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The Independence of the Judiciary under the Third Republican Constitution of Nigeria

Published online by Cambridge University Press:  28 July 2009

M. A. Ikhariale
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Extract

One of the fundamental principles underlying the Nigerian constitutional process is that of the independence of the judiciary. The concept, in its basic form, embodies the entire philosophy of constitutional democracy especially as emphasised by the preamble to the Constitution which is for “promoting the good government and welfare of all persons … on the principles of Equality, Freedom and Justice”. In a country such as Nigeria which is presently characterised by political and economic underdevelopment, it is generally considered constitutionally desirable that a viable contrivance such as the institutional separation of the judiciary from the other arms of the government is a necessary bulwark against all forms of political and social tyranny, administrative victimisation and oppression. In other words, the freedom of the judicature from any influence, whether exerted by the legislature or the executive, or even from the judiciary itself, which is capable of leading to any form of injustice, abuse, miscarriage of justice, judicial insensitivity or other court-related vices is a condition sine qua non for the establishment of a durable political order based on the rule of law and constitutionalism.

The notion of the independence of the judiciary has its philosophical ancestry in the time-honoured theory of the separation of powers, a doctrine which incidentally features prominently in the allocation of state powers under the Nigerian constitutional scheme.

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Articles
Information
Journal of African Law , Volume 34 , Issue 2 , Autumn 1990 , pp. 145 - 158
Copyright
Copyright © School of Oriental and African Studies 1990

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References

1 See, generally, Nwabueze, B. O., The Presidential Constitution of Nigeria, 1982.Google Scholar Also, Nwabueze, , A Constitutional History of Nigeria, London, 1982, 112, 113.Google Scholar

2 See the Preamble to the Constitution of Federal Republic of Nigeria promulgated into law by virtue of the Constitution of the Federal Republic of Nigeria (Promulgation) Decree, No. 12 of 1989. This Constitution is expected to become fully operational from 1 October, 1992, when the present military junta would have relinquished political powers to a duly elected civilian democracy. See Transition to Civil Rule Decree (No. 14) of 1989.

3 See Nasir, Justice M., “The Role of the Judiciary in the Preservation of the Federal Republic of Nigeria”, (1984) 1, University of Jos Law Journal 21–44.Google Scholar

4 See Nwabueze, B. O., Constitutionalism in the Emergent States, London, 1975, chapters I & II for a detailed discussion on this issue.Google Scholar

5 See Aristotle, , Politics (Rackham's, trans) Harvard, , 1932, Vols. II, IV;Google Scholar M. P. Sharp,“The Classical American Doctrine of the Separation of Powers)”, 2 U.Chi.L.R. 385 (1935) and also ss. 4, 5 and 6 of both the 1979 and 1989 Constitutions of Nigeria.

6 See the Constitution of the Federal Republic of Nigeria (Promulgation) Decree No. 12, 1989, especially s. 2(1) which presently makes the Constitution a schedule to the Decree.

7 State immunity or sovereign immunity is a constitutional principle inherited from Britain through the colonial process which operated to shield the government from tortious liability. See Eweluka, , “Proceedings by and Against the State in Nigeria”, (1973) 11 Nigerian Bar Journal 10;Google ScholarStreet, H., Government Liability, Cambridge, 1953 and Iluyomade, B. and Eka, B., Cases and Materials on Administrative Law in Nigeria, Ile-Ife, 1980, 237–263.Google Scholar This doctrine has been specifically expunged by section 6(6) (b) thus:“;the doctrine of state immunity in respect of liability in torts no longer applies”.

8 Nwabueze, B. O., judicialism in Commonwealth Africa, London, 1977, 281–282.Google Scholar

9 See s. 6 of both the 1979 and 1989 Constitutions.

10 See Justice Oputa C.J. (Imo State)“;Understanding the Place and Role of the Judiciary in our Society” where the learned Chief Judge declared that“;the judiciary is the mighty fortress against tyrannous and oppressive laws. It is the judiciary that has to ensure that the state is subject to the law, that the government respects the rights of the individual under the law. The courts adjudicate between the citizen and the state and the citizen inter se. The courts therefore have to ensure that the administration conforms with the law; they have also to adjudicate upon the legality of the exercise of executive power … “ cited in Justice M. Nasir, op. cit. 44. Also see Bickel, A., The Least Dangerous Branch, Indianapolis, 1962.Google Scholar

