Funmilayo Odude, Partner, Commercial and Energy Law Practice (CANDELP)

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What’s wrong with all eyes on the judiciary 11 Sep 2023

Last month, just after the Presidential Election Petition Tribunal (PEPT) had reserved judgment in the election petitions challenging the outcome of the 2023 presidential election, billboards sprang up in different cities, including the Federal Capital Territory (FCT), with messages such as “All eyes on the Judiciary”, and “All eyes on the election petition judges.” In reacting to the messages, the Advertising Regulatory Council of Nigeria (ARCON) ordered the immediate removal of the billboards, stating that “the advertisement is considered a blackmail against the Nigerian judiciary, the presidential election petition tribunal and particularly the justices of the tribunal who are expected to discharge their judicial functions without fear or favour over a matter that is currently jus pendis.”

The judiciary suffers from the same low trust levels as other arms of government in Nigeria. It is usually subjected to suspicion and mistrust, especially where there is a perception of a non-favourable outcome of judicial proceedings or process. Many people, from politicians to businessmen and even members of the executive arm of government, have levelled accusations of impropriety and misconduct on judicial officers. The most prevalent accusations are in the arena of public opinion. Generally, in Nigeria, there is the penchant to extol the judiciary when the outcome of a judicial process aligns with vocal public opinion. When it doesn’t, the same arm of government is denigrated.

For example, the August billboards were quick to resuscitate in many minds and commentaries the judgment of the Supreme Court in Hope Uzodinma’s case. In the case, the apex court declared Uzodinma, a candidate that polled the fourth-highest votes in the 2019 Imo State gubernatorial election, the winner of the election. Some blogs have alleged that the United States of America placed visa bans on some of the justices as a result of the said judgment. However, the same Supreme Court was recently celebrated for upholding the election of Ademola Adeleke as Governor of Osun State.

Most of the time, there is a complete lack of knowledge or understanding of the issues placed before the court, the position of the law, or the reasoning of the courts. Thus, while judges are meant to decide based on the applicable principles of the law and the facts, evidence, and prayers placed before them, the outcome of the process is usually measured on public sentiments. The poor reportage of legal proceedings by the media hardly helps the situation.

Nevertheless, even if there was a measure of pressure and/or intimidation that can be ascribed to the billboards, they are, however, pictorial representation of the mood of the country. But there is a danger in the notion of lack of fair play if the judgment does not conform to the vocal public opinion or even the expectation of a majority of the citizens.

There are undoubtedly misgivings about the outcome of the 2023 presidential election. The European Union (EU) Election Monitoring Group stated that the election was fraught with electoral irregularities and that it failed to meet the minimum standard of credibility. The aggrieved aspirants and their supporters are, therefore, looking to the courts for electoral justice – with the supporters of the leading opposition candidates hoping to “retrieve their mandate.”

However, the judges are to decide cases before them. In doing so, they are not supposed to be constrained by public sentiments or reports by election monitoring groups. The facts and evidence placed before the judges, and the position of the law, are what should constitute the deciding factor. To the extent that there is a notion of an “expected outcome” from the judicial process, and based on some insinuations that a different outcome is as a result of compromise, the billboards constitute a measure of pressure and are, therefore, inappropriate.

One of the basic principles of the doctrine of the independence of the judiciary is the independent determination of cases by judges. According to the United Nations Universal Instrument on Basic Principles on the Independence of the Judiciary, which was adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1985, and endorsed by the UN General Assembly, “The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”

Whatever the outcome of the election petitions across the country, the judiciary, being the arm of government not subject to periodic change of members, as with the legislature and the executive, must continue to fight for its independence and regain confidence of the citizens. Although its members are not subjected to campaigns and are not elected at the polls, this doesn’t diminish its duty and role to deliver its constitutional mandate to the citizens.

