In several of my public discourses, I have interrogated the challenges facing serving judges in Nigeria, particularly regarding their remunerations. Beyond these interventions, I have had the opportunity to serve on various committees at different levels, notably within the National Judicial Council and the Body of Benchers, advocating for the proper remuneration of judges. Thanks to God and all stakeholders involved in this struggle, we are gradually approaching a better situation, although challenges remain. The journey towards adequate remuneration for judges is far from over, and the situation is certainly not yet ideal. However, my focus in this conversation revolves around the plight of retired judicial officers in the face of the imminent salary upgrades for serving judges. Moreover, I seize the opportunity to address some other salient areas of interest in this development.
It is heartening to witness the executive, after nearly two decades, taking steps to improve the salaries and allowances of judicial officers. Yet, as remarked above, there remain so many fundamental lapses in the proposed bill. To date, the best that has been achieved via the proposed bill is the increment in the emoluments of the judicial officers. Beyond that, the precarious situation of the judicial officers has not legally changed, except for their removal from the erstwhile certain political, public, and judicial office holders (salaries and allowances, etc.) Act. Despite the revolutionary appearance of the bill, it has failed to radically address the predicament of the judicial officers. The attendant praises that greeted the arrival of the bill gloss over the fundamentals. The long-standing agitation has been to insulate the judicial officers from the executive’s discretion in the determination and fixing of the salaries of the judicial officers, coupled with the demand for the automatic review of the emoluments without subjecting them to the recommendation of any other entity. This is the crux of the agitation over the years.
With the arrival of this bill, those critical components are missing, which implies that after succeeding with this review, the judicial officers will again have to look up to the executive for another future review. This might necessitate another age-long campaign and struggle. How long are we going to engage in this? My suspicion, as I opined elsewhere, is that the psyche of our people has been so much brutalized and bastardized that little interventions mean a lot to them. In other words, just because there is attention being paid to the issue, we instantly forget the purpose of the struggle. The current euphoria is that, at long last, the supplications of the judicial officers have been answered. This has made us forget that, in the form and manner in which the bill stands, we will be back to the same status quo suffered in the recent past before too long. The future review will still largely be at the behest of the executive; in other words, it is when the executive is willing to smile at the judicial officers again that a desirable review will occur. This undoubtedly will continue to subjugate the judiciary to the aprons of the executive. Unless the judiciary is in the good book of the executive, nothing positive can happen to their lives. This is simply a case of financial dependency, impairing the independence of the judiciary. The associated implication is that he who pays the piper will continue to dictate the tune.
As if that is insufficient insolence, the entitlement is still subject to the determination and monitoring of the Revenue Mobilization and Allocation and Fiscal Commission, and review only cognizable upon the recommendation of the Commission to the President. This situation is still untidy and retrogressive, a must to be addressed. As I indicated above, unless a permanent adjustment mechanism is introduced, the judicial officers will still remain at the mercy of the executive. Hitherto, I have, in several fora, advocated the need to index the remuneration of judges to the economic situation of the country and other factors without waiting for any person or authority to adjust. A beggar judiciary can only give begging justice. Our judges still need to be saved from their present precarious positions and ultimate perilous end.
Judges are, by their calling, expected to be righteous, upright, independent, impartial, and, of necessity, incorruptible. This implies that at all times, they must be above board in all their dealings, particularly in the adjudication of cases. This onerous duty of fairness and impartiality must be discharged regardless of the prevailing circumstances. The way to the salvation of the judiciary, therefore, is to extricate them from the apron of the executive. It must be remembered that a hungry judge is a reckless target for the devil of corruption. Again, in the proposed bill, I cannot find any provision dealing with the step mechanism, regardless of the years of service. This has been part of the stakeholders’ advocacy but which again is not countenanced. A judge that has served for twenty years would earn the same remuneration as the newly appointed judge.
