UK Supreme Court Nullification of Parliament’s Prorogation by Prime Minister Boris Johnson: Important Lessons for the Independence of Judiciary in Nigeria –Kayode Ajulo, Ph.D

BACKGROUND

It will be recalled that on the 28th of August 2019, British Prime Minister Boris Johnson asked the Queen to hold her customary speech in mid-October, a move many believed was calculated to suspend Parliament for a month and tactically limit lawmakers’ time to block a no-deal BREXIT.

This singular request by the PM amplified the drama and intrigues surrounding the UK’s decision to withdraw its membership of the European Union. The Queen acting pursuant to the request by the PM ordered as follows: “It is this day ordered by Her Majesty in Council that the Prorogued on a day no earlier than Monday the 9th day of September and no later than Thursday the 12th day of September 2019 to Monday the 14th day of October 2019,”

The purported prorogation of Parliament led to a public outcry in the UK, the Speaker of the House of Commons said it represented “a constitutional outrage”. He further opined that in the light of the challenging period the UK is passing through, it is important that the elected parliament has its say, after all, the UK operates a parliamentary democracy.

In order to resolve this constitutional turmoil, the matter was brought before the Court.

On the 6th of September, 2019, a claim brought by legal campaigner Gina Miller that the Prime Minister acted unlawfully in giving advice to the Queen to suspend Parliament at a time of momentous political disturbance was dismissed by the High Court of England.

However, on the 11th of September 2019, a Scottish Court ruled that “Boris Johnson’s decision to prorogue parliament for five weeks was unlawful.

The case thus headed to the Supreme Court and on the 24th of September, the Supreme Court in a unanimous decision held that the prorogation was justiciable, and it was in the power of the court to rule on it. It further held that the prorogation was unlawful, as it had the effect of preventing parliament from carrying out its constitutional functions.

The Court also found that the Prime Minister’s advice to the Queen was unlawful, void and of no effect. SEE R V. THE PRIME MINISTER (2019) EWHC 2381(QB), SEE ALSO CHERRY AND ORS V. ADVOCATE GENERAL FOR SCOTLAND (2019) CSIH 49.

This case without equivocation is one that crisscrossed the three arms of government in the UK, that is, the Cabinet, the Parliament and the Judiciary, it is on the strength of the foregoing, that this article has become necessary in order to underscore the significance of separated powers in the UK and more importantly to localize the lessons within the Nigerian constitutional and political contexts viz-a-viz this unanimous decision of the UK Supreme Court.

INTRODUCTION

One of the imperatives of constitutional democracy is the doctrine of separation of powers which can be described as a form of power sharing arrangement among the three arms of government i.e. the legislature, the executive and the judiciary. For proper context, it is important to state that the United Kingdom is both a parliamentary democracy and a constitutional monarchy, it means that citizens elect a legislative body called a Parliament to represent their interests and carry out their wishes and aspirations.

However, as a constitutional monarchy, the Monarch i.e. the Queen serves as Ceremonial Head of State but has limited powers which of course is shared with the Parliament.

The situation is slightly different in Nigeria where sovereignty resides in the people, not in a Monarch and the government through the Nigerian Constitution derives all its powers and authority. SEE SECTION 14(2), PARA A OF THE 1999 CONSTITUTION AS ALTERED.

These governmental powers are delineated under SECTIONS 4, 5 AND 6 OF THE CFRN and they are thus called the legislative, executive and the judicial powers of the Federal Republic of Nigeria.

However, for the purpose of this article and as may be inferred from the background, the independence or otherwise of the Nigerian judiciary viz-a-viz the landmark UK Supreme Court judgment will be dissected.

INDEPENDENCE OR OTHERWISE OF THE NIGERIAN JUDICIARY

The Judiciary has often been referred to as the last hope of the common man, a leveler for all classes of people, the custodian of the law and the dispenser of justice in a country. By extension, Nigeria’s judiciary is often regarded as the bastion of hope and justice, a place of refuge for the common man as well as place of respite for the rich and affluent.

The different courts are vested with specific jurisdictions to decide cases under the Constitution and the enabling Statutes.  As a result, the hierarchy of court which lays down the doctrine of judicial precedent is well grounded in the nation’s legal system.

Flowing from the above, judicial independence in Nigeria has been a subject of intense debates among legal scholars, politicians, commentators and even lawyers. There has been quite a number of unsuccessful attempts by legal writers to demystify the term judicial independence in relation to the prevailing political or constitutional realities.