The billboards may have been brought down, but they were a testament to the need to strengthen judicial independence and impartiality. A strong and independent judiciary is a prerequisite to a strong democracy and the adherence to the rule of law by a society. It is intrinsically linked to the growth of an economy, as it ensures the fair and general application of commercial laws and regulations, and promotes the growth and maintenance of a healthy, competitive business environment. A country’s judicial system is a factor to be considered in attracting investment.

The Universal Charter of the Judge, approved by the International Association of Judges (IAJ), a professional, non-political, international organisation comprising of national associations of judges, states: “The independence of the judge is indispensable to impartial justice under the law. It is indivisible. All institutions and authorities, whether national or international, must respect, protect, and defend that independence.”

The structure created by the Nigerian constitution promotes judicial independence and impartiality; it upholds the doctrine of separation of powers. The country has, however, lacked the political will to implement some of the most salient provisions that would ensure the independence of the judiciary. First is the financial autonomy of the judiciary, as the third arm of government, the others being the executive and the legislature. The judiciary needs adequate resources to discharge its functions appropriately. Inadequate resources not only affect the efficiency of the courts but also render members of the judiciary vulnerable to corruption. The total emoluments of judges can be better when compared with those of the members of the National Assembly and senior members of the executive arm of government.

International conventions recognise the importance of adequate resources for the proper and efficient administration of the judicial process and for promoting the independence of the judiciary. The UN Basic Principles establish that, “It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.” The European Charter on the statute for judges requires that, “The State has the duty of ensuring that judges have the means necessary to accomplish their tasks properly, and in particular to deal with cases within a reasonable period.”

The Latimer House Guidelines for the Commonwealth on Parliamentary Supremacy and Judicial Independence, adopted on 19 June 1998, which were approved by judges from Commonwealth countries, provides as follows on funding for the Judiciary: “Sufficient and sustainable funding should be provided to enable the judiciary to perform its functions to the highest standards. Such funds, once voted for the judiciary by the legislature, should be protected from alienation or misuse. The allocation or withholding of funding should not be used as a means of exercising improper control over the judiciary.” It further states that “the essential maintenance of the Rule of Law and the protection of human rights nevertheless require that the needs of the judiciary and the court system be accorded a high level of priority in the allocation of resources.”

Ensuring financial autonomy for the judiciary requires not only the provision of adequate resources and funds but also autonomy to decide how to allocate its resources. No institution must interfere with the way the judiciary disposes of the resources allocated to it. The judiciary must participate in the elaboration of its budget at both state and federal levels.

Former President Muhammadu Buhari had tried to create a structure for the states through the Executive Order 10. The executive order sought to provide a framework to enforce the provisions of the 4th alteration to the Constitution (Section 121(3)) by directing that appropriated funds to the state legislature and state judiciary in the budget of the state would be a charge upon the consolidated revenue fund of the state as a first line charge. It would, therefore, be paid directly by the Accountant-General of the Federation to the accounts of the judiciary and legislature in that state. It is important for the National Assembly to enact a law that gives effect to and creates a practical guide to the implementation of the provisions of the constitution guaranteeing financial autonomy for judges at both the federal and state levels.

One of the most effective ways of controlling any institution is by restricting its finances. Until the power over the allocation and administration of the resources due to the judiciary is made to rest securely in the judiciary, without any form of influence or restrictions from other arms of government except as provided under the law for a system of checks and balances, the possibility of influencing the outcomes of particularly sensitive cases by other arms of government would remain.

Implementing a proper structure for the implementation of financial autonomy for the judiciary will also promote executive respect for the doctrine of separation of powers as it relates to the judiciary. When we allocate adequate resources to the judiciary, and the autonomy required to determine how it is utilised, we can then expect to see a more efficient system of administration of justice, attract the best minds to the Bench and develop our legal jurisprudence. But we cannot attempt to end the accusations and mudslinging against judges, or insinuations of the kind made by the all-eyes-on-the-judiciary billboards, without financially empowering the judiciary as a means of effecting its independence.

Funmilayo Odude is a Partner at Commercial and Energy Law Practice (CANDELP).