11 A similar provision was also in the 1979 Constitution appearing under the same section. It is one of the pillars on which the rule of law is established in Nigeria. It has even been held that it would amount to a contempt of court where a legislature initiates a Bill which would operate to frustrate a previous ruling of the court: Esemede v. Obanor (1984) 5 N.C.L.R. 330.Google Scholar

12 See Justice M. Nasir, op. cit.

13 See s. 234 of the 1989 Constitution.

14 Nwabueze, B. O., Nigeria's Presidential Constitution: 1979–83. The Second Experiment in Constitutional Democracy, London, 1985, 443Google Scholar where he observed that“;politicians in this country are strongly inclined and prepared to use pressure of various kinds to try to influence in their favour the judge's decision—from lobbying to intimidation to outright bribery”.

15 See for example Ahie, D., Selected Essays on Nigerian Constitutional Law, 1985, Benin City, 92,Google Scholar and Schwartz, , American Constitutional Law, 1955, 130Google Scholar where he writes that“;the quality of justice depends more upon the quality of the men who administer the law than on the content of the law they administer. Unless those appointed to the Bench are competent and upright and free to judge without fear or favour, a judicial system, however sound its structure may be on paper, is bound to function poorly in practice.”

16 Nwabueze, B. O., Judicialism in Commonwealth Africa, above, 266.Google Scholar

17 For example the two civilian democracies have been headed by persons from the Hausa/Fulani majority tribes in Nigeria. Both Sir Tafawa Balewa and Shehu Shagari are northerners of the Hausa/Fulani stock. Also, the military governments have produced four Hausa/Fulani Heads of State while Ibo and the Yorubas have produced one each. There are hundreds of other minority ethnic groups whose hope of producing a head of state does not exist.

18 It was also entrenched in the 1960, 1963 and 1979 Constitutions.

19 Nwabueze, Judicialism, above.

20 Ibid.

21 Ibid.

22 The voting patterns of Nigeria are still essentially along tribal lines. Consequently, elected officials tend to distribute government largesse along the same lines.

23 Although it is often officially denied, Nigerians are fully aware that most governments are not able to rise above these forces of bias and nepotism.

24 See s. 4(8) of both 1979 and 1989 Constitutions which specifically make legislative actions subject to judicial review.

25 Under the Westminster system as practised in Britain, the legislature is supreme. Nigerian politicians who were schooled in Britain found it difficult to abandon such an arrangement for the more American approach which the Constitution's draftsmen adopted.

26 See Akintola v. Adegbenro [1963] A.C. 614;Google ScholarDoherty v. Balewa (1961) 1 All N.L.R. 604;Google ScholarObafemi Awolowo v. Minister of Internal Affairs (1962) L.L.R. 177;Google ScholarEbeziako v. Commissioner of Police (1963) 1 All N.L.R. 61, etc.Google Scholar

27 The Guardian, 1 11, 1989, 1–2.Google Scholar

28 See Nasir, M., op. cit. 41.Google Scholar

29 (1980) 8–11 S.C. 130 at 148.

30 Ibid.

31 (1981) 5 S.C. 112, 134.Google Scholar

32 Ibid.

33 A phrase used by Nwabueze, B. O. in Judicialism in Commonwealth Africa op. cit. 267Google Scholar to describe those cases bordering on political questions.

34 See Nowak, J. et al. , Constitutional Law, St. Paul, 1983, 110–111.Google Scholar Also for earlier judicial pronouncements see: Baker v. Can, 369 U. S. 186 (1962) and Colegrove v. Green 328 U.S. 549 (1946) where Justice Frankfurter said American courts “ought not to enter this ‘political thicket2019;.”

35 See Nduaguibe, M., “Impeachment and Ouster of Judicial Review in Nigeria” (1986) Cal. LJ. 14;Google Scholar M.A. Ikhariale,“;Impeachment Proceedings and the Doctrine of Political Question: the Nigerian Experience” (unpublished seminar paper), University of Benin, Faculty of Law Seminar series, 1986; Scharf, “Judicial Review and the Political Question. A Functional Analysis”, (1966) 75 Yale L.J. 517.Google Scholar In Musa v. Hamza (1982) 3 N.C.L.R. 432Google Scholar the court had refused to entertain a suit based on impeachment proceedings in accordance with s. 132 of the 1979 Constitution. This decision has been bitterly criticised. See for example, Aguda, op. cit. 53–56.

