Nigerian Judiciary in 2018: Prospects, Hopes and Aspirations
The Nigerian Judiciary, is expectedly in the news. It is the beginning of a new year, 2018 and politics is in the air again; and so the Judiciary and the entire Justice system, are expected to conform to the whims and caprices of Politicians and the media.
One of the biggest challenges confronting this arm of Government, is the fact that public observers and commentators, expect the judiciary to make adjustments each time the masquerade of the politicians come out to make their seasonal festivities. The wheel has almost turned full circle, another four years is about or around the corner, and the general elections and all the baggage it carries, particularly the legal consequences of political party shenanigans masquerading as democratic preliminaries, are suddenly upon us. One of the anomalies of this season, is that both the political class and the general public, expect the judiciary at the flag-off of political war games called elections, to abandon all that is before it and go straight to resolve political disputes at the expense of the wheels of the society, which continues to grind on in the nature of criminal, commercial, constitutional, land, chieftaincy etc cases, even after the politicians have been settled. Now, the greatest regret of the advent of politics and political activity, is that it is these other matters highlighted above, that in reality, turn the wheels of the Nigerian economy and socio-cultural life. Their adjudication or determination are prolonged or abandoned, until the main political office holders are sworn in and the judiciary can catch a breath of fresh air. In the interim, every other judicial activity is put on hold, until the politicians have been dealt with and are satisfied.
Why the Judiciary is Under Pressure The objective of this discourse, is to analyse why the Judiciary is placed under such undue and unwarranted pressure in the period leading up to and including the conduct of a general election. Why are politicians or indeed elective officials, so selfish that every other thing or activity is relegated to the back burner until their own respective and indeed, peculiar political status, is sorted out by the courts? The answer is simple. Several provisions of the Nigerian Constitution and the Electoral Act tie the result of an election i.e. to the office of President, Governor, Senate, House of Representatives, Houses of Assembly of the 36 States of the Federation and the elections to the 774 Local Government Councils, to the determination of election petitions by the hierarchy of Courts in Nigeria. In a nutshell, therefore, the Judiciary is an integral part of the elective process in Nigeria, and the electoral and indeed political process, can be marred by the wrong strategy being adopted by the judiciary.
Now, the reality is that, there appears to be a game of cat and mouse being played here. Because the political class in Nigeria have refused to attain political puberty and maturity, they have been unable to shed such dangerous political coats and skins such as, election rigging, open bribery of the electorate during elections, the use of thugs and other riff-riffs to achieve certain base political ends, the bribery or corruption of INEC officials and judicial officers, the uncertainty of the electoral laws applicable in any election such as the status of the card reader during Registration and whether accreditation and election ought to run Pari-Passu, are still matters for which there are still no clear legislative or statutory answers, and same applies to other forms of serious misconduct perpetrated by the political class.
The Public already associate politicians with these bad habits, and because there is a symbiotic relationship between the elected officials and the led (people), it is easy to overlook the excesses of these elected officials and their agents (the civil service and hordes of advisers). The nature of the relationship between elective office holders and the people, is that the governance and administration of the peoples’ livelihood is in the hands of these motley crowd (politicians), and being in control of the purse strings, they can deploy the peoples’ resources and commonwealth in such a way and manner that their sins are either obscured or transferred to its perennial scapegoat – the Judiciary. The latter is therefore, not in an enviable position at this point in time. It is therefore, the objective of this discourse to find out how the judiciary can shed this unwanted and unwarranted toga of being a clog in the wheel of justice, and to expose who the real culprit is i.e. - as between the Executive and Legislative arms of Government on the one hand and the Judiciary on the other hand. It will be appropriate to begin with the nature and quality of today’s judiciary.
The Nature and Quality of the Nigerian Judiciary Vis-a- Vis its Constitutional Role and Functions
In terms of the quality of manpower, zeal and training, the Nigerian Judiciary, nay the entire legal system, stands among the best in the world. However, attitudinal and behavioural disposition, the subterranean interference by the parties interested in the outcome of justice, low morale, insufficient or inadequate remuneration, poor infrastructure, absence of working tools, unpredictable system for the appointment and discipline of judges, corruption here and there, etc have all contributed in assaulting the independence of the Nigerian Judiciary in a very detrimental manner. The Bar, even at the level of the Nigerian Bar Association, has done little to appropriate to the Judiciary through its advocacy platform (which it undoubtedly possesses), those tools it needs to sustain its independence in these trying times.
The DSS Raids on Judges As indicated above, the chicken has come home to roost. On or about the 8th of October 2016, Nigeria’s premier security outfit, the Department of State Services acting in a gestapo manner reminiscent of a covert military operation conducted behind enemy lines, invaded in a planned manner, houses of senior Judges in Abuja, Port Harcourt and Kaduna, and took them into custody. As expected, the exercise was greeted with widespread condemnation of the actions of the APC government in power. Till date, not one Judge has been convicted or sanctioned as a result of the said exercise, and it is clear from the brittleness and undue haste with which the exercise was conducted, that nothing useful came out of it.
However, there is a school of thought with which I identify and subscribe to, that the entire invasion was planned, and that it is part of the masterplan by those who carried out the invasion, to put the Judiciary in a situation where its independence is so badly compromised that it will only do the bidding of certain critical and indeed well-placed Government officials in 2019, the year of our general election.
In the aftermath of the assault on Judges as described above, some of the affected Judges, Inyang-Okoro and Ngwuta JJ: SC alleged that the Minister of Transport Rt. Hon. Rotimi Amaechi, in the company of one Umana, tried to induce them to influence or deflect the decision of the Supreme Court in the Rivers Governorship case in his (Amaechi’s) favour, (see the Vanguard Newspaper of 19/10/2016), but they (severally) rebuffed his overtures. Although, Minister Amaechi denied the allegation and threatened to sue for defamation, nothing has been heard of his libel suit.
