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The role of the judiciary in a constitutional democracy cannot be over-emphasised. As the third arm of government, this all-important institution has helped a great deal to stabilise the polity since Nigeria returned to democracy.
No doubt, if an opinion poll were to be conducted on the performance of the three arms of government, the judiciary is likely to dwarf the other two arms – executive and legislature. While the two other arms are constantly on each oth
er’s throat in supremacy battle, the judiciary is busy doing what it knows best and waiting for which of the two would first approach it.
At all times, whether during the military regime or democratic dispensation, the judiciary stands out as a distinct arm of government. The journey of the judiciary in the country is germane vis-a-vis the political and constitutional development of the country.
For many years that the country was under military rule, nothing was heard of the judiciary other than the fact that it wanted to further subjugate the people. Not many Nigerians knew where the courts were situated or whether it existed. At this point, the judiciary was viewed as lagging far behind the two other arms. One reason for this was the allegation that it was colluding with the powers-that-be to stall justice or join the dictators to oppress the people.
But with the advent democracy, Nigerians are more conscious of their rights and the need to seek justice. Even though in the last 15 years, many analysts would rightly argue that in terms of general performance, the judiciary is the most credible organ of government and had done a lot when compared with others, most times, the forces that hamper the rule of law, democratic change and unbiased justice delivery, have attempted to sully the enviable level of equity the judiciary has come to exemplify.
Nigerians see the judiciary from two perspectives: while some have commended it for some landmark cases that have pulled back the country from the precipice, with some of its conducts, others have wondered if it is serving other ends than ensuring litigants obtain justice. This impression is not misplaced. From time to time, some office holders within the judiciary either through forceful inducement or unlawful enticement have attempted to entangle the judicial system in the abominable vice of compromising justice.
To most Nigerians, one of the worst things that have befallen the judiciary, like every other thing in the polity, is subjecting it to a lot of politics, which has not only undermined its performance and perception but threatened its integrity, to the extent that its decisions are now subject of doubts.
For many analysts, how would the judiciary perform optimally when it is being underfunded? This brings to the fore, the fact that of the three arms of government, the judiciary is the most emasculated and underfunded. This, it has been argued severally, is a threat to justice delivery and the much needed independence in the sector.
The role of the judiciary in a constitutional democracy has its roots in the doctrine of separation of powers propounded by John Locke (1632-1704) and developed by Baron de Montesquieu in his book, Espirit de lois (Chapter 10). It is anchored on the presumption that any man vested with power is apt to abuse it. This makes governmental powers to be classified into three distinct broad categories namely, executive, legislative and the judiciary.
These distinct arms are not supposed to encroach on the exclusive territory of one another. But in the last 14 years, what Nigerians have witnessed is a justice system that has been blackmailed with what is largely due to it.
While the executive and legislature enjoy financial independence, the same cannot be said of the judiciary, which has been robbed of its financial independence, leading to frequent strikes due to poor and inadequate salary, dilapidated courtrooms and allegations of corruption against judges and support staff.
This is where the recent judgment of Justice Adeniyi Ademola of the Federal High Court in Abuja becomes apt. The judge, in his effort to breathe life into the third arm of government and make it totally free from interference, recently restrained the federal government, the 36 state governments and the Federal Capital Territory Administration (FCTA) from holding on to funds budgeted for the judiciary.
Justice Ademola ordered that the funds meant for the judiciary should be released directly to the heads of courts and not to the executive arm of government. He described the disbursement of funds for the judiciary by the executive as unconstitutional and a threat to the independence of the judiciary.
Relying on the provisions of sections 83(1), 212(3) and 162(9) of the constitution, the judge held that the system whereby both the federal and state governments pay funds accruing to the judiciary from the consolidated revenue in piecemeal was a breach of the constitution.
He said the provisions were clear and straightforward and should, therefore, be complied with. “The Attorney-General of the Federation (AGF) and the states should act responsibly and promptly to avoid constitutional crisis in this country by ensuring financial autonomy for the judiciary.”
According to him, the end has come for the judiciary to be begging the executive for funds. He held that the piecemeal allocation of funds to the judiciary at the pleasure of the federal government and states was unconstitutional, un-procedural, cumbersome, null, void, and should be abated forthwith.
The judge also issued an order of perpetual injunction restraining the governors from further breach of the provisions of the constitution regarding the financial autonomy for the judiciary. He noted that both the National Assembly and the Independent National Electoral Commission (INEC) enjoy independence of funding and that the same should apply to the judiciary in accordance with the constitution.
One area a majority of Nigerians are probably not happy with the judiciary is in the fight against corruption. Rather join the fight and root it out completely, the entire institution has been enmeshed in the malaise.