The Judiciary

Definition of the Judiciary

The Judiciary is the third organ of government that is responsible for interpretation and application of the laws when they are broken or violated. It is made up of Judges and the courts of law.

The Nigerian Court System

The Nigerian court system is headed by the Supreme Court which is the final court. The next is the Court of Appeal. Besides, we have the High Court and the Sharia as well as Magistrate Court. The Customary Court handles customary cases.

The Nigerian Court System

The Judiciary is also made up of the following: Chief Justice of the Federation, the Supreme and Appeal Court Judges, Federal High Court Judges, State High Court Judges, the Magistrates, the Alkalis and the Quadri.

In the modern states, the liberties and rights of an individual depend on the fairness of the courts in providing protection against other individuals from the powerful and the oppressive members of the public and government. The Judiciary is regarded as the last hope of the common man. If there is an infringement upon the rights of any citizen, instead of taking law into his hands, he is to follow the path of legality by seeking redress in the law courts.

Characteristics of the Judiciary

1. Political Neutrality: The Judiciary is politically neutral. Judges do not engage in partisan politics. It rather acts as an arbiter in cases of political disagreements.
2. Impartiality:The Judiciary is impartial to the extent that it is not a creation of the executive or legislature and so cannot be influenced by them.
3. Permanence:The Judiciary is a permanent institution inherited by successive governments. Its term does not end at the end of any political regime/tenure.
4. Independence:Judiciary is made independent of the executive and the legislature, in order to avoid undue interferences and delays in the judicial process and to promote separation of powers.
5. Stable tenure of office of Judges:in some countries, Judges hold office until they retire, if they are not found guilty of any corrupt practices or ill health, stable tenure increases skills by taking the advantage of experience.
6. Judicial Immunity: Judges enjoy judicial immunity in the performance of their duties.
7. Due process:The Judiciary operates according to laid down procedure/precedence.
8. Professionalism:The Judiciary is made up of Judges who are legal experts. This enhances the integrity and efficiency of jurists.
9. Code of Conduct: The Judiciary has prescribed code of conduct in order to protect their professional integrity.

EVALUATION

1. What are the characteristics of the judiciary in a state?
2. Outline the Nigerian court system.

Methods of Appointment or Selection of Judges, Status, Conditions and Privileges

Appointment of Judges

In Nigeria, Judges are appointed as follows:

1. The appointment of a person to the office of the Chief Justice of Nigeria is made by the President from among qualified lawyers, subject to confirmation by the Senate.
2. The appointment of a person to the office of justice of the Supreme Court, President of the Court of Appeal, Chief Judges and judges of the federal High Courts, is made by the president on the advice of the Federal Judicial Service Commission – subject to confirmation by the Senate.
3. The Chief Judge of a state is appointed by the governor of the state, subject to confirmation by the House of Assembly of the state.
4. Judges of a state are appointed by the state, acting on the recommendation of the State Judicial Service Commission.
5. The Grand Kadi and Kadis of the Sharia court of appeal of a state are appointed by the governor of the state, acting on the recommendation of the state Judicial Service Commission.
6. The state judicial commission appoints magistrates.
7. The president of a Customary Court of Appeal is appointed by the governor of a state on the advice of the Judicial Service Commission, subject to the confirmation by the House of Assembly of the state.
8. The Judge of a customary court of Appeal in a state is appointed by the governor of the state, acting on the recommendation of the state Judicial Service Commission.

EVALUATION

1. List the three methods of selection of Judges.
2. Write a short note on the Judiciary.

Functions of the Judiciary

1. Interpretation of laws: This is the major function of the judiciary as it interprets the laws made by the legislature and that of the constitution.
2. Dispute Adjudications: It settles disputes between aggrieved parties, individuals, corporate bodies government and others.
3. Punishment of law breakers: The judiciary makes sure that people obey the law and any offender is punished according to the dictates of the law.
4. Guardian of the constitution: The judiciary guards and protects the constitution of the land from violation by anybody or government agencies.
5. Determination of election petition: It can hear and determine election petitions in order to ascertain true winners of elections.
6. Protection of citizens’ rights and liberties: The court protects the rights of the citizens from being infringed upon and this is why the judiciary is regarded as the last hope of the common man. It can order an accused person to come to the court.
7. It gives advice to the president: The judiciary acts in the capacity of adviser to the president on legal matters such as the application of prerogative of mercy or power to give state pardon to criminals and political detainees.
8. Law making function: The judiciary can make laws through judicial pronouncements and precedence. It can offer useful suggestions to the executive and legislative arms of government on matters bothering on passing and signing of bills into law.
9. Administrative functions such as granting divorce, performing marriages, administering oaths and swearing affidavits, management of estates on behalf of the minors ( children below eighteen years)
10. Prevention of wrongful acts: Through the use of writ(s) that is a written order, the court may act to prevent violations of the law and compel adherence to it. Failure to obey an injunction constitutes contempt of court and may be punished by fine or imprisonment e.g. a judiciary has the power to compel the executive to perform its duties. This is called the right of mandamus.
11. Judicial review: There is the process by which court determine whether the legislature or the executive arm of government has exceeded its powers. Where executive acts or legislative statutes are not in congruent with the provision of the constitution, the court is empowered to declare such unconstitutional, null and void.

EVALUATION

1. Highlight seven functions of the judiciary.

Independence of the Judiciary

Meaning of Judicial Independence

Independence of the judiciary means the judiciary that is insulated from the control of the other two organs of government. It refers to the impartiality of Judges, absence of external control and lack of bias in the administration of justice by the courts. The judiciary therefore works without looking up to the other organs of government for directives. For proper and impartial dispensation of justice in the country, there is every need for the judiciary to be independent.

