National Judicial Council, etc. constitute the judiciary and not just a court of law established by law. Furthermore, section 6(6) of the Constitution has separated the powers of the judiciary (apart from administrative functions) from the other arms of government thus ‘(6) The judicial powers vested in accordance with the foregoing provisions of this section— (a) shall extend notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law ; (b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person ; (c) shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution ; and (d) shall not as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January 1966 for determining any issue or question as to the competence of any authority or person to make any such law.’.
Also, in section 46(1), (2) and (3) of the Constitution, the Court has been empowered to hear applications on the enforcement of fundamental rights of the citizens thus ‘46.—(1) Any person who alleges that any of the provisions of this Chapter has been being or is likely to be contravened in any State concerning him may apply to a High Court for redress. (2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter. (3) The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this section’.
Also see the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009. Therefore, it is my humble view that those guaranteed rights will better be achieved where the judiciary’s independence to decide disputes and or cases independent of any political affiliations or influence, fear or favour is guaranteed, else, anything short of trust of the public in the judiciary will have a direct impact on the national progress of Nigeria. Therefore, all rights activists must guide and protect the independence of the judiciary! And a situation where individuals do things in their ways will definitely encourage chaos and disunity very soon as everyone will have to take the laws into his hand and be the judge of his cause, leading to ‘jungle justice’ that is ‘fake justice’ or ‘injustice to an innocent person or victim’ or ‘justice misplaced’ ‘or justice without substantial evidence’, so to say. Therefore, all and sundry must wake up to ensure that the Nigerian Judiciary remains independent and committed to its constitutional tasks of dispensing justice with confidence and without fear or favour.
Furthermore, it is my reasoning that where all those guaranteed rights are allegedly denied, the hope left for the common man or common citizen and of course, every citizen or victim (apart from seeking administrative settlement) (including a right activist), is to approach the court of law for either judicial interpretation or declaration of title to those or any of those rights or to seek compensation with apology. So, where the court will not do manifest justice in his case, what then will be the reasoning objectively of a layman or a bystander in the society as to whether the said justice was even attempted to be done in the first place not to talk of having been done in the actual sense of it?!
Furthermore, all and sundry (including a right activist) must join hands together to fight against bribery and corruption and abuse of judicial powers as these situations defeat the status of the judiciary. ‘He who pays the piper dictates the tune’ they say in African adage. More so, a corrupt judge is in my humble view, ‘a killer judge’! The judiciary itself, in other words, must always separate itself from any person or authority likely to influence its judgment or decision and must always rise to the championing of its cause of independence to be able to dispense justice to the core! Also, the government especially in this case, the executive must not use its powers of possessing the State’s ammunition to harass or intimidate or distract the attention of the judiciary even where a court’s order or judgment is against it or any of its agencies. Court’s orders must be obeyed at all times by all persons and the other two arms of government, to lay a good example for the members of the public. Also, the judiciary should not be used as a political football that is played the way the player or the ruling party in power desires. It must be separated from politics, as the judiciary is even there to save politics where the need arises. Every citizen of Nigeria having realised the need and importance of the judiciary towards actualizing his guaranteed human rights must rise and champion the cause of the independence of the judiciary.
Finally, I believe that a situation where the judiciary’s independence is ensured will definitely give room for claim of those guaranteed human rights and a situation where the said independence is allowed to be taken away, will make the claim of those guaranteed human rights impossible and such situation will only lead to chaos and so must be avoided in the interest of the public and that of justice. More so, in my humble submission, an activist has an account to render to God Almighty should the independence of the judiciary is raised to dust and be allowed to remain as such!
Email: hameed_ajibola@yahoo.com
