Judiciary should be fiercely independent

Justice Niki Tobi of the Supreme Court, who died at age of 76 in June 2016 was a fantastic judge. However, there are other fantastic judges like him, whose reports of their judgments would immortalise. The list includes the father of Charly Boy, Justice (Philosopher/King) Chukwudifu Oputa – may his soul too rest in peace.

My view is that the judiciary should be made fiercely independent because it is the weakest of the three Arms of Government. Montesquieu never supposed his doctrine of separation of powers to be absolute. The principle of checks and balance is a necessary corollary of the theory of separation of power. If the theory is strictly adhered to, it can destroy the very public liberties, which it is meant to safeguard and purify.

Article III of the American Constitution vests judicial powers in the Supreme Court of the United States of America. This shows clearly that there is definitely a clear separation of power in the case of Myers Versus United States. Justice Brande asserted that the doctrine of separation of powers was adopted in the convention of 1787 not to promote efficiency but to preclude the exercise of any Arbitrary power.

The doctrine of separation has been embodies in the Commonwealth of Australian Constitution Act of 1901 and its validity had been tested in the wheat case. It is a check and balance theory, which had been adopted in Nigeria rather than a strict application of separation of powers.

The judiciary has no influence over either the sword or the wealth of the society and can take no active resolution whatever. It can clearly be said to have neither force nor will but mere pronouncing judgment. Whereas the National Assembly have been vested with legislative powers as well as State Houses of Assembly, yet they have been vested with investigative powers under section 120 and section 125 respectively of the 1979 constitution.

The Constitutional Drafting Committee observed on these investigative powers that they must be couched in such terms as to avoid an invasion of the field of judicature and these powers are intended to be ancillary to their legislative functions. It is to be believed that section 50 of the draft constitution constitutionally ensured that there will be no possibility of any conflict between the legislature as a body and the judiciary.
Section 6 of the 1975 constitution provides for judicial review powers, which is vested in the court enumerated therein. Section 274 of the constitution gives powers to courts to review a law made by either the National Assembly and declare it invalid if not in conformity with the provisions of the constitution. The courts will declare such things or issues “ultra vires” or invalid.

Furthermore, it is said that “such judiciary review” of legislation is an obvious encroachment upon the principle of separation of powers in the continental countries. The judiciary does not have the power of judicial review of legislative powers or actions in strict application of the doctrine of separation of powers. In the United States, Australia, India and Sri Lanka, the supreme courts have the power to strike down a law which is not in accordance with the constitution. In a written constitution particularly in the case of a Federal Constitution, judiciary must be given power to decide whether a legislative or executive measure is “Ultra Vires”, the constitution or an ordinary law is valid or not valid. It is therefore very amazing and intriguing that two personalities would have resembling tract records in the field of outstanding professional careers. One is 90 years old and eleven years older and humble and the older man spritely as a 50years old man. He exudes self–confidence and he is Dr. Professor Sodipo who happens to be a Real Literary Genius, who over half a century had practised anaesthetics and herbal medicine with orthodox medicine.

In his field of law, Dr. Professor Hon. Justice A.F.D. Kuti has also delved into herbal medicine too and a master in his legal field as an Authority in International law and both had travelled all over the world. They have nothing in common to do with politics and they are so passionate about development in Nigeria. God bless Nigeria and as they both want good Government for this country, it is time for that change and this Government with Assemblage of the best brains must do just that. Some with tripple or three portfolios in one, they are bound to succeed. We wish them all well. Governance is itself, a rather complex exercise and government had invaded all the spheres of life of the ordinary citizens and taxation should be paid promptly.

If we evade tax payment, there will be no fund to tackle problems in education, health housing and generally welfarism. Displaced people, must be relocated with dignity as some have been unemployed up to 2years. The widows must be seen as societal problem, the poor, the needy the underprivileged – all are bound to rush to seek succour and support. God will surely save Nigeria because it is His own Nation.

Justice Kuti, a retired judge of the Federal Capital Territory (FCT), writes from Lagos.