Judiciary And Executive Romance

By Muiz-Banire SAN

Much ink has been spilled on the campaign for the independence of the judiciary. It is a cliché that, for the rule of law to prevail in any society, its judiciary must be independent and this further emphasizes the doctrine of separation of powers as concentration of all powers of governance in a single individual or institution will definitely lead to abuse. Human freedom will only exist at the whims of such an individual or institution. Power then corrupts and absolute power will surely corrupt absolutely.

The Nigerian situation is calling for an urgent reform as the relationship between the executive and the judiciary is almost that of master and servant; such is an abomination. Much of our campaign has been centred on how the executive has reduced the judiciary to its minion and the din of condemnation of this is almost deafening us all. Unfortunately, the judiciary too has rendered itself the proverbial cock that knows not its own value but has made itself a sacrificial offering to the fox. As I watched the swearing-in ceremonies of new governors and their deputies in the various states of the federation on the 29th day of May, 2023, in as much as I ought to be excited, my heart bled (and still bleeds) as I observed the way and manner our judicial officers mingled with the executive, populated largely by politicians and their jobbers in many states. I have, in the last two decades, been advocating ferociously on the crucial need to recognize the high pedestal our judicial officers occupy and the attendant need for such preservation of that recognition. Judges, in my strong view, are no ordinary beings as soon as they assume that position. As far as I am concerned, they are the real lieutenants of God on earth as they are the bastion through which law and order is maintained in any society. They are oracles in the Temple of Justice. By the Constitution of the Federal Republic of Nigeria, 1999 (as altered), there is the recognition of the separation of powers among the three arms of government, the judiciary being one. This enables checks and balances. With time, however, there has been a serious erosion of this to the extent of absolutely subordinating the judiciary to the other arms of government. In as much as one is not stating that there must not be cooperation among the three arms of government, such must not be unholy as to defeat the rationale behind the enthronement of the principles of separation of powers and the rule of law. Over the years, wittingly or otherwise, the judiciary seems to have been overwhelmed by the other arms, particularly the executive, and degraded into a hapless ineffectual underling. The institution, which ought to be independent in all ramifications, has suddenly downgraded to being an appendage of the executive. All efforts to sever the judiciary from the apron strings of the executive in the last few decades have proved futile. The struggle is still continuing. Strangely, however, as much as some of us believe in the compelling need to ensure the autonomy of the judiciary and most times blaming the executive for its downgrading, it is gradually unveiling that the judiciary is complicit in dragging itself down to this abysmal low level. To my mind, it appears that the absolute blame we put on the executive is not so much a deliberate act of the executive but the complicit and implicit self-submission and surrender by the judiciary to its suppression. Gone seem to be the days when the respect accorded the judiciary by the executive was so dignifying. I recall that a motorist would not even pass by the court premises hooting his horn. Seeing a judge was like seeing a demi-god. In fact, members of the executive used to avoid them.

A narrative recently surfaced online of an event in the 1970s when it was said that the Head of State, General Yakubu Gowon, was visiting Lagos State and the Military Governor then, Mobolaji Johnson, was said to have directed the Chief Judge of Lagos State to prepare himself and his colleagues to receive the Head of State. The Chief Judge was reported to have responded with a rebuke that such contemptuous instruction must never be issued again by the Military Governor, chastising him if he thought judges were that jobless. The Military Governor, recognizing the gravity of his misstep and the dignity of the court, immediately withdrew the insolent instruction with apologies, ascribing the error to his misconceived subordinates. In contemporary times, however, the judiciary is the institution dragging itself in the mud before the executive. How do you explain the presence of judges in droves at the swearing-in ceremony of a governor and his deputy when the only judge with a statutory role is the Chief Judge? The role of administering the oath by His Lordship is expected to be carried out with a stern mien of an administrator of a ritual oath. It is not an event to rub shoulders or engage in unholy handshakes in every mundane event. The manner of interaction in recent times at such events, in my view, is uncalled for. As I watched the event in one of the states from my location, I could see souvenirs branded in the political party names and logos being distributed to the attendees, including the judicial officers. God forbid bad thing! Should there be any commotion at the event and a judge is injured, or a judge is assaulted by an ex-convict/party thug or mobbed, how do you explain such? Where a judge’s picture is taken with a political party souvenir distributed in his hands, how does he explain that he is not a member, or at least, a sympathizer of that political party, which fact may be used to denigrate his impartiality where matters concerning such a political party is assigned to him? How do you rationalize a chief judge hanging around in the corridor of the Governor to sign files, or acknowledging the Governor as “Oga”? When has a Governor with limited transitional tenure become the master of the chief judge who is the head an arm of government and with a permanent tenure, so to say, subject to misconduct or retirement?! We may complain of debasement of the judiciary by the other arms of government as much as we like, it is certain that it is self-disparaging by the judiciary that is contributing much to this unfortunate scenario. The degree of interaction with the executive is a blazing signal that a citizen cannot obtain justice from the state courts where a government is sued and, when indeed some judges bend the judicial stick backwards to accommodate executive lawlessness in circumstances that make judges seem extensions or aides of the executive. This impression is already in the public domain and we cannot pretend about it. This impression needs to be urgently tamed. We must appreciate that justice is also a function of perception. Citizens lose confidence in the judicial system once they perceive that they cannot obtain justice from it. When you then hear the common man denigrating the judiciary on the social media, one should not be surprised. It is the impression that has become iron-cast in his mind that is determining what he spews out. Hearing a commentator on the social media lambasting the judiciary is highest ignominy a judicial institution can be subjected to. The recent participation of judicial officers in the swearing-in ceremonies of governors and their deputies leaves much to be desired.

