ABSTRACT

        The Nigeria system of government is divided into three arms of government which is the Executive, Legislative and Judicial arm of government. The Judiciary is the third arm of government and its primary duty is to administer Justice.

        This research will focus on the procedure for the appointment of Judicial Officers in Nigeria and therefore intended to critically examine the Judicial arm of government and Laws regulating Judicial officers in Nigeria.

        Chapter one which is the introductory chapter will consider the three arms of government i.e. separation of powers and the Nature of Judicial Power.

        Chapter two will bother on the qualification and procedure for the appointment and removal of judicial officers and the challenges they face in the course of duty.

        Chapter three will dwell on the independence of the Judiciary.

        Chapter four which is the concluding part summarizes this research and includes some recommendation to remedy the situation substantially if not totally.

CHAPTER ONE

INTRODUCTION

1.0.    Background to the Study

The theme of this work is apt in the light of the current national discourse, bothering on the judiciary and justice delivery. One of such discourse is the unresolved appointment of the chief Judge of Rivers State [1]caused by the row between the Rivers State Government and the National Judicial Council. To every human being, all over the world; justice is the oxygen of a good life. Socio-political and economic existence depend on proper delivery of this invaluable commodity.1

The evolvement of the judiciary can be traced to the principle of separation of powers. John Locke and Baron de Montesquieu dominated the early formulation of the doctrine of separation of powers[2]. In fashioning this political formulation, the renowned jurist, Locke having observed the prevailing political conditions in England in the 17th century, concluded that arbitrariness in governance was a product of concentration of all governmental powers in one authority. The diffusion of authority among different centers of decision making is the “thesis to totalitarism or absolution”.[3] The doctrine clearly provides for the three arms of government; the executive, the legislature and the judiciary and their independence.

The Nigerian Judiciary has in recent times come up against a bulwark of onslaught against its integrity and an erosion of its public image ranging from accusations of financial material compromise, manipulations from the political elitist class and weak agencies. Against the backdrop of recent public perceptions on the judiciary, the following are the key areas upon which this essay shall be built: separation of powers, the general process appoints of the Nigerian bench; tenure of judges and independence of the judiciary as well as the nature of judicial power.

1.1 Separation of Powers

The doctrine of separation of powers, developed in the 17th century in an effort to ensure division of state authority into legislative, executive and judicial function and the performance of such functions by separate branches of government. Among the components of separation of powers are the trias politica doctrine and the establishment of checks and balances on the actions of the various branches of government. Motesquieu argues that the reason for the separation of powers is that there can be political freedom in a country where one and the same person or body of persons makes the laws, implements them, and acts as arbiter when they are contravened.[4]In his words he posits: [5]

Political liberty is to be found only when there is no abuse of power. Experience shows that every man invested with power will abuse it by carrying as far as it will go. To prevent this abuse, it is necessary from the nature of things that one power should be a check on another… When the legislature, Executive and Judicial power are united in the same person or body…, there can be no liberty…Again there is no liberty if the judicial power is not separated from the legislative and executive… There would be an end of everything if the same person or body, whether of the nobles or of the people, were to exercise all three powers.

        Separation of powers means that different persons or different bodies of persons should exercise the powers of the three arms of government i.e., the legislature, executive and judicial arms. Our own form of separation of powers is fashioned after the American system. The idea of this system is the provision of effective checks and balances in the government structure itself. Under the principles of separation of powers enshrined in our constitution, the three organs of government are independent, equal and co-ordinate. No organ is controlled by the other, although each acts as a check on the other. By virtue of sections 4, 5 and 6, the powers of the federal Republic of Nigeriaare shared among the Legislature, Executive and Judiciary respectively[6].

        Separation of powers as enshrined in our constitution has been applied by the courts in the celebrated case of Lakanmi & Anor. V A.G Western State[7] the Supreme Court observed:

We must here revert again to the separation of powers, which the learned Attorney-General himself did not dispute, is still the structure of our system of government. In this absence of anything to the contrary it has to be admitted that the structure of our Constitution is based on the separation of powers –the Legislature, the Executive and the judiciary. Our Constitution clearly follows the model of the American Constitution. In the distribution of powers, the courts are vested with the exclusive rights to determine justiciable controversies between citizens and the state.