Now to my destination in this engagement. As hope rises for the serving judicial officers, can the same be said of the retired judicial officers? In response to this, a consideration of the constitutional provision dealing with the pension rights is apt. In this respect, and without boring you, Section 291 (3) (A) of the 1999 Constitution as altered provides that any person who has held office as a judicial officer of a superior court of record—(a) for a period of not less than ten years shall, if he retires at or after the age of sixty-five years, be entitled to a pension for life at a rate equivalent to his last annual salary and all allowances in addition to any other retirement benefits to which he may be entitled—(b) for a period of less than ten years shall, if he retires at or after the age of sixty-five years, be entitled to a pension for life at a rate as in paragraph (a) of this subsection pro-rata the number of years he served as a judicial officer in relation to the period of ten years and all allowances in addition to other retirement benefits to which he may be entitled under his terms and conditions of service; and (c) in any other case, shall be entitled to such pension and other retirement benefits as may be regulated by an Act of National Assembly.
This is the extant position of the constitution on the entitlements of a retired judicial personnel. If the provision is taken superficially, it means that the retired judicial officers will not be beneficiaries of the impending upgrade. As apparent in the provision of the constitution relating to the issue, it implies that those who retired on or before the effective date of the bill, which is January 2024, will not benefit from the increment. This is the effect of the narrow construction of the provision, adopting the literal rule.
The consequence of this interpretation will be the imposition of hardship on the retired judicial officers, thereby, in my humble view, defeating the essence of the provision. This is so as the provision delimits the entitlement to the salaries and allowances accruable as at the date of the retirement. The rationale behind the provision, to my mind, is to ensure that the retired judicial officers continue to enjoy the same package as they are used to prior to retirement, having met the threshold specified by the constitution. It must have been premised on the assumption that the economy will be reasonably stable, at least for the probable period of survival of such a retired judicial officer.
Undoubtedly, it is certainly not intended to subjugate the retired judicial officers to any peril. Therefore, to narrowly construe the provision in such a manner will sentence the retired judicial officers to perennial and perpetual poverty. Sensing this danger, therefore, the only viable interpretative option will be a liberal interpretation, complemented by the mischief rule. If this is adopted, the underpinning basis for the provision becomes glaring, and it is essentially to put the retired judicial officers who have satisfied the prerequisites on the same pedestal with the serving judges. Once this parameter for the introduction of the provision is understood, then it is easier to interpret the provision in a manner that it will achieve its desired objectives.
The alternative to the proposition above is to alter the provision by removing the effective date of the determination of the accruable sums. This is a legislative function that needs to be urgently triggered by the parliamentarians if the souls of the retired judicial officers are to be preserved. This is desirable before the ultimate passage of the bill. Upon the modification of the provision, retired judicial officers can then take benefit of the new package.
This is a way to guarantee their future for them and discourage the tendency and temptation to be corrupt. In as much as we fail to guarantee the future for them, the probability of providing for their future is inevitable. This is what breeds corruption. Hence, in line with this expectation, the stakeholders need to act. Judicial officers, after years of meritorious service, ought to be well-packaged for the future. The retirement package must be sufficient to address their needs after retirement.
Not only must housing be guaranteed, health support is a must after having used the better part of them. Whatever sums payable must be able to meet their future basic needs. Although the constitution provides for the sustenance of their allowances after office, this is hardly honoured. The present practice and state of affairs, therefore, further pauperizes the retired judicial officers.
The retired judicial officers must be availed of the allowances they were hitherto enjoying while in service. In a jurisdiction like South Africa, surviving spouses even enjoy such patronages. While the struggle was ongoing, not so much respect have we really fought the battle of the retired judges also.
The rationale for this is not far-fetched, and it is simply due to the fact that the constitutional provision involved will appear to suggest that they are entitled to not only the salaries but also the allowances they earned last. The point needs to be made that due to the paltry retirement package and pensions judges are subjected to, a sense of future insecurity is imposed on them.
To this end, this impairs not only their reasoning and objectivity; it saps their peace of mind to concentrate on the job. Where the judge is unsure of a settlement plan, it weakens his focus in all ramifications. The worst scenario as rightly noted by President Tinubu is that upon retirement, the retired judicial officers can no more practice their trade.
What a predicament! In summing up, society needs to appreciate the fact that a strong pillar for the prevalence of the rule of law is the independence of the judiciary. This is heavily dependent on the degree of financial provision for the institution.
As a writer, Colin Turpin aptly puts it, if other branches of government would not be allowed to assume the status of a monster, society must ensure the existence and independence of the judicial authorities “so that their decisions are reached in accordance with law and not in their submission to the wishes of government or upon other extraneous considerations”.
