The independence of the judiciary is always a problematic issue not necessarily because it is desirable but because the judiciary itself is embedded in the political process and this tends to weaken the freedom of the judiciary to operate freely.
By independence of the judiciary, we mean freedom of judges from political control or influence in the administration of justice so that the individual citizen will be aide to enjoy his legal rights and liberties without government interference.
This implies that the process of rule adjudication should be separated from politics.
In other words, the courts should be above politics. It may be a tall order to ensure the independence of the judiciary especially since top judicial appointments are made by the executive. Moreover, many of the issues handled by the judiciary are essentially political.
For instance; the interpretation of constitution and judicial review are essentially political issues. Yet it is Independence of the judiciary for a number of reasons.
The Independence Of Judiciary | Definition
An independent judiciary is one which is free from the interference of the other two arms of government, the executive and legislature. Judges should be free when interpreting the law of the land, they should work without fear or favour.
Unless the judiciary is independent, it will not be able to pass judgements impartially. Besides, it will not be able to defend citizens against wrongful use of power by an unpopular Head of state.
Therefore, the independence of the judiciary is a necessity, if people are to enjoy their rights and freedom.
Reasons For Independence Of Judiciary
It is necessary to safeguard the independence of the judiciary for the following reasons:
It protects the rights and liberties of the citizens. The courts help to protect the people from a powerful state.
It prevents too much concentration of political power in the hand of government, and by so doing, guide against the excesses of democracy or the tyranny of the majority.
Judicial independence prevents abuse of power by government functionaries.
It enables judges to perform their duties without fear or favour.
The independence of the judiciary facilitates the interpretation of the constitution.
An independent judiciary gives the people confidence in the political system and its capacity to provide good governance.
Problems of the Independence of the Judiciary
Political appointments: In some countries, the appointment of judges is influenced by the executives. The executive have often used their power to appoint persons known to support their policies.
Decrees: Military regimes promulgate decrees that cannot be challenged in the law courts.
Disrespect of court decision / orders: Sometimes, the decisions of the law courts are disobeyed by the executive.
Dictatorship: Dictatorial governments have the ability of interfering in the activities of the judiciary. Such government come up at times with obnoxious laws.
Inadequate facilities: For example, stationery, light, water and verbatim reporting machine are lacking in courts today most especially in developing countries.
Political interference: Often times, the decisions of the court may unduly be influenced by the other arms of government.
Backdating of laws: In Britain, for example, no court can question the Acts of parliament because of its supremacy. The Parliament can even backdate laws to favor a particular individual, e.g. a politician and thereby render decisions of courts useless.
Insufficient personnel: There are few judges to deal with large volumes of cases, leading to delays in treatment of cases.
Bribery and corruption: Bribery and corruption lead to lack of confidence in the judiciary.
Poor conditions of service: Poor conditions of service of the judicial officers are some of the problems facing the judiciary arm of government.
Setting up of tribunals: Many a time, people making up the tribunals do not have proper legal training hence cannot interpret the laws adequately.
The independence of the judiciary can be maintained in the following ways:
The appointment and discipline of judges should be handled by an independent and impartial body.
Judges should have security of tenure. Security of tenure implies that judges should hold their appointment subject to good behaviour and not to the wishes of any particular government. That is, judges should not subject be removed from office until they are due for retirement except on grounds of misconduct or poor performances.
Judges should be well paid and their salaries and allowances should be paid from the Federal Consolidated Fund.
They should enjoy immunity from prosecution concerning any issue that may arise in the course of their work.
Judges themselves should be impartial and politically neutral.
Judges should be elected or their work should be subjeet to regular peer review so that they would be responsive to the feelings of the people.
There should be strict adherence to the principle of separation of powers.
Judges ought to be exposed to regular professional training especially in the areas of professional ethics, development of new laws, and citizenship education so their ability to deliver justice could be greatly enhanced.