The Court of Appeal formulated some fundamental principles to explain why separation of powers is desirable, in these words.

The doctrine of separation of powers as enshrined in the constitution ensures the independence of each of the arms of government, that is, the legislature, the executive and the judiciary. Each acts separately but within the confines of the Constitution”[8]

Since the government of Nigeria, pursuant to the 1999 Constitution, which is founded on the principle of separation of powers, the executive cannot usurp the legislative powers of the legislature, nor can the judiciary do so. In Ikhariale v Okoh[9] the need for the court not to engage in legislative function was stated. It was held that the court at what ever level in the judicial hierarchy is not authorized, and is ill-equipped to embark on the execution of a duty constitutionally and exclusively reserved for the legislature. It cannot do so in a pretended interpretation of words which are clear and unambiguous in their natural, grammatical and literal meaning, with reference to the context in which law makers use them.

Accordingly neither the executive nor the legislature is expected to usurp the judicial functions/powers. The court of appeal per Agho J.C.A states this position thus:

The constitution is clear as to who should perform judicial acts. And since it is the exclusive function of the judiciary to exercise judicial function, any member of the executive who interferes with those functions must be prepared to face the consequence of such interloping conduct by way of an action by a person aggrieved.[10]

The judiciary should not also usurp the powers of the executive arm. In Ohaji v Unamka[11] it was held that where there is a statutory provision for making an order or a declaration and making same is reposed in a named office, whether minister or a commissioner, or indeed whether the President of the Republic or Governor of a State, such function cannot be usurped by the court. The furthest a court can go is to declare as to the validity or otherwise of an order or declaration of a public officer, but the court has not got the jurisdiction to take over the functions of such public officer by making its own order or declaration as against the statutory provisions.

        However a court will strike down a law or act of the legislative or executive respectively, where the legislative or the executive in the exercise of their legislative or executive duties, breaches any constitutional provision in respect of a particular matter they are dealing with[12]. This is called judicial intervention which is used to prevent breach of the constitution. Yakubu J.C.A posits:

It is because of the non-compliance with the provision of section 100(5) of the 1999 constitution by the appellants as contended vide the 1st-22ndrespondent’s notice, in enacting the Law no. 6 of 2008, that the said law can be faulted.[13]

There is an extent to which separation of powers is desirable. Although powers may be separated, the interest or order and progress demands that such powers be at the same time co-ordinate. It is only essential that one organ of government does not have a controlling influence over another. As it has been said, the theory of predominance is the controlling factor. As long as one organ of government does not and cannot dominate the proceedings of another organ of government, there is separation of powers.[14]

        The constitution and indeed the other Republican Constitutions of 1963 and 1979 of the Federal Republic of Nigeria adopts in principle the concept of separation of governmental powers and the exercise of these powers by three organs, namely; the Legislature, the executive and the Judicature.[15] As earlier stated chapter 1, part II, of the constitution deals with this separation of powers.

I shall now consider the workings of the doctrine in our legal system.

1.1.1 Checks and Balances

The role played by the system of checks and balances is a very important one in a democratic state as it guarantees that no single branch of government can become too powerful and end up usurping the functions or powers of the other branches. Moreover, no single branch of government can function in complete independence between the three branches. In other words, an “absolute” theory of separation of powers in which one branch functions in complete isolation is not viable.[16] The most interesting aspect of this system is that the powers of one branch can be challenged by another branch and this is what the system of checks and balances is all about, i.e., one branch serves as a watch dog or safeguard against any form of irregularity by the other branch (es).[17]

        The legislature checks over the judicial arm as for example, it has power to ratify the appointment of some members of the judiciary. It also checks on the executive in various ways. For instance, it may override the executive vetoes on bills passed and may remove members of the executive arm through impeachment.[18]

        The executive exercise checks on the legislature in a number of ways. It also has the ability to check the judiciary, the President or Governor as the head of the executive, as the case may be, is vested with powers to appoint judges in the courts.[19]

        The courts may exercise checks and balances on the executive when it gives an order or judgment as to the constitutionality of executive actions. It also checks over the legislature with its power to determine the constitutionality of legislature acts.[20]

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