Afe Babalola

Last week in continuation of my examination of the factors affecting Judicial Independence, I highlighted the specific questions or issues which promote independence of individual judges on the one hand and independence of the judiciary itself as a body on the other hand. For the benefit of those who missed the article of last week it is pertinent to state again that these issues are:
Components of protection for individual judicial officers include:
(1)    Security of Tenure
(2)    Security of Remuneration
(3)    Immunity from Suits
(4)    Adequate Remuneration
(5)    Adequate Pension Rights
Components of protection for the judicial system itself include:
(1)    Fair and Transparent process of appointment of Judges 
(2)    Adequate Funding and ability to control funds
(3)    Respect and Support for the Judiciary

Having already discussed Security of Tenure I intend to discuss Security of Remuneration and adequacy of remuneration together as they are related.

SECURITY OF REMUNERATION
A Judge should not have to entertain doubts or fears as to whether or not his salary and other emoluments would be paid as and when due. Where this is so, an invitation would invariably have been extended to corruption. The salaries of judges should be paid promptly. However security of remuneration is not confined to prompt payments of salaries alone. It is not enough to pay peanuts regularly. Judges should be very highly paid.

In the past Judges in Nigeria were indeed well paid. They drove comfortable cars and lived in Government Reservation Areas. It was not common to find a judge, serving or retired utilising public transportation. Owing to their adequate welfare package Judges could afford the best of medical care. This was important as the work of judges daily stretched long into the night after the courts would have finished sitting. They would have to read through endless pages of arguments which they had laboriously taken down in long hand. Without such comfortable welfare packages the life span of the average judge would be bound, as recent events have since revealed, to be short indeed.

However, times have changed. Judges have been affected not only by the economic downturn in the country alone but the seeming reluctance of the executive to strengthen and position the Judiciary for the discharge of its constitutional duties. The living and official quarters of judges in several jurisdictions are appalling. It is common to find Judges sitting in old decrepit buildings strewn with cob webs and collapsed ceilings.  After a long day of sitting the Judge then retires to another old, colonial era building which serves as his residence. Instances abound of Judges failing to sit on account of flooded official quarters after a short period of heavy rainfall. Judges inclusive of Magistrates have been known to board public means of transportation owing to non-availability of official transportation. In one disturbing instance, a passenger offered to pay the fare of a Judge who had boarded one of such vehicles. To the horror of the Judge, he discovered that the gesture had come from a suspect who was standing trial before him for armed robbery. Yet it is in circumstances such as these that Judges are expected to consider and pronounce on intricate principles of law which pronouncements are often capable of significant constitutional reverberations beyond the confines of the particular case in which they were handed down.

Many reasons have been advanced for the refusal of the political class to adequately fund the judiciary. Some posit that the notion of a free and independent judiciary is one that will obviously affect the politician who is not in any manner interested in the discharge of the duties of his office or the sanctity of the oath of the said office. Whatever the reasons are, what is clear is that society is ultimately the loser whenever the remuneration of judges are not fixed or are inadequate. For one, a judge who has not been paid his salary or whose salary is inadequate to pick up his bills will become an easy prey for the individuals who see bribery of the judge as an easy avenue out of their legal predicaments.

DIRECT FUNDING OF JUDICIARY BY SOME STATE GOVERNMENTS
It is perhaps in realisation of this fact that some state governments have decided to place priority on the welfare of their judges. In some states, it is now common to find judges riding state of the art cars and living in posh and upscale neighbourhoods. One of such states that readily come to mind is Lagos which in 2000 after appointment of new judges distributed cars and allocated choice properties to all judges of the state judiciary. The state also commendably built new court houses across the major judicial divisions in the state.

However, as commendable as this development on a superficial level would appear to be, it is one that continually worries well-discerning minds. This is so for the simple reason that direct funding of the judiciary by state governors it is itself capable of further eroding independence of the judiciary much as neglect of the judiciary by the government. It can hardly be disputed that a judiciary which has been neglected by previous administrations would do all in its power to protect an administration which contrary to the norm had decided to give priority to its welfare. Such a judiciary may eventually see itself as a part of the executive whose authority is being threatened by a particular suit before it and therefore may seek to protect and preserve the establishment which obviously has been generous and magnanimous to it. As strange as it sounds, this is a notion that is very much realistic.

A few years back I was instructed by a client whose large expanse of land had been acquired by one of the State Governments ostensibly for public purposes.

However it was discovered that the Government had allocated a part of the land to a company in which a senior functionary of the Government had interest. It was also in the process of allocating the remainder of the land to other such companies. These companies intended to use the land for their own business interests and not for any public purpose. This in law was enough to invalidate the acquisition of the land from my client. The Judge granted an order of interlocutory injunction restraining the Government from further allocating or dissipating the land until the determination of the suit. An order of this nature normally lasts till the case is indeed decided. Surprisingly the same Judge weeks later granted an order staying his previous order of injunction. In essence the Judge allowed the Government to continue selling the land even though the suit challenging the validity of the acquisition of the land was still pending. To my mind it was simply a case in which the Judge was not willing to do anything to jeopardise the interest of the State Government. 

The Federal High Court which is constitutionally empowered to adjudicate over matters dealing with the revenue of the Federal Government or suits involving the Federal Government or any of its numerous agencies is daily inundated with suits which upon careful consideration ought to have been filed at the State High Court. Some of these suits have State Governments or their agencies as defendants yet litigants owing to the fear that they might not get justice from the State High Court would do all to introduce or plead facts including the joinder of nominal or otherwise unnecessary agencies of the Federal Government in a bid to confer jurisdiction on the State High Court.

Thus the situation in which the Judiciary has to go cap in hand to the executive for its expenses is not one that will strengthen the independence of the judiciary. I recall a particular incident in which the official vehicle of a female Chief Judge of one of the states in the South West had broken down. She had to beg the Governor to effect repairs to the vehicle. However the Governor rather than accede to this request asked the Judge to draw up a list of vehicular parts that needed to be replaced. He kept on making promises which were never fulfilled until the Judge resigned months later.  

To be continued...

AARE AFE BABALOLA, OFR, CON, SAN, LL.D, D.Litt