Reserva Biológica de Utuana Bosque de Hanne

The reality, of course, that cannot be disputed is that the judiciary in its

determination to support the democratic project is constrained in several ways:

undue delays in the justice delivery system, absence of infrastructure, disobedience of court orders by the Executive, needless pressures from several quarters,

corruption, perpetual adjournment of cases, poor working environment, pitiable emoluments, and congestion of cases in courts of law due to administrative

bottlenecks. The law is often treated as synonymous with justice. It is for this reason that we often refer to „courts of justice‟ as a synonym of „courts of law‟ even though in practice the former may often fall far short of the ideals of the former. There have been allegations of bribery and corruption against judges and biases against

individual in cases involving the citizens. Under the Buhari Regime Justice Okoro- Idogu once confessed that he surrendered to pressure mounted on him by

government to convict Fela Anikulapo Kuti under Decree No. 7 of 1984. On the strength of this disclosure, the late Afro-beat King was immediately released from prison and the judge was retired (Newswatch, May 26, 1986).

There is no doubt that in certain instances the judiciary may not have acquitted itself beyond all reasonable doubt. But more often than not the judiciary has been the sacrificial lamb on the altar of societal imperfections and contradictions. When politicians rig elections it is the judiciary that is called upon in place of the electorate or voters to decide who actually won the election. When the national treasury is looted it is the judges that are called upon to determine the culprits either at regular courts or special tribunals. Whatever the verdict the judiciaries is in the middle of a cross-fire and in no-win situations since the looser or culprit charge the judges with allegations of bias, partisanship or miscarriage of justice. This is why it has been argued that there is no justification for serving judges to sit in the

determination of election petitions or judicial inquiries into political activities since such involvements may drag their names to political mud. But if judges must sit on such matters then retired judges with unimpeachable record should be used.

It is important to stress that constitutional guarantees of judicial independence will come to naught if efforts are not made to insulate the judiciary from politically sensitive matters. Yet constitutional provisions designed to guarantee judicial independence can also be re-examined with a view to ensuring that they are free from political manipulations. If the Judicial Service Commission is peopled by political appointees it futile to expect the body to be detached in the exercise of its advisory role to the executive, or expect the beneficiaries of such padded

appointments not to return favours to those made their appointment possible. Even in the United States where the patronage or spoils system has become accepted it is difficult not to see partisan colour in the appointment of judges, especially given that quasi-political role that the Supreme Court and the federal judiciary perform as guardians and interpreters of the country‟s constitution.

There is no doubt that the encroachments by the executive and the legislature in the realm of the judiciary as a result of constitutional provisions on the appointments of judges takes something away from the independence of the judiciary. This is

notwithstanding what may in the statute books to guarantee judicial independence.

Indeed in countries such as the United States and Britain, the independence of the judiciary has depended more on the force of tradition than on express constitutional guarantees. Where there is a tradition of judges, standing up for justice, their

independence can only be minimally threatened and the cause of justice met. But that is not the case with developing countries like Nigeria where the politicians are yet to imbibe the culture of non-interference and the judges a culture of impartiality irrespective of the desires of their appointer.

The Constitutional basis for the removal of a judge on grounds of „inability to discharge the functions of his office‟ or „misconduct‟ is nebulous and can be abused by a willing political head. With this type of provision the fear of possible removal from office always hang over judges like a Sword of Damocles. More over the provision under the Nigerian law that judicial officers upon their retirements cannot appear as a legal practitioner before any court or tribunal will make most judges faced with this impossible choice to be too willing to hold on to their appointments, at whatever costs, rather than retire to starvation. The hierarchical structure of the judiciary in the country also makes judges to look to the politicians for promotion or elevation to the upper echelon of the judicial ladder. Such judges who know that the prospect of advancements depend on their rating by politicians will not want to incur the wrath of politicians.

Self-Assessment Exercise 3.3

Discuss dictatorship as a form of government

In the final analysis, the ultimate guarantee of judicial independence is the caliber of men and women appointed to the bench. Therefore, only men of unimpeachable character, high probity and unassailable intellect can dignify their calling to the bench and guarantee their independence from executive meddlesomeness or legislative emasculation. As a renowned American Constitutional Lawyer profoundly puts it thus:

The quality of justice depends more on 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.

Self-Assessment Exercise 3.4

Enumerate the conditions that can guarantee the independence of the judiciary.

4.0 SUMMARY

In this Unit, we have examined the judiciary as a vital institution and organ of government. We have in addition explained its role as a vital component in the organization of government as well as the functions it performs. We also noted that for it to perform its functions fairly and impartially the judiciary must retain its independence from the other organs of government, particularly the executive. We however recognised that inspite of the merit and attractions of the idea of

independence of the judiciary it is impossible to fully have it in absolute terms.

5.0 CONCLUSION

The significance of the role of the judiciary cannot be overemphasized in the

organization of government. The courts of law which have become the instruments through which the judiciary discharges its functions have been variously described as the temple of justice, or the last hope of the common man. But for the judiciary in any country to acquit itself creditably the political environment within which it operates must be readily supportive, by providing the needed administrative and legal framework, as well as the complement of adequate resources, without which the judiciary will suffer deficit in both performance and credibility.

6.0 TUTOR-MARKED ASSIGNMENTS (TMAs)