By B. U Okorie

Introduction

1. This article is going to discuss judicial independence from the point of view of civil and military judiciary. In so doing, judicial independence which simply refers to freedom from political influence on the part of civil judiciary and freedom from command influence on the part of military judiciary will be assessed through the lens of an international benchmark. Critics of Nigerian military justice system apparently believe that it is unacceptably dependent on the military commanders irrespective of the fact that it wields the functional independence necessary for its purpose. It is against this background that a conclusion would be drawn whether judicial independence in Nigeria generally is a reality or just a mirage.

Benchmark for Judicial Independence.

2. Judicial independence simply means immunity from any kind of interference by the Executive, Legislature or other private entities in Judicial affairs of a country. In other words, judges and other judicial officers or persons who perform roles similar to theirs in military justice should not be subjected to improper influence from either the other branches of government or their superior commanders. Judicial independence enables the judiciary to assert itself and offer the checks and balances necessary to prevent other branches of government or superior commanders from abuse of power. The benchmark for ascertaining whether a tribunal can be considered independent has been affirmed in the case of Martin v The United Kingdomwhere the European Court of Human Rights held that:

“In order to establish whether a tribunal can be considered independent, regard must be had, inter alia, to the manner of appointment of its members and their term of office, to the existence of guarantees against outside pressures and to the question of whether the body presents an appearance of independence.”

The factors affecting the independence of both civil and military Judiciary as shown above are similar and would therefore be considered together.

Factors Affecting Judicial Independence

3. The factors that can be distilled from the case of Martin V The United Kingdom (supra)include:
4. Appointment of Judges or Courts-martial members
5. Welfare and Financial Autonomy
6. Job Security
7. Respect for the rule of law.

These factors would be discussed seriatim.

Appointment of Judges or Court-martial members

4. In Nigeria, Judges are appointed by the Executive after recommendation by the National Judicial Council and subject to confirmation by the Legislature. It is an open secret that there is behind-the-scene horse trading and deal-makings particularly in the appointment of principal officers of the Judiciary before their appointment. These behind-the-scene acts ultimately affect the independence of the Judiciary.

In the military, the Courts-martial is an adhoc tribunal convened by commanders authorized under section 131 of the Armed Forces Act, (AFA). The convening authority appoints the President, the Judge Advocate and other members as guided under sections 133 and 134 of AFA. The convening officer must not risk appointing court-martial members to satisfy his whims and caprices as an accused to be tried by a court-martial has the right under section 137 of AFA to reject any appointee on reasonable grounds before swearing-in-of members and inauguration of the court-martial. Most of the AFA provisions empowering the convening officer to appoint members of a court-martial are mandatory as the convening authority is not allowed any discretion with regard to whom he appoints as a member of a court-martial. See, for instance, Section 134 which prohibits the convening officer from appointing just any officer or himself as a member of a court-martial. Section 134 (1) (2) provide as follows:

“(1) the officer who convenes a court-martial shall not be the President or a member of that court-martial.

(2) an officer who, at any time between the date on which the accused was charged with the offence and the date of the trial, has been the commanding officer of the accused and any other officer who has investigated the charge against the accused, or who under service law has held or has acted as one of the persons holding an inquiry into matters relating to the subject matter of the charge against the accused, shall not sit as a member of a court-martial or act as judge advocate at the court-martial.”

Although, the AFA guidelines appears very standard and capable of curbing nepotism, tribalism and some political considerations in selecting courts-martial members, the virus of political interference or command influence in Judicial affairs could still attack judicial independence under the guise of other factors.

Welfare and Financial Autonomy

5. Among the three Arms of government, it is apparent that the Judiciary seems to be the weakest because it lacks the power of gun or that of the purse. Going by the Constitution of the Federal Republic of Nigeria, CFRN, 1999 (as amended), the Legislature controls the flow of money while the Executive controls the Armed Forces of Nigeria and the law enforcement agencies. The judiciary practically depends on the political arms of government for its sustenance and to enforce its judgments.

Even while President Muhammadu Buhari has signed the implementation of Financial Autonomy Order for State Judiciary and Legislature some State governors are yet to muster the political will to implement the Order.

Similarly, the funding and welfare concerns of every courts-martial lies on the shoulder of the convening officer. Transportation of court-martial members to the venue, accommodation, provision of all necessaries for their sustenance and those of prosecution witnesses fall under the responsibilities of the convening officer whose duty it is also to enforce the court-martial judgments. The degree of independence the judiciary, be it civil or military enjoys therefore practically depends on the will and aspirations of the political arms of the government including the military command.

Job security

6. The CFRN 1999 (as amended) provisions for the tenure and mode of termination of judicial officer’s tenure only become effective when heeded and implemented by the political office holders. They are useless where the people in power exercise same arbitrarily. For instance, the suspension and the compulsory retirement of the former Chief Justice of Nigeria, Hon. Justice Walter Samuel Nkanu Onnoghen never followed the constitutional provisions. Prior to the constitutional date for his retirement and without an address supported by two thirds majority of the Senate, he was suspended from his office, before he eventually voluntarily retired. Furthermore, the recent incident where the three Justices of Court of Appeal who quashed the 15-count Terrorism charge against Mazi Nnamdi Kanu were all sent on immediate and compulsory transfer 4 days after the judgment is another threat to job security of judicial officers. In the military Judiciary, similar occurrences are not unusual. The result is that judges or court-martial members are forced to compromise and curry favour from the higher authority for fear of job insecurity. This threat to Judicial independence can be curbed if selection and removal of Judges is vested in a Judicial commission for civil judiciary while a Judge Advocate General who would also double as the Director of Defence Headquarter’s Legal Services should prefer charges against an accused, appoint members of the court-martial and fund the court-martial trial in all material respects.

Respect for the Rule of Law

7. Respect for the rule of law as a factor affecting Judicial independence cuts across all other factors. However this factor needs to be discussed in relation to compliance with court orders and judgments by the political arms of government. The political branches of government hardly comply with court orders against them even when the same branches promptly enforce court orders in their favour. The Executive arm of government is very notorious for executive lawlessness. The appointment and removal processes of judicial officers may be fair and constitutional coupled with the requisite financial autonomy, the judiciary would still be frustrated and weak if the political arms of government fail to exhibit the necessary patriotism and will power to obey court orders and totally be subject to the rule of law.

The fact that the virus of threats to judicial independence has infested both civil and military judiciary gives enough cause for concern. The question is why do the vocal critics of military Justice system single it out for condemnation as lacking in judicial independence even when the system is serving its primary purpose of sustaining discipline and administering justice according to military law.

Conclusion.

8. It is opined that even with the constitutional and other statutory protection and safe guards for judicial independence in Nigeria, there is little the judiciary can do to the political arms of government or military command that refuses to be rule-of-law compliant.  Therefore, it is imperative that the political arms of government and military command cultivate the necessary political will and respect for the rule-of-law in their attitude towards civil and military judiciary. Until then, one can safely conclude that judicial independence in Nigeria is more of an ideal than the reality.

Recommendations

9. It is therefore recommended that: a. Selection and removal of Judges should be vested in a Judicial Commission for Civil Judiciary and the financial autonomy Order recently signed by the President be strictly enforced by the Federal Government.

b. A Judge Advocate General be appointed to serve as Director of Defence Headquarter’s Legal Services who is  vested with the power to prefer charges, appoint court-martial members and fund courts-martial trial through the Legal Services Headquarters in the Nigerian Army, Nigerian Navy and  Nigerian Air Force.