RELEVANCE OF SEPARATION OF POWERS AND ITS APPLICATION TO NIGERIA (3)

Under what circumstances can a Judge give judgment against the President, members of the National Assembly, the Police, the Army without fear or favour, bearing in mind the conditions under which they serve?

It is my view that the conditions of service including salaries, provision of vehicle, maintenance and fuel, personal assistant, hardship allowance, domestic staff, entertainment, utilities, outfit, leave allowance and newspapers, must be attractive and satisfactory.

Today, there are judges and magistrates living in rented apartments, there are also others or those without personal/ official car as a result of which they are compelled to use public transport.

Imagine the case of a chief magistrate who wanted to board a public transport, a passenger in the same vehicle told him "sorry my Lord, I have paid your transport fare". However, it turned out that the generous passenger was in fact standing trial before him. The embarrassment could have been avoided if the Judge had his personal car.

Imagine another case where a judge was living in a rented house owned by an absentee Landlord. A case came before him where his absentee landlord was charged with a criminal matter. In the course of proceeding, he found out that the person charged was infact his Landlord. He could have been saved the embarrassment if he was living in a government quarters.

Again salary wise, the total emolument of Judges of Supreme Court in Nigeria is N10,899,284.00 while that of his counterpart in England is £257,121 which is equivalent to N128,560,500 i.e less than 10%.

In the past, Judges were invited to the Bench based on their competence and integrity of having been successful practising lawyers. In 1976, I was invited to the Bench by the well-respected Chief Judge of Western Region, Hon. Justice Oyemade, but I politely turned it down because I thought I needed more time at the Bar to practice to make more money before taking an appointment on the Bench.

Unfortunately, the likes of Hon. Justice Taslim Olawale Elias, the then Chief Justice of Nigeria, Hon. Justice Adewale Thomson and Hon. Justice Emmanuel Ayoola were removed by the military through Radio announcements without a hearing. That was a classic example of misuse of power and disrespect for the doctrine of separation of powers.

Consequently, I refused to accept any appointment to the Bench. Indeed, no brilliant, comfortable and successful legal practitioner would want to go to the Bench where the Executive can summarily dismiss him and this has had the effect of many brilliant lawyers not going to the Bench.

DSS MIDNIGHT ARREST OF JUDGES

In the early hours of Saturday, 8th October, 2016, Nigerians awoke to reports of the invasion of the houses of several judicial officers by officers of the State Security Service or Directorate of State Services (DSS). In the course of the said invasions, the homes of the judges were searched and some of them arrested. It was also reported that the search led to the discovery of huge sums of money in local and foreign currency.

This development naturally attracted immense attention from the public. While some praised the development, viewing it as a step in the right direction by the current administration which had always made known its intention to tackle corruption, others condemned the action on the grounds that not only did the DSS lack the statutory powers to act as it did, but also that the raids amounted to a denigration of the judiciary as an institution. While the DSS stuck to its narrative that it was compelled to act owing to the failure of the National Judicial Council (NJC), the body saddled with the duty of enforcing discipline in the judiciary, to investigate reported cases of corruption within the judiciary, the NJC itself insisted that it was not subject to the supervision of any authority or individual. Not unsurprisingly, Lawyers were themselves sharply divided with some arguing in favour of the conduct of the DSS while others condemned it.

On my part, I issued a statement in which I expressed concern at the allegations made against the Judicial Officers while at the same, I expressed serious reservations about the conduct of the DSS particularly the effect of its actions on the independence of the Judiciary. See Afe Babalola on DSS MIDNIGHT ARREST OF JUDGES: LEGAL ISSUES AND RECOMMENDATIONS published in the Vanguard Newspaper of November 9, 2016.

Whichever way one looks at it, it is clear that this type of action has inhibiting effect on judges.

The role of Lawyers in maintaining the Independence of the Judiciary

Before I conclude, I wish to address the role of lawyers in maintaining the independence of the judiciary.

The independence of the judiciary is critical to the maintenance of rule of law. Lawyers should see themselves as the defenders of rule of law.

It is with pride that I recall that when I was invited by late Gen. Sanni Abacha to take over the post of A.G of the Federation in 1993, I declined because I saw the take-over of the government by the military as an assault on the rule of law and an aberration to our democracy.

It is my opinion that the legal advisers to the government at different levels and political parties are supposed to demonstrate professional candour and ethical rectitude expected of the office. I recall the good old days when late Kehinde Sofola, SAN of blessed memory tendered his resignation as Attorney General of the Federation because the government refused to accept his opinion and legal advice. His conduct was not only commendable but it demonstrated, a high degree of professional uprightness and ethical rectitude. I commend to you the warning of Francis Bacon[1] to wit:  "If we do not maintain justice, justice will not maintain us".

Tai Solarin, the Chairman of Public Complaints Commission in 1970s resigned because he was unable to produce his vehicle license after he was stopped by the police on routine check. He felt that we should live by example.

The South Korea Example

The resignation of South Korean Prime Minister Chung Hong-won amid criticism of the government’s handling of the sinking of a passenger ferry has provided a contrasting example for Nigerians about the attitude of government officials to responsibilities they are saddled with.

In turning in his resignation, Mr. Hong-Won had indicated that the “cries of the families of those missing still keep me up at night”.

The Seoul ferry with 476 people on board – most of them students and teachers – sank on 16 April. 187 passengers of the ferry have been confirmed dead, while many others are missing, presumed drowned.

Prime Minister Hong-Won, along with the Coast Guard chief, was in charge of the rescue operation. “The right thing for me to do is to take responsibility and resign as a person who is in charge of the cabinet. On behalf of the government, I apologise for many problems, from the prevention of the accident to the early handling of the disaster,” Chung said in a brief televised statement. “There have been so many varieties of irregularities that have continued in every corner of our society and practices that have gone wrong. I hope these deep-rooted evils get corrected this time and this kind of accident never happens again,” he added.

Also, the country’s president, Park Geun-Hye, apologised to her countrymen over the disaster.

The Willy Brandt Example

In 1974, Willy Brandt, a former Chancellor of the defunct Federal Republic of Germany, resigned after it was discovered that one of his personal assistants, Günter Guillaume, was a spy for the East German intelligence services.

Democracy cannot survive let alone thrive in any country without lawyers particularly those in government and those serving political parties upholding the sanctity of rule of law. A proactive bar that is alive to its inherent responsibilities as a watchdog is a panacea to executive lawlessness. Unfortunately, we seemed to have a paucity of that kind of lawyers these days. Rather, we now seem to have transactional lawyers whose main motive and sole motivation is materialism. This is in line with the thought of Caroline Kennnedy "The bedrock of our democracy is the rule of law and that means we have an independent judiciary, judges who can make decision independent of the political winds that are blowing".

                                                                                                                         To be continued

AARE AFE BABALOLA SAN, CON

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