Aare Afe Babalola SAN
Founder/President , ABUAD

RELEVANCE OF SEPARATION OF POWERS AND ITS APPLICATION TO NIGERIA (2)

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 in Nigeria including those of the Supreme Court is nothing to write home about. As an investigation by Leadership Newspaper revealed last year, the salaries of Judges have not been increased in 12 years. A report published by the daily stated as follows:

“…investigation revealed that the remunerations of judges at both the federal and state levels have remained static for 12 years and that there is no indication that the situation will be addressed soon… A compilation of the annual remunerations of all the 1,067 judges in Nigeria revealed the sum of N8.7billion, the least earned by any of three arms of government. The figure is also, a sharp contrast of the N24billion voted in the 2019 budget as severance package for members of the outgoing 8th National Assembly members…the last time the judges’ salaries and allowances were increased was in 2007 following the enactment of the “Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc) (Amendment) Act of 2008” which came into force on February 1, 2007…From that time till date, there has not been an upward review of the earnings of judges, the sources said…the CJN’s annual basic salary is N3,353,972.50 (or N279,497.71 monthly), while other Justices of the Supreme Court and the President of the Court of Appeal receive N2,477,110 as basic annual salary or N206,425.83 monthly…The Justices of the Court of Appeal, Chief Judge of the Federal High Court, Chief Judge of the Federal Capital Territory (FCT) High Court and President of the Industrial Court, Grand Khadi of State and FCT Sharia Court of Appeal, President FCT and State Customary Court of Appeal earn annual basic salary of N1, 995,430.18 each…Also, judges of the Federal, State and FCT High Courts, National Industrial Court, Khadi Sharia Court of Appeal in the FCT and State; and FCT and State Customary Courts also earn an annual basic salary of N1,804,740 each.

 In a cross-country appraisal of the salaries of judges, LEADERSHIP discovered that the salaries and purchasing power of Nigeria judges and their counterparts abroad and even in some African countries are wide apart. For instance, in the United State of America (USA), while the Chief Justice John Roberts earns $255,500 (or N118, 807,500) per year, the eight associate justices earn a healthy pay raise to $244,400 (N113, 646,000). The current salary for the US Supreme Court justices is significantly higher than the average salaries earned in related occupations.

The President of the Supreme Court, Lord Chief Justice of Northern Ireland, Lord President of the Court of Session and Master of the Rolls make up Group 1.1 of the scale on £214,165 (N128,070,670), below only the Lord Chief Justice of England and Wales, who earns £239,845 (N143,427,310).

In South Africa, according to the latest report of the Independent Commission for the Remuneration of Public Office Bearers, chaired by Judge Willie Seriti, the judges in the high and labour courts earn annual salaries of R1.4-million (or N46.9million).

Judge-presidents (heads of court) pocket R1.6million (N53.6million) a year, Constitutional and Supreme Court judges get R1.7-million (N56.9million and the chief justice earns R2.3-million (N77million). The package of the president of the Supreme Court is just over R2million a year.”

With the above scenario, it is clear that the Judiciary does not enjoy the pride of place it should within the Nigerian governmental landscape. Such poor emoluments cannot safeguard its independence.

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.

                                             

AARE AFE BABALOLA SAN, CON

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