The Independence of the Judiciary in a Democratic Dispensation (Part 5)

The Independence of the Judiciary in a Democratic Dispensation (Part 5)


In our last discourse, we considered the notion of political independence in the judicial process, and the imperatives of insulating the Judiciary from such pressures. We also took a look at the importance of economic/fiscal and intellectual independence for Judges, as well as how to sanitise the process of their appointment. This week, we shall continue and conclude the process of appointment and then move on to the training and re-training of Judges, and the role and importance of the rule of law in a democracy. 


By virtue of Sections 250(3), 256(3) and 271(3) Constitution of the Federal Republic of Nigeria 1999, a person shall not be qualified to hold office of Chief Judge or a Judge of the Federal High Court, Chief Judge or a Judge of the High Court of the Federal Capital Territory and a Judge of a High Court of a State, respectively:

“Unless he is qualified to practice as legal practitioner in Nigeria, and has been so qualified for a period of not less than ten years”.

We are not really concerned here, about the procedure for appointment of High Court judges. What has threatened the system with collapse is the bare assumption in these constitutional provisions that tends to imply that once a person has spent ten years on earth since he/she was called to the Bar, the person automatically has all the intellectual capability to be appointed a Judge.

More than anything else, judicial incompetence (encompassing law intellectually, law productively etc) has contributed to rob the Judiciary of the necessary intellectual freedom it needs to assert and guard its independence. According to Schewart:

“The quality of justice….depends more upon the quality of the men who administer the law then on the content of the law they administer.” 41 

In his keynote address at the recent Bar Conference at Enugu, Chief Afe Babalola, SAN, observed on the constitutional qualification for appointment as a Judge as follows:

“This allows great latitude for the appointment of ‘any Lawyer’ who has met the ten years requirement, regardless of where he is prior to his appointment. This explains why a new  wig from the Nigerian Law School who, immediately after his call (and probably Youth Service) went  straight to work in a company, multinationals and the life without any experience whatsoever in practice could be and are being appointed as High Court Judge”.

At the swearing in of the new Senior Advocates of Nigeria on Monday, September 8, 2003, the Honourable Attorney-General of the Federation and Minister of Justice, Chief Akin Olujinmi, SAN hinted that more stringent criteria for appointment of Judges would be introduced. According to the then Chief Law Officer of the Federation:

“We will propose that only those who can furnish evidence of contentious cases they handled  in the Supreme Court, Court of Appeal and the High Court within, say, three years preceding their application should be considered for appointment. By so doing, it will be possible to select only seasoned practitioners to occupy positions on the Bench”.

The plan is absolutely welcome! It has been suggested that the list of proposed Judges should be made public, to enable members of the public who know the prospective Judges to object to a proposal with ‘proven documents’. Our only concern here, is the yard stick for determining the competence of lower court Magistrates and Area Courts who do not practice law. We suggest that a certain number of highly contentious cases they handled with analytical judgements delivered therein, be used as a yardstick.

Training and Re-Training

Also critical to the issue of intellectual independence of the Judiciary, is the assurance of training and continued training. This because the National Judicial Institute (NJI) takes the issue of continued judicial training even more seriously, the high toll on the nation as a result of the blunders of ignorant Judges can only be imagined. It manifests in the erosion of public confidence in the Judiciary. As Professor Oluyede rightly observed.

“A gullible public is too ready to jump to the wrong conclusion that a bad judgement delivered by an innocuous Judge who has done little or no research, must have been influenced by an overbearing Executive” .

in his recently published “Agenda for Justice Sector Reform”, the Honourable Attorney-General of the Federation hinted at plans to make constitutional provisions for an independent body to be known as, Judicial Performance Commission to monitor the work and activities of the entire  judicial system. This plan is in the right direction, because it has the potential to improve the depth of intellectual independence of Judiciary and ultimately, to enhance the realisation of an independent and impartial Judiciary.

The Rule of Law

The rule of law means ‘the absolute supremacy or predominance of regular law, as opposed to the influence of arbitrary power. It excludes the existence of arbitrariness, or prerogative or even discretionary authority on the part of government. According to A.V. Dicey, renowned cerebral Professor of English Law, we must be ruled by law and law alone. He went further to categorise the doctrine into three aspects. The first aspect, according to him, means.

“The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, or prerogative or even of wide discretionary authority on the part of government..”

The second of aspect of Dicey’s theory may be summarised as meaning “equality before the law”, and that law is no respecter of person, rank or status.  He wrote thus:

“Equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; the rule of law in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals”.

Finally, the third meaning of the rule of law, according to Dicey, is expressed as follows:

“a formula for expressing the fact that with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source, but the consequence of the rights of individuals as defined and enforced by the courts”.

The rule of law thus, envisages the existence of the constitution or some sort of law which shall be bestowed with absolute supremacy overall persons, whether governor or governed.  The Supreme Court of Nigeria, in simple prosaic terms, expressed this doctrine in the case of Governor of Lagos State v Ojukwu when it held that:

“The law is no respecter of persons, principalities, governments or powers and the courts stand between the citizens and the government alert to see that the state or government is bound by law and respects the law”.

The Role of the Rule of Law in a Democratic Setting

In our contemporary world, the term “Rule of law” is now a convenient short hand for the full complement of our civil and political rights.  That term now denotes the minimum condition of existence in a free, open, humane, civilised and democratic society.  It encompasses the following:

a. The supremacy of the law including judicial decisions over all persons and authority in a State

b. The supremacy of the Constitution 

c. Independence of the Judiciary 

d. The right to personal liberty

e. Observance of democratic values and practices including’ the freedom of speech, thought, association and the press and regular, free and fair elections as the basis for assuming power in government.

Democracy, which is the indispensable Siamese twin of the rule, is based on two key principles:

i. Popular control over collective decision making and decision makers; and 

ii. An equal right to share in the control, that is, political equality.  

However, those key principles require in the modern State, a distinctive set of social components for their realisation.  They are:

a. Free and fair elections, to provide the platform for popular control over government; 

b. Open and accountable government, guaranteeing continuous public accountability;

c. Sanctity of the rule of law, upheld by independent courts;

d. Civil and political rights and freedoms, enabling citizens to associate freely with others, to express divergent or unpopular views and to find their own solutions to collective problems;

e. A democratic society, or societal conditions for democracy:

• Agreement on nationhood within the current national or state boundaries.

• Independent and accountable institutions of civil society.

• A democratic culture.

From the above, it is indubitable that democracy without rule of law is tantamount to wholesale arbitrariness. This much was admirably captured by Professor Nwabueze when he subjected the concepts of constitutional democracy and arbitrary rule to considerable thoughts. According to him:

“Constitutional government recognises the necessity for government, but insists upon a limitation being placed upon its powers.  It connotes in essence therefore, a limitation on government; it is the antithesis of arbitrary rule, its opposite is despotic government, the government of will instead of law”.

In Nwabueze’s view, a constitutional, popular government connotes not just a government under constitution, but rather government under a constitution which has force of a supreme, overriding law, and which imposes limitations upon it. He went further to conclude that, “in practical terms, constitutionalism, democracy and the rule of law are practised in a country where the government is genuinely accountable to an entity or organ distinct from itself, where elections are freely held on a wide franchise at frequent intervals, where political groups are free to organise in opposition to the government in office, and where there are effective legal guarantees of fundamental civil liberties enforced by an independent Judiciary”. 


 “The judicial wheel is rounded with equality, oiled with honour and functions smoothly with honesty – principally when both members of the Bench and Bar shoulder their responsibilities seriously”. (Munindra Misra)

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