SOCIO-ECONOMIC Rights and Accountability Project (SERAP), respectfully submits the present Complaint to the Special Rapporteur on the independence of judges and lawyers over attacks by the Nigerian government on the independence and impartiality of judges, and the consequent denial of the internationally recognized right to an effective remedy. According to our information, at the Federal Judicial Service Commission on February 1 and 2, 2011, the Chief Justice of Nigeria, Honorable Justice Aloysius Katsina-Alu reportedly discussed the proposal to strengthen the Supreme Court by moving the President of the Court of Appeal Honorable Justice Ayo Isa Salami, to the Supreme Court, allegedly to be replaced with a pro-government judge. The matter was not placed on the meeting agenda, and no paper was circulated on the matter. Justice Salami has since rejected the apparently political and suspicious promotion. We note that Justice Salami has been an activist judge who has consistently stood for justice and fair play in his position as the President of the Court of Appeal. It would seem that the law is being used in this case as an instrument of to perpetuate injustice against Justice Salami apparently for future political gains of the Nigerian government. We are seriously concerned that the purported promotion may be a ploy to remove Justice Salami from the Court of Appeal without due process and any justifications whatsoever, so as to pave the way for a pro-government judge to be appointed to the Court of Appeal. The Court of Appeal performs important functions in the adjudication of election disputes. The recommendation to promote Justice Salami therefore raises questions especially given that it is coming just a few months before a general election. We are concerned that the recommendation of Justice Salami for promotion undermines the fundamental principles of separation of powers and supremacy of the rule of law, both of which are pre-requisites for an administration of justice, which ensures independence, impartiality, integrity, equality, transparency, and the protection of human rights. The purported recommendation is entirely inconsistent with the UN Convention against Corruption and the Basic Principles on the Independence of the Judiciary, which requires states to ensure impartiality and transparency in judicial decisions, which should always be based on facts, and be made in accordance with the law, without undue influences, inducements, pressures, threats or interferences, whether direct or indirect. According to the Basic Principles, It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary. The recommendation to remove Justice Salami from the Court of Appeal is also discriminatory because it not based on objective factor but rather as a punishment for his activism and his judicial opinions, which is implicitly prohibited under the Basic Principles. This process has seriously undermined the term of office of Justice Salami, his independence, security and conditions of service. We believe that the institutional separation of the judiciary from the other arms of the government is a necessary bulwark against all forms of political tyranny, administrative victimization and oppression. We also note that Article 10 of the Universal Declaration of Human Rights (UDHR) proclaims that: everyone is entitled in the full equality to a fair and public hearing by an independent and impartial tribunal. Similarly, Article 14(1) of the International Covenant on Civil and Political Rights specifically guarantees to everyone the right to a fair and public hearing by a competent, independent and impartial tribunal in the determination . . . of any charge against him. We believe that the above statements of law reaffirm and reflect the fundamental principle of judicial independence, which requires the other two branches of government--the executive and the legislature-- to refrain from conduct that may undermine or diminish the legitimacy of the judiciary. We further state that judicial independence is necessary and indeed a sine qua non, not for the personal benefit of judges, but rather for the protection of those who appear before the courts, and those affected by their decisions. We also believe that the apparent removal of Justice Salami from his position as the President of the Court of Appeal undermines the rule of law, which is the establishment of individual freedoms and the protection against any manifestation of arbitrary power by the public authorities. In its proper application, the rule of law is concerned with legality, but it implies far more than mere legality and far more than ensuring that what is done by those in authority is done in accordance with law. It implies the application of hallowed principles of justice both in the context of the law and in the procedures and institutions by which it is enforced. We believe that the action by the Nigerian government is capable of undermining the governments ability to secure a steady, upright, and impartial administration of the laws, a responsibility required by international and regional human rights treaties, including the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples Rights to which Nigeria is a state party.
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