[Re: Odinkalu] CJN’s Attendance: The need to separate administrative function from judicial functions

Fatai Abiodun

I read the submission made by the learned professor of law, Professor Chidi Odinkalu criticising the official administrative role performed by the Chief Justice of Nigeria during the foundation laying ceremony of the judicial quarters in Abuja Federal Capital Territory under the auspices of the Hon. Minister of the Federal Capital Territory, Chief Nyesom Wike.

While acknowledging the fact that freedom of expression is an inherent right guaranteed by the 1999 Constitution and others enabling international laws, such a right is not absolute and not without caution.

The author Prof. Odinkalu had asked, “What confidence would Julius Berger have in the judiciary if it intends to challenge the revocation at the courts when the CJN herself went to flag off the construction?”

The author is relying on the Revised Code of Conduct for judicial officers of the Federal Republic of Nigeria, Rule 2.8 Judicial Code of Conduct which states that “A Judge shall avoid developing an excessively close relationship with frequent litigants – such as govt ministers or their officials…., – if such relationship could reasonably create an appearance of partiality.”

The ground norm which is the constitution acknowledges three arms of government which include legislative, executive and judiciary. The powers of the legislative to make laws for peace and good governance in the country are not in doubt. The powers of the executive to perform legislative functions such as issuing executive orders was also not in doubt while the powers given to the judiciary for the interpretation of laws among others were also in the affirmative.

A clear understanding of the constitution shows that the executive is not to serve as police for the legislative or judiciary, the same reason Montesquieu averred that when the executive and the legislative powers are united in the same person, there can be no liberty because apprehension may arise; and there would be an end to everything, were the same man or the same body to exercise the powers of legislature, executive and judiciary.

It is important to correct the impression of the general public on the separation of powers, the Constitution and the several statutes give the Judiciary power to exercise some executive and legislative powers outside the court functions and does not cause harm to the rule of law and democracy.

The idea of judicial officers attending events, seminars, commissioning and delivering lectures is not a judicial function but an executive ones and the idea of the Court making subsidiary legislation to support primary legislation is an act of performing legislative duty amongst others.

It is important to state that there is a clear difference between administrative function and judicial function. The Code of Conduct for judicial officers including the Chief Justice of Nigeria as head of the judiciary is guided and inclusive of the provisions contained therein which only lay credence to the performance of a judicial function, not an administrative function.

The code of conduct also gives room for a handshake between the judicial officer and the litigant but must not be excessive. The Nigeria constitution is standing on a tripod blocks and a scrutiny of the entire constitution never envisages an enmity between the three arms of government. The drafters of the constitution intend that all the arms of government must work together for the collective win of democracy and good governance.

While agreeing with the position of  Prof. Ali Ahmad, a foremost law teacher and former lawmaker both at the Kwara State House of Assembly and House of Representatives on the principle of separation of power, the learned Prof Ali posited that misrepresentation of the role of the National Assembly is not only pervasive but worsening, I added that the misconception of the role of judiciary in nation’s development is sickening, and the worst effect is that judiciary cannot talk not because it does not know what to say but where to begin.

Relying on the explanation above, the function performed by the Chief Justice of Nigeria, Justice Kekere-Ekun on the groundbreaking ceremony of the judicial quarters is best fit for a mere administrative function which the constitution acknowledged, and any alleged violation of rights is justiceable in court of competent jurisdiction.

The question of what confidence would Julius Berger have in the judiciary if it intends to challenge the revocation at the courts when the CJN herself went to flag off the construction is not a question without an answer and is not new to the subject of litigation in Nigeria.

While I do not want to dwell extensively with the principle of land revocation as established under the Land Use Act. The primary feature of revocation is the serving of revocation notice and the need for such action on the grounds of public interest.

The Court of law is the Court of equity and justice. There are several occasions where the National Industrial Court faulted the actions of the judiciary including itself, superior courts and administrative agencies of the judiciary for wrongful and illegal actions; ordered reinstatement and awarded damages.

The Industrial Court like other courts did not rule based on espirit de-corps in favour of the judiciary but solely on the pure principle of law. A closer look at the oath of office for judicial officers clears all doubts as to what is expected of the judicial officers.

I won’t fail to stress the need for constructive criticism, not the one that is based on beer-parlour assertion. I hope the learned professor will find time to give an update to my submission on the above subject matter.

Fatai Abiodun writes from Abuja and can be reached via

Albarka200709@yahoo.com

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