In a true democratic dispensation, the third and perhaps the most pivotal arm of government is the judiciary. The role of the judiciary in any country includes interpretation of law, adjudication over disputes involving individuals, organisations and governments, and to ensure the supremacy of the rule of law. The interpretation of law is usually exercised through the courts, which have the authority to determine the facts interpret and apply the law. The judiciary is represented by the hierarchy of courts most of which are the High Courts of the various states, the Federal High Court, the Shari’a Courts, the Court of Appeal and the Apex Court the Supreme Court in Nigeria and so the Rule of Law is ensured by the judiciary. The judiciary ensures the law is supreme.

The advent of military rule in Nigeria greatly impacted the rather delicate democratic structure under which the country operated. The military intervention of 15th January, 1966 occasioned the suspension of the 1963 Constitution and heralded the promulgation of Decree No.1 of 1966 (Constitution Suspension and Amendment) which suspended both the executive and legislative arms of government, while retaining the judiciary.

By Decree No. 1 of 1966, and its subsequent amendments, the judiciary was least affected by the swift changes precipitated by the three military revolutions that have occurred in Nigeria between 15th January, 1966 and 29th July, 1975 According to Jemibewon, the judiciary which is the bedrock of democracy and custodian of fundamental freedoms were left absolutely free, impartial and independent so that not only was there a marked absence of political interference in the routine work of the judiciary and in the appointment and disciplinary control of judicial officers, there was unimpeded access to the law courts.

There is no doubt that military intervention in Nigeria did not abolish the judiciary and in fact, the judiciary would be the only surviving child of democracy.

While the military did not abolish the judiciary, however, the independence of the judiciary under military rule was seriously undermined.

Regardless of its non-proscription of the judiciary, military tribunals were set up. These military tribunals enforced draconian laws as a quick form of justice on most cases brought before them, thereby disregarding the due process of legal court proceedings. Similarly, a number of tribunals were set up to try certain offences. Some of them include tribunals set up under Decree No. 2 of 1984 State Security (Detention of Persons) which allowed indefinite detention on security grounds and empowered the Chief of Staff, Supreme Headquarters to detain any person found guilty of acts prejudicial to state security. Likewise, under Decree No. 4 of 1984, Public Officers (Protection against False Accusation), it was an offence for any media to transmit without justification any false message, rumour, report or statement calculated for ridicule the Federal or State Government or any public officer.

The independence of the judiciary was clearly subverted since the commencement of military administration through the creation of tribunals which functioned automatically – without any reference or regard to the Courts.

The establishment of Decree No. 3 of 1966 (State Security Detention of Persons), gave a clear indication that the significance of the Courts in the dispensation of justice would be eroded. Proceedings conducted under this Decree were absolutely restrictive on the independence of the judiciary as it established tribunals which handled cases which the courts should have adjudicated upon and in most cases regulated their own procedures. Section 6 of the Decree suspended the Constitution and ousted the jurisdiction of the courts to inquire into the validity of the decree.  The decree also gave the military government at the time the power to detain persons for such periods as it deemed fit. First major assault on personal liberties.

There is no gainsaying, therefore, that subsequent Decrees after this Decree No. 3 of 1966 (State Security Detention of Persons) witnesses the constant erosion of the independence of the judiciary in the dispensation of justice.

In military administrations, rule of law does not thrive. Under the Rule of Law, a system of strong, independent courts should have the power and authority, resources and the prestige to hold government officials, even top leaders, accountable to the nation’s laws and regulations. This is however not to be the case under military rule. The set up of the military and their training have no democratic element and so the rule of law is incompatible with military administration. The military can therefore not administer the rule of law and cannot ensure the independence of the judiciary.

The military always believe that their emergence in administration of the country was brought about by a state of necessity. Necessity knows no law. They can hardly represent the rule of law and allow the independence of the judiciary.

Judiciary in the 3rd Republic

Nigeria reverted to constitutional democracy in 1999 within the advent of a politically elected democratic regime. Section 6 of the 1999 Constitution vests judicial powers solely in the Courts.

The provision of Section 6 of the Constitution heralded the hierarchical court structure which Nigeria still operates today. It created the Supreme Court of Nigeria, the Court of Appeal, the Federal High Court, the High Court of the Federal Capital Territory, Abuja, the High Court of different states, the Sharia Court of Appeal of the Federal Capital Territory, Abuja, the Sharia Court of Appeal of the States, the Customary Court of Appeal of the Federal Capital Territory, Abuja, the Customary Court of Appeal of the States, and such other courts as may be authorized by law to be made by either the National Assembly or the State Houses of Assembly

Upon subsequent alterations, the National Industrial Court was established.

These courts, including the National Industrial Court, constitute the hierarchy of superior courts in Nigeria. Other courts, otherwise known as inferior courts, are creations of the law of the different states

To be continued…