Does the Nigerian Constitution for instance support a total separation of judicial power, this may be answered in the affirmative, that is, with respect to its judicial function of interpretation of the law, the Nigerian judiciary enjoys its judicial power to the exclusion of the other two organs of government.

However, the principle of checks and balances ensures a limitation on the exercise of the power of appointment of judges by the Judiciary itself through the National Judicial Council and as such the legislature and the executive play key roles in the appointment of some Judges most especially the Heads of Court.

For instance, the appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate.  Similar provisions apply to the President of the Court of Appeal and the Chief Judge of the Federal High Court.

In the light of the appointive powers shared by the three arms of government with respect to the appointment of those class of judges, it can be safely stated that the doctrine of separation of power does not assert a complete or a total division of powers.

This invariably means core judicial powers are exercised independently to the exclusion of other organs while mere duties of appointment of Heads of Court are performed with the sanction of the Legislature and the Executive. What then is judicial independence or independence of the judiciary?

In simple terms, it means a situation where the judiciary as an institution, individual judges adjudicating on cases and other judicial personnel are able to discharge their professional duties and responsibilities without influence or interference by the Executive or Legislature or any other person or institution within or outside the judiciary.   Judicial Independence can be described as a well-entrenched and desirable principle which stipulates that the “judiciary should be separated from legislative and executive power, not only that but also extends to it having a form of protective shield against inappropriate pressure from the other branches of government, the public and from private, or partisan interests.

This is to be seen also in the non-justiciable Chapter of the 1999 Constitution as altered, specifically, Section 17(1) (e) states that:

“The independence, impartiality and integrity of courts of law, and easy accessibility thereto shall be secured and maintained.”  Independence of the Judiciary in essence suggests judicial autonomy in all of its ramifications.

The Nigerian judiciary in recent times has been accused of all manners of atrocities, some born out of genuine concerns and some, out of ignorance as to its roles in the tripartite governmental arrangement. The accusations pale into insignificance when the deliberate actions of the other arms towards the judiciary especially the executive are anything to go by.

The Nigerian Judiciary is still a pawn in the hands of the executive with respect to the issue of financial autonomy, it has become a tale of lamentable proportions. It should be recalled that this issue was again brought to the fore by a person no less than the Head of the Judiciary himself, the Chief Justice of Nigerian, Honourable Justice Ibrahim Tanko at the 59th annual general conference of the Nigerian Bar Association. The CJN called for a full financial autonomy for the judiciary in order to uphold “justice without interference”.

A good example of the Judiciary being subservient in terms of financial autonomy to the executive can be seen in the recent procurement of sixteen brand new 2019 model Toyota Land Cruiser Prado SUVs for the use of the Judges and the Chief Judge of the State by the Governor of Ondo State, Olurotimi Akeredolu SAN. This move, on the surface of it may seem commendable on the part of the Governor, however it reveals an underlying issue, this is buttressed by the fact that the Judges have been in need of replacement of their ten-year old rickety vehicles before the intervention of the Governor and as stated by the Chief Judge, the “regulation” provides that judges are entitled to new vehicles every four years.

Thus, a Four-year entitlement became a Ten-year old neglect, this would have persisted but for the large-heartedness of the Governor of Ondo State. This clearly was a situation which could have been avoided via the instrumentality of a financial autonomy in place as it would have ensured that the Chief Judge of Ondo State in this particular example, timely catered to the Judges’ “official car needs” in pursuance of her constitutional role as the Head of the Court.

Therefore, the said regulation creates a form of entitlement, however, a more wholesome entitlement is to be seen in the 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA AS ALTERED.

A community reading of Sections 84 and 121(3) of the CFRN as altered reveals a grant of financial autonomy to the Judiciary by providing that recurrent expenditure (in addition to salaries and allowances) of the judicial officers of the federation and the State shall be charge upon the Consolidated Revenue Fund of the Federation. It is regrettable that as we speak the executive has failed to fully comply with these constitutional provisions, hence creating a lack of autonomy for judicial officers which in turn means that the judiciary is still being subjected to interference. It is thus more or less the case of he who pays the piper dictates the tone, this is absolutely unacceptable in a constitutional democracy.

This serves as a strong reminder to the executive arm to comply with these constitutional provisions in order for the Judiciary to be financially autonomous. Financial autonomy is therefore argued by this article to be one of the two-pronged imperatives for the independence of the Nigerian Judiciary.