36 See Shugaba Darman v. Fed. Minister of Internal Affairs (1981) 2 N.C.L.R. 459;Google ScholarOkojie v. A.G. (Lagos State) (1981) 1 N.C.L.R. 218;Google ScholarA.G. (Jmo State) v. Ukaegbu (1981) 2 N.C.L.R. 568,Google Scholar etc. where the Nigerian courts forcefully came out in defence of the constitutionally guaranteed rights of the individual against official violations.

37 See ss. 140(1) and 178(1) of the Constitution.

38 See para. 7 of the Third Schedule to the Constitution.

39 See para. 8 of the Third Schedule to the Constitution.

40 See sub-para. (b)(iv) of para. 8 of the Third Schedule.

41 See paras. 7 and 8 of the Third Schedule.

42 See Aihe, op. cit. 96.

43 See sub-para, (e) of para. 8 of the Third Schedule.

44 S. 211(1):“;The appointment of a person to the office of Chief Justice of Nigeria shall be made by the President in his discretion subject to confirmation of such appointment by a simple majority of the Senate.”

44 See s.256(1).

46 See Part I of the Fifth Schedule to the 1979 Constitution which spells out in detail what amounts to a breach of the Code of Conduct by public officers.

47 (1984)5 N.C.L.R. 225.Google Scholar

48 Ibid.

49 1979 Constitution.

50 It provides that “where any question as to the interpretation or application of this Constitution arises in any proceedings in a High Court, and the court is of the opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the Federal Court of Appeal; and where any question is referred in pursuance to this sub-section, the court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision”.

51 (1984) 5 N.C.L.R. 227.Google Scholar

52 (1984)5 N.C.L.R. 225, 231.Google Scholar

53 (1984) 5 N.C.L.R. 225, 239.Google Scholar

54 Ibid.

55 Nwabueze, , Nigeria's Presidential Constitution 1979–1983, op. cit. 274–279.Google Scholar

56 Ibid.

57 This is because once the Code of Conduct Tribunal finds a public officer guilty of misconduct, especially in the case of judicial officers, the Governor is free at this stage to remove such an officer on the basis of the address by the legislature.

58 (1984) 5 N.C.L.R. 225 at 235–39.Google Scholar

59 The J.S.C. is one of the independent bodies established by the Constitution by virtue of section 178(l)(d).

60 Nwabueze, , Nigeria's Presidential Constitution, op. cit. 278.Google Scholar

61 Ibid.

62 Ibid.

63 (1986) 1 N.S.C.C. 730.Google Scholar

64 This brought the Second Republic to an end.

65 See s. 14 of Decree No. 1, 1984.

66 Ibid.

67 See s. 14(2) of Decree No. 1, 1984.

68 With the removal of the Buhari government by another coup d'etat in August 1985, the Supreme Military Council was changed to the Armed Forces Ruling Council (A.F.R.C.).

69 Aguda, T., The Judiciary in the Government of Nigeria, Ibaden, 1983.Google Scholar

70 There was no evidence that the Judicial Advisory Committee even had the opportunity to discuss the matter. In fact the removal was merely through a press release by the Supreme Headquarters of the Government in Lagos.

71 He was arrested and denied bail and paraded through the streets in an open police landrover jeep.

72 This was particularly so, as many citizens saw the problems of the Chief Judge as an act of political victimisation.

73 Effective 1 October, 1992.

74 Constitution of Nigeria 1989.

75 See s. 276(4) of 1989 Constitution.

76 See s. 276(4).

77 See s. 276(5).

78 Sees. 276(6).

79 See s. 276(8).

80 This has taken care of the loopholes existing under the 1979 Constitution as the Anyah case shows.

81 The removal of judicial officials is now merely ministerial.

82 See s. 276(9).

83 These consist of senior judges and the like: see s. 276(4).

84 This is fixed at 65 years. See s. 275(1) of the 1989 Constitution.

85 S. 276(l)(a) & (b) of the 1989 Constitution.

86 See s. 276(4).

87 See s. 276(2).

88 See s. 276(5).

89 See s. 276(l)(b).

90 Ibid.

91 Nwabueze, , Nigeria's Presidential Constitution 1979–1983, op. cit., chapters 12 and 17.Google Scholar

92 Roberts-Wray, K., Commonwealth and Colonial Law, London, 1966, 64.Google Scholar