Judges must be made independent of the executives in the discharge of their duties. In order to ensure that civil liberty and rights of individuals are protected against the encroachment of tyrannical executives. Judges must be able to act independently without fear or favour. A judge must be impartial and non-partisan. He must also possess a high degree of personal integrity and honesty. Judges must be selected by a method which emphasize these qualities, and which also lays less emphasis on political considerations. They must be guaranteed tenure of office and their remunerations must be such that they cannot succumb to undue political or monetary influence.

Importance of the Independence of Judiciary or Reasons for the Independence of Judiciary

1. It enables the judiciary to carry out its duties without fear or favour.
2. It prevents it from being controlled by other organs of government.
3. It allows giving proper and unbiased interpretations of the laws and the constitution and standing firmly to declare any act that is in conflict with the constitution unconstitutional whether committed by the legislature or the executives.
4. Independence of judiciary ensures and protects the rights and civil liberties of the citizens.
5. The crucial function of the judiciary of adjudicating in disputes between the executives and the legislature etc will be carried out efficiently without fear or favour.
6. Independence of the judiciary will give the organ more impetus (motivation) to find out with certainty the true winners when election petitions are brought to it to determine.
7. The judiciary will be in a vantage position to punish law breakers and those who refuse to obey the law of the land if it is independent.
8. An independent judiciary will guard and protect the constitution better than when it is controlled by the executive or the legislature.

How to Maintain Judicial Independence

(Factors that Ensure and Aid the Independence of the Judiciary/Ways of Guaranteeing the Independence of the Judiciary)

1. Appointments: to ensure independence of the judiciary is maintained, its officials should not be appointed by the executive arm of government but should be done by independent and impartial body such as the judicial service commission. The appointment should be based on merits and not political or other considerations.
2. Immunity: judges should be immune, as it obtains in almost every country, from prosecution for anything they say in the performance of their duties.
3. Separation of powers: if the Judiciary is separated from other arms of government, the independence will be ensured.
4. Remuneration: The judges should be well paid and the salaries of Judges and Magistrates should be paid from the consolidated fund and should not be subject to executive or legislative manipulations.
5. Promotion:Judges and Magistrates should not be promoted by the executive but by a neutral body e.g. judicial service commission.
6. Security of judges:There should be adequate security for judges in and outside of court premises so that judges will not be molested by aggrieved parties and they will be able to carry out their work not under duress, fear or intimidation.
7. Nonpartisanship: Judges should not belong to any political party. Attachment to a political party by a judge would only expose him to undue pressure from his political allies.
8. Funding:To ensure the independence of the Judiciary, it should not be funded by the executive.
9. Long Tenure of Office:If the position of Judges and Magistrates are secured for a longer time, it will help to ensure independence of the judiciary.

EVALUATION

1. How can the independence of the judiciary be guaranteed in safeguarding the rights of a citizens.

Factors that Limit the Independence of the Judiciary

For the judiciary to pass impartial judgment, it must be independent. In practice however, the judiciary has never been completely independent. There are some factors that limit the independence of the judiciary.

1. Appointment of judges: The mode of appointment may limit the independence of the judiciary. In many countries such as Nigeria and Britain, judges are appointed by the president or prime minister and not by a neutral body. These executives use their position to appoint persons that are loyal to them and such persons carry out their dictates.
2. Inadequate funds:The judicial independence in some countries is strongly defeated due to inadequate funds provided by the executive. Hence, the judiciary is forced to depend on the executive for survival.
3. Poor remuneration: Judges are often poorly remunerated in terms of salaries and allowances which are not promptly paid by the executive thereby giving room for the judges to be influenced by mere financial inducement by external bodies.
4. Corruption in the judicial system: The wide spread of corruption and bribery cases in the judicial system prevents the judges from having freedom and confidence to act independently.
5. Political interference: Some of the actions and decisions of the judiciary are often influenced by other arms of government thereby preventing the judiciary from acting freely. For instance, the chief executive has power to issue pardon for offences against the state. He has thus set aside judicial decisions.
6. Establishment of special tribunals: In modern times, the practice of establishing special or administrative tribunals as quasi-judicial bodies(e.g. in Nigeria armed robbery tribunal, foreign exchange tribunal, inland revenue courts, etc) to handle certain cases, erodes the independence of the judiciary. The special tribunals do not grant the rights of appeal against their judgments.
7. Enactment of retroactive laws: limiting the independence of the judiciary is the enactment of retroactive laws i.e. laws deemed to have taken effect before their dates of enactment.
8. Contempt of court: When court decisions are not taken seriously by the other arms of government or individuals, independence of the judiciary is jeopardized.

Honesty And Integrity in the Judicial Organ of Government

Introduction

Certain personal qualities are indispensable for officials of the judiciary in the course of carrying out their functions. These qualities are honesty and integrity. The judges of law courts especially should possess the attributes of honesty and integrity.

Meaning of Honesty

Honesty is the quality of being truthful, sincere and straightforward in one’s dealings with others. Its attributes are respect, truthfulness, integrity, reliability, honest communication, commitment and courage (boldness).

Meaning of Integrity

Integrity is the virtue of being honest and firm in one’s moral principles. It has to do with the quality of having transparent sense of moral standards on human relationships. It’s attributes are probity, honesty, commitment, truthfulness, fair-play and non-compromise of principles.

EVALUATION

1. List the attributes of honesty and integrity.