There is a growing public disquiet about the workings of judiciary in Nigeria. As such, reverberations of the saga between the former Chief Justice of Nigeria Aloysius Katsina-Alu and the suspended President of the Court of Appeal, Justice Ayo Salami, have continued to echo round the country. On the heels of this complicated event was the recent dissolution of the Borno State Election Petitions Tribunal, as ordered by the acting President of the Federal Court of Appeal, Justice Dalhatu Adamu, who later rescinded the order barely 24 hours after it was made.Given the unique responsibilities of the judiciary worldwide in facilitating civil government by contributing to the rule of law, creating an environment conducive to economic growth, making power-holder accountable to the democratic rules of the game, and ensuring the protection of human rights established in the constitutions, the unsavoury happenings at the higher echelons of the nations body of judges are of concern not only to those in the legal profession, but also to the general public who have always regarded the judiciary as the true bastion against oppression.In a democracy, justice must be seen to be done. To do justice is to ensure that those who engage in a lawsuit are able to go into the court, and appear before the judge, that is not plagued by judicial misconduct, political interference and corruption. Litigants, witnesses, lawyers, and courts staff should be confident that judges administering justice in the country are defending the rule of law and protecting the human rights of individuals against those who may deny them rightful treatments. But where senior judges appear to be behaving in a patrician manner as if they are out of touch with the experiences and social problems facing ordinary Nigerians, the public has the right to evaluate these judicial participants in a process that affects them in their daily lives.In terms of this evaluation therefore, I hereby propose that senior judges, including the Chief Justice of the Federation and the President of the Federal Court of Appeal be made accountable for any allegations of political interference, corruption and judicial misconduct in an explanatory (rather than legalistic) sense before the National Assembly. The National Assembly stands at the apex of the government in that it passes the law and is the body responsible for calling executive to account. Justice Frankfurter of the US Supreme Court, in United States v Lovett 328 U.S. 303 (1946), at 319, quoting Oliver Wendell Holmes famous injunction, stated that: It must be remembered that legislators are the ultimate guardians of the liberties and welfare of the people, in quite as great a degree as the Courts. So, since the Nigerian public is always the judiciarys main focus of concern and National Assembly also represents the people, requiring senior judges therefore to give evidence periodically, say, to the Committees on Judiciary, Human Rights and Legal Matters (for the Senate) and the House Committees on Judiciary, Human Rights and Legal Matters (for the House of Representatives) on allegation of judicial shenanigans could help the judiciary to remain accountable.It should be emphasised here that this proposal is not based on the premise that judges should be answerable to both the committees in terms of justifying their decisions. Rather, the argument here is that judges should answer to the National Assembly through committees appearances in the explanatory sense on the administration of the justice system, not on law or cases they have decided. Subject to this caveat therefore, it seems to me then that there is no reason why the senior judges of the Supreme Court and the Court of Appeal should not appear before the National Assembly to be cross-examined on social, economic and political opinions they might be harbouring. Judges are tasked to seek equity or fairness of treatment in the pursuit of justice for the defendant. Prejudiced judges are incapable of treating everyone with fairness that can lead to a search for the truth.There is no pretence that this proposal may perhaps be dismissed as wishful thinking, because it is likely to make substantial inroads into the constitutional separation of powers, and again because the nations judiciary already has both the National Judicial Council and the National Judicial Institute through which its integrity and effectiveness can be assessed. But the validity of this proposal is widely recognised under international law, and its adoption in the country therefore should not raise any serious difficulties or conflict with functions of the NJC and NJI. In the first place, to address the concern over doctrine of separation of powers, it must be remembered that this doctrine is at its core purposive in nature. This purposive element follows with it and must inform the approach to separation of powers jurisprudence. To neglect this purposive element in any attempt at definition of functions of the three arms of government would be clearly repugnant to the doctrines history, development and application in many politiesAlso, it is worth pointing out that most courts all over the world in judicial exegeses and scholars in academic commentaries have since recognised the immense difficulties involved in attempting to categorise the multifarious functions of government as legislative, executive and judicial and to isolate these functions in the hands of one of the respective branches. MJC Vile, in his seminal book, Constitutionalism and the Separation of Powers, remarks that: The pure doctrine of the separation of powers implied that the functions of government could be uniquely divided up between the branches of government in such a way that no branch needs ever exercise the function of another. In practice such a division of function has never been achieved, nor indeed is it desirable that it should be, for it would involve a disjuncture in the actions of government which would be intolerable. (p.349) He went further, noting that: The misconception of the functional categories of the separation of powers therefore, stemmed from the naive view that there were distinct actions of willing and execution that could be isolated and kept in separate compartmentsIf we pursue the analysis to its limits we see that the exclusive allocation of rule-making, rule application, or rule-adjudication to particular organs of government is not only inconvenient, it is probably quite impossible. Every act of every official, except perhaps the most routine and trivial operations, embodies all three types of activity. (p.351).- Dr. Ajetunmobi teaches International Law at the University of Portsmouth. He wrote in via abdulsalam.ajetunmobi@port.ac.uk
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