The other leg of it will be de-politicization of judicial appointments, judicial appointments should not be a subject of political patronage or partisanship. The processes laid down by the National Judicial Council for the appointment of judicial officers must be strictly adhered to. The Federal Judicial Service Commission should also live up to its advisory duties to the National Judicial Council in the appointment of judicial officers.

The place of merit and qualifications cannot be overemphasized because the Judiciary of any nation holds the key to its attainment of social justice and economic prosperity. Thus, it makes sense to ensure that only men of capacity, competence and character end up on the Bench or the Bar.

THE UK SUPREME COURT DECISION AND NIGERIA

The UK Supreme Court’s nullification of the purported suspension or prorogation of Parliament by the Prime Minister Boris is a bold and audacious attempt to reinforce the rule of law in the United Kingdom.

Despite the fact that it has an Uncodified Constitution, the observance of the democratic principle of separation of power among its three arms of government is not in doubt.

The landmark judicial decision has again put the UK’s judiciary on the pedestal of nations with a strong penchant for the compliance and adherence to the rule of law.

Quite commendable and worthy of emulation is the alacrity with which the Prime Minister obeyed the judgement of the Court. In the unanimous judgment, the Court remarked thus: “We have been told by counsel for the Prime Minister that he will ‘take all necessary steps to comply with the terms of any declaration made by the Court”, and we expect him to do so.” These words coming from the apex Court in the United Kingdom show the high level of confidence the Court has that its decision will be forthwith complied with by the government.

And to lend credence to the firm confidence of the Court, the Prime Minister though disagreeing with the judgement complied forthwith with it.

Worthy of commendation also is the role the media has played throughout the hearing of the matter, particularly the broadcast of the Prime Minister’s compliance with the judgment and his subsequent acts to show his total surrender to the judiciary, thereby reinforcing the rule of law.

It boggles the mind when the profundity and industry of the Supreme Court is considered vis-à-vis the very limited time it took the Court to expeditiously hear and determine the appeal. The Court heard the appeal on the 17th, 18th and 19th of September, 2019 and it delivered its considered decision on the 24th September, 2019 – just five days after hearing. Also commendable and worthy of emulation is the very short time it took the matter from the High Court of England and Wales and the Inner House of the Court of Session in Scotland up to the Supreme Court for final determination.

It is not far from the truth that Nigeria is still lagging behind in such democratic development and total independence of the judiciary. Nigeria, despite its codified Constitution, is bedeviled with a lot of institutional challenges and a lot has gone wrong with our judicial system.

The Judiciary is currently being viewed as a weak institution and perhaps the weakest link in our country’s political system. It is buffeted with the issues of political interference and this cannot be allowed to continue.

There is nothing commendable in subjecting judgments of Courts to political debates and choosing which Order to obey and the one to disobey. It is quite appalling we live in a clime where the government rationalizes flagrant disobedience to Court Orders.

We need to take a cue from the landmark decision of the UK Supreme Court and set the Nigerian judiciary on the path of total independence from any form of political interference whatsoever.

As a first step, the issue of financial autonomy should be addressed as soon as possible. It is important that judges get their remuneration and salaries from the heads of their courts rather than the executive. This is ably supported by the provisions of Section 84(2), 84(4), 84(7) and Section 121 of the 1999 CFRN as altered. This will go a long way in warding off unnecessary pressure from the executive and will in turn enable judges to discharge their duties dispassionately.

It is also strongly recommended that the public should be educated from time to time on the constitutional roles and limits of the judiciary, the negative public perception of the judiciary is to a large extent borne out of ignorance of the constitutional and statutory duties of lawyers and judges alike.

In a country where perception is often louder than reality, it will be a good suggestion to have advocacies spearheaded by the Nigeria Bar Association to educate the citizens, more like a ‘Bar and Town’ meeting.

The training received by a lawyer permits him to defend a suspect, however in Nigeria, a high profile suspect linked to corruption for instance is given little or no benefit of reasonable doubt, his trial starts in the ‘public/media court’, before finally getting to the court of law, the lawyer defending him may as well incur the wrath of the public which gives him an antagonistic tag of a corrupt lawyer.

This is not good for the image of the profession and by extension the independence of the judiciary as such kind of public pressure can equally sway individual judges sitting on the particular matter.

It is hoped that this article will further stimulate a wider discourse on how judicial independence can be fostered and attained in Nigeria.