The question then is, in the context of our discussion, what role(s) do judges have in the inauguration ceremonies of the executive branch? It has been stated earlier that the only judge with a constitutionally assigned responsibility in those events is the Chief Judge. He alone then ought to be there probably accompanied by his police security personnel and registrars. Other judges should use the day to face their jobs of doing justice. I know as a matter of fact that most judges are already overburdened with several rulings and judgments to write, why then must the system deprive them of the precious judicial time they could use in dealing with these core duties? Why must we expose them to such hazards of cohabiting with politicians? Why must they too yield to the urge of being seen to have done a favour to an executive officer by attending his swearing-in ceremony?

A judge’s dignity in all circumstances of that nature lies in the declining of such invitations and preserving his honour and dignity in the pride of a tiger.

I plead and beg that this must be the last time the judiciary will subject itself to unnecessary self-destruction. The judiciary must not ever again allow such degradation of this great institution. There is so much to be said on the attitude of our judges in attending social functions at the instance of the executive or the legislature. In recent times, the rate at which judicial officers attend social events in such circumstances generally is alarming. The situation is deteriorating fast to the extent of sewing uniforms for judicial officers at parties, and you start seeing judges mingling recklessly with politicians and other members of society on whose affairs they are supposed to preside and determine their rights and obligations.

Gone were those days when judges were largely invisible, just like the men of the State Security Service of those years. This is the status they need to maintain and sustain. This is the dignity they need to wear with consciousness and ever-vigilant pride. This is the deportment of dignity they need to maintain. The Heads of Courts might need to examine this proposition and act decisively or the National Judicial Council might need to come out specifically on this by way of additional ethics for judicial officers. We need to insulate them against these exposures. The judiciary is not by any means an extension of the executive or institution available to the public to infiltrate anyhow. Towards, rescuing the judiciary from the stranglehold of the executive, judicial officers must maintain their dignity and stop unduly fraternizing with the executive or lowering the standard by becoming gatecrashers at events they were not supposed to attend. A gatecrasher, by my definition, is not only a person attending an event to which he is not invited. I believe it includes someone who attends an event where he is not supposed to be found by virtue of responsibility cast on him by the law; by virtue of his special status. Like the proverbial cock, the fox thought the crown on the head of the cock was fire and was running away avoiding the danger of being burnt. It was the cock itself that now fraternally assured the fox that the crown on its head was mere flesh. The fox became emboldened and made the cock a meal to satisfy its hunger. This is the same way the judiciary that had been much respected and feared even by the military government of the past made itself the banter victim of civilian executives and is treated with contempt. Judicial officers cannot be punished for maintaining their independence and self-respect. They must remember that they enjoy security of tenure by the Constitution. Finally, the executive itself must desist from priding itself as being in control of the judiciary. It negates the rule of law which it is meant to promote. This drives away investments, either locally or internationally. Even where it appears that such is taking place, the executive must discourage same by priding itself as a government of the rule of law. There is absolutely nothing to enjoy in it and where such enjoyment exists, it is transient as it will immediately or in the nearest future come to hunt the executive operators too. This is my little admonition as my heart remains heavy on this.