The judiciary constitutes the arm of government that interprets the law of the state and applies the existing law to individual cases. In any modern state, the liberty of individuals depends upon the fairness of the courts in providing protection against the tyranny of overzealous members of the government.
In Nigeria, for example, the judiciary is made up of a large number of courts, ranging from the Supreme court, Appeal courts, High courts and down to magistrate and customary courts. The judiciary consists of judges who are honest and impartial with sound legal knowledge.
Characteristics of The Judiciary in a State
- Impartiality: The Judiciary is impartial to the extent that it is not a creation of the executive or legislature and so cannot be influenced by them.
- Political Neutrality: The Judiciary is politically neutral. Judges do not engage in partisan politics but rather acts as an arbiter in cases of political disagreements.
- Permanence: The Judiciary is a permanent institution inherited by successive governments. Its terms do not end at the end of any political regime or tenure.
- Professionalism: The Judiciary is made up of judges who are legal experts. This enhances the integrity and efficiency of jurists.
- Independence: The Judiciary is made independent of the executive and the legislature, in order to avoid undue interferences and delays in the judicial process and to promote separation of power.
- Stable tenure of office of Judges: In some countries, judges hold office until they retire, if they are not found guilty of any corrupt practices or ill health. Stable tenure increases skill by taking advantage of experience.
- Judicial Immunity: Judges enjoy judicial immunity in the performance of their duties.
- Due Process: The Judiciary operates according to laid down procedure or precedence.
- Code of Conduct: The Judiciary has prescribed code of conduct in integrity.
Functions of the judiciary
- Interpretation of laws: The judge interprets the laws of the state and applies the existing law to individual cases.
- Settlement of disputes: The courts deal with cases between private individuals and the government. Both criminal and civil cases are settled in the courts.
- Punishment of offenders: The courts have the power to punish those that have offended the laws of the state.
- Prevention of wrongful acts: By means of writ and restraining order, courts act to prevent violation of law.
- Safe – guarding the rights of citizens: The judiciary safeguards the rights and liberties of individuals, by way of entertaining complaints from aggrieved people.
- Protection of the constitution: The judiciary has the power to determine whether the constitution has been violated or not.
- Power of review: The judiciary is vested with the power to review some of the activities of the executive and the legislature.
THE INDEPENDENCE OF THE JUDICIARY
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.
Essentials for the independence of the Judiciary
- Appointment: Judges and magistrates should not be appointed by the executive or the legislature; they should be appointed by a neutral body such as the Judicial Service Commission.
- Independence of the judiciary: Judges must be independent from the absolute control of either the executive or the legislature. The judiciary should be free from arbitrary control.
- Promotion of judges: Promotion of judges should also be done by an independent body.
- Remuneration: The salaries and allowances of judges should not be subject to frequent alterations and must be sufficient. To promote this, they are paid from the consolidated account.
- Security of tenure: No other arm of government should have the power to remove a judge. He has to remain in office as long as he is of good behaviour and free from corruption.
- Immunity: Judges must be immuned from the law so as to discharge their duties without fear or favour.
- Judges must not belong to any political party: They must not belong to any political party so that they would not be influenced by the political tide.
- Extra security: Security should be provided for judges in and outside the courts so that they will not be intimidated.
PROBLEMS/ENCROACHMENTS ON 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.
- Governments based on 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 in the courts: For example, stationery, light, water and verbatim reporting machine are lacking in courts today.
- 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 favour 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.
- Setting up of tribunals: Some times people making up the tribunals do not have proper legal training hence cannot interpret the laws adequately.
WAYS BY WHICH THE EFFICIENCY OF THE JUDICIARY CAN BE GUARANTEED IN SAFEGUARDING THE RIGHT OF A CITIZEN.
- Appointment: A neutral body and not the Executive should appoint the officials of judiciary.
- Dismissal: As long as the executive does not appoint judges, they should also not be involved in their dismissal.
- Separation of Power: In keeping with the theory of separation of powers among the organs of government, there is the need to respect this by strictly adhering to this theory.
- Remuneration: The salary and remuneration of Judges should be sufficient and this should be from the consolidated fund.
- Funding: The Executive should keep its hand off funding the judiciary.
- Immunity: Immunity of the judiciary as one of the arms of government will ensure efficiency.
- Promotion: Judges should be promoted when due and should not be from the executive arm of government.
- Independence of the judiciary: Judges must be totally free from every control and interference of the other arms of government.
- Security of tenure of office: Judges should have security of tenure and to remain in office as long as they maintain honesty in their work.
- Political neutrality: Judges can easily be influenced by the tides and waves of politics if they belong to political parties. So, they should not belong to any political party.
- Security: There should be enough security provided for Judges both within and outside the courts, so that threats to their lifes, harassment, etc. are checked.
- Fair treatment: Judges should be treated fairly and this in return will promote efficiency of the judiciary. It will also help them to remain impartial in the execution of their duty.
Black’s law dictionary defines Plea Bargain as the “process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approved”.
Plea bargaining results in a plea agreement between the prosecutor, the lawyer who leads the case against a defendant (the accused). In this agreement, the defendant agrees to plead guilty without a trial and in return, the prosecutor agrees to dismiss certain charges or make favourable sentence recommendations to the court.
The key operating words are “agreement” and “approval” of the court. Agreement must be between the prosecuting counsel (lawyer for the government or state) and the defense counsel (lawyer standing for the accused). And whatever agreement is reached must receive the approval of the court.
However, plea bargaining is never automatic and may not be implemented arbitrarily. Here in Nigeria, the Attorney General of the Federation should be the head of prosecution. He is supposed to give his approval to any plea bargaining agreement before such an agreement could be presented to the Presiding Judge.
ARGUMENTS AGAINST PLEA BARGAINING
- Outright Abuse: Today plea bargain is used more frequently than before and it has started to be abused. For example, a situation in which an accused person is charged with embezzling public fund to the tune of N20 million, he agrees to return the sum of N10 million in a plea bargain. This is indeed wrong and should be corrected or rejected outright.
- Embezzlement of Public Fund: Many people or officials in government, even, as custodian of public funds may begin to embezzle public funds with impunity.
- Punishment of Offenders: Punishment of offenders in the state is the sole function of the judiciary and so due process of law should take the centre stage in judging cases with criminal tendencies. In plea bargaining, a criminal case could be concluded without a trial and this is a minus for an institution seen as the last hope of the people against the wrongful use of power by an unpopular government.
- Limitation to the application of the rule of law: This process is a limitation to the application of the rule of law. The law is supposed to be supreme over everybody irrespective of one’s political or economic status. What applies to the rich should also apply to the poor. The law is not a respecter of any person.
- Zeal for Hard Work will be Jetfisoned: This is because a short-cut to money making has been discovered.