MATTERS OF THE BAR 8 - THE BAR AND THE BENCH- By S. O. K. Shillings Esq. (The Pen Master)


The Bar has a duty to protect the Bench and temple. One of the cardinal principles of the Rule of Law is the independence of the judiciary. Independence underscores the essence of the doctrine of separation of powers but is antithetical to the concept of checks and balances. By 'independence', therefore is meant the condition and environment for the discharge of judicial responsibility without interference and undue influence from the other arms of government especially the executive and from private and partisan interests.

To achieve the laudable concept, the judex must be protected from temptations. The condition of service must be good enough both remuneration and working environment and His Lordships should be protected from needs from the executive arms. The process of engagement must be transparent and meritorious.

It is expensive to maintain a judge or justice, but it is worth it. However, the disparity in the remuneration of judges and magistrates is too wide. In many instances, the magistrate is worse than His Honour's contemporary in the civil service.

The National Judicial Council regulates the appointment, service and discipline of judges and justices. It also regulates the disbursement of its funds. Interestingly, it is regarded as an executive institution.

The CJN is recommended for appointment by the NJC. So, in the absence of adverse security report or misdeeds, the most senior Justice of the Supreme Court is appointed. Virtually same process operates in the states but with a window for consideration of suitability after a routine screening. This is to prevent a situation of constitutional detente where one with adverse security report or political leaning is foisted on the state.

There is a lacuna in the matter of the CJN and the NJC. The NJC is headed by the CJN. Where His Lordship heeds to human frailties, could the NJC rightly discipline an effective CJN? Onnoghen CJN was only issued query by NJC after the President suspended His Lordship. The principle of nemo judex in causa sua is absent.

While provision is made for life pension for judges and they are not expected to go back to practice, there is an assumption of good health. By the current stand of the law, an unhealthy judge will be prematurely retired. No life gratuity and no going back to practice. Many manage under strains and give little to the system. It is a position of compromise and demands review.

A major concern about the concept is the issue of judiciary budget. The NJC appoints judges and justices according to its budget. There is a glaring shortfall of justices of the Supreme Court which is constitutionally regulated. There are new Courts of Appeal but no new appointments in that cadre. There have always been shortage of judges considering the judges/cases ratio. The courtrooms everywhere are not in the best of conditions. JUSUN is never happy. Where is the budget? Who determines what is budgeted after disbursement from the consolidated fund. The legislature and executive enjoy abundance and independence. But seemingly not so the judiciary.

We have situations that Governors give vehicles and houses to judges as largesse. There are overlaps. The executive build the courts while maintenance is shared responsibility. There was a serious imbroglio over the 2010 Magistrates' Court Law of Lagos State  concerning the control of the magistracy. It was as serious as Lagos Branch went to court and Ikeja was gearing for 'tiger' action when Ikorodu brought the parties to a table.

How much is handed out and for what purpose is shrouded in secrecy. What can be seen of judiciary expenditure reveal misplaced priorities.

The issue of judiciary budget is of concern unless we think for instance that the failure to refurbish Court 2 of the Supreme Court for such a long time is not the business of the Bar.

It is worthy of note that as heads of the NJC and the SJCs, the management of resources could put the CJN and the CJs on the line of probe for virements. Financial independence could lead the judiciary into temptation while dependence engenders lobbying and concomitant compromises. Perhaps that is why the Chief Registrar, a staffer, is the accounting officer at both levels.

It is pertinent to consider statutory and perhaps constitutional guidelines for arriving at the share of the judiciary from the federation and state accounts taking cognizance of the demand-supply peculiarity of the judiciary unlike other arms of government.

The Judiciary Self-accounting Law of Lagos State is novel as it gives the Judiciary financial autonomy on capital and recurrent expenditures so much to a fault that the accounting officer, the Chief Registrar, only accounts for expenditures (to no particular person or body) and not for surplusages. Yet the executive arm takes away the responsibility of building courts and maintaining them.

Between the tiers, the states provide the  infrastructure before the NJC appoints the judge(s) of Federal High Courts. That explains why FHC Ikeja is no longer functioning because the facilities provided by Lagos is inadequate.

The Bar is inappropriately eminently represented in the NJC where its role is merely to contribute when justices of the appellate courts are being appointed. There are lawyers in the SJCs but the are not representatives of the Bar. They are just handpicked because there are no state Bars.

In any case, the Judiciary never complained about its budget. Yet, so many things are wrong in the capital and recurrent expenditure profile of the judiciary.

And the Bar must be interested!

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