The EFCC on the other hand, also carried out a systematic but concerted attack through social media bloggers, on the judiciary and some targeted senior members of the Bar. For instance, some Judges were arraigned before their brother Judges, accused of receiving bribes from colleagues who were alleged to have given them gifts during their children’s wedding. These and other forms of harassment became EFCC’s approach to exacting retribution from Judges who had given judgement against its interest, or against Lawyers who persistently defended politically exposed persons charged to court for allegations of financial crimes. In a nutshell, these harassments, too numerous to catalogue here, were or are aimed at achieving one objective i.e. to erode the independence of the judiciary in such a manner that come 2019, there will be a pliant and pacified judiciary which will act the script written by the political puppeteers of this Administration, which is to impose on Nigeria and Nigerians another four years of a Buhari/APC administration. This explains why there was concerted effort to block the present Chief Justice of Nigeria, the Hon Justice WSN Onnoghen GCON from assuming this exalted office; this also explains why there has been sponsored criticism of the composition of the Corruption Courts Monitoring Committee set up by the said CJN, and so many other measures put in place by the Judiciary.
Indeed, the body language of this Administration, has been to paint the judiciary in a very dirty way; that it is corrupt and the weakest link in the governance chain of the country. But in reality, is the judiciary corrupt as the Executive has made it out to be? This discourse will next consider the issue of corruption vis a vis the Judiciary.
Corruption and the Nigerian Judiciary The effect of persistent and recurrent corruption in the Judiciary of any political system, is that it completely blunts 5
the ability of the courts to do justice even in cases where it has no pecuniary interest. This is because, the precedents it has set for itself, which forms the basis of future decisions, have been based on corrupt platforms. Now corruption is akin to a primed grenade being used as a toy, by children in a playground. It will destroy everybody in the long run. To the question – whether corruption exists in the Nigerian Judiciary, the answer is that it does, but not at the high levels you will find the same pervasive corruption in the Executive and Legislative arms of Government. This is so, because the judiciary is part of the Nigerian society, to which corruption has become an endemic feature. A microcosm, cannot be different from its host. However, the idea of corruption is anathema to the judicial system, because of the level of trust and confidence that is reposed in it. That is why even 15%-20% corruption within the ranks of the judiciary, is intolerable. What the percentage of corrupt judges is in Nigeria, is irrelevant. The fact that it exists, is demonstrated by some of the disciplinary measures meted out by the National Judicial Council (NJC) on corrupt Judges.
The main reason why the Judiciary cannot be allowed to be corrupt, is because of the plenitude of its powers and consequent functionality as it relates to redressing rights of all citizens that approach it. See section 6-(6)-(b) of the 1999 CFRN which vests ‘Judicial powers in the designated courts to all matters between persons or between Government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person’. The essence of this provision, is that the Judiciary is the designated body to determine the civil rights and obligations of Nigerians. It follows that all authorities inclusive of Government and all persons, artificial or real, are not above the courts, and are indeed subordinated and obligated to obey and respect its determination. It is not for these Agencies and highly placed persons, to make determinations as to who is corrupt, or not before they have been tried in a law court. To do so, as many highly placed Government officials and the media have done in the past, amounts to a naked usurpation of the judicial powers of the courts.
Undoubtedly, there is a severe crisis of confidence in the judicial arm of Government. Do the courts meet the expectation of the people in the discharge of its primary responsibilities? The answer is obviously in the negative. The consensus is that, the corrupt elements in the court system and the Bar, have given the entire sector an almost irredeemable bad name. One of the measures to be embarked upon in order to restore the image and efficacy of this arm of Government, is the expulsion of Judges who
“IN TERMS OF THE QUALITY OF MANPOWER, ZEAL AND TRAINING, THE NIGERIAN JUDICIARY, NAY THE ENTIRE LEGAL SYSTEM STANDS AMONG THE BEST IN THE WORLD”
have been proven to be corrupt from the system. This can be achieved by or vide two routes; (a) the criminal investigation and trial route and (b) the Administrative or complaint based system of discipline. These avenues intersect one another, and it is important where a judicial officer is to be tried in a court of criminal jurisdiction, for such an officer to be suspended from his office. In that vein, the dignity of the office of a judge, is not compromised by the criminal trial in progress. This step is not undertaken by the NJC in the course of its civil disciplinary powers, but it is the effect of where a Judge is arrested and charged to court for allegedly committing a criminal offence. The law takes its course, as it does with every citizen.
As it relates to administrative conduit for the discipline of judicial officers. That is a course exclusively preserved for the NJC by virtue of Sections 153, 160 and 291 of the 1999 Constitution. The end result of any disciplinary action, is either a reprimand, suspension from office, compulsory retirement, placement on the watch list or dismissal. No other organisation, inclusive of the DSS, EFCC, ICPC or even the Police, ought to or can influence the NJC, whilst discharging the afore described civil disciplinary process for judicial officers. The efficacy of reform measures to be embarked upon, to steer the justice sector from the abyss of corruption, ought to be the main objective now. This is in addition to the reform of the appointment procedure for judicial officers, so that only the best and indeed honest Lawyers, are appointed to the Bench.
The Case of Nganjiwa v FRN Delivered by the Lagos Division of the Court of Appeal on December 11, 2017
The aftermath of the unprecedented assault on the Judiciary by the DSS and EFCC, has ignited a defence mechanism and response in the judiciary. As expected, no judiciary worth its salt, will sit idly by and allow its independence to be trashed and trampled upon by other arms of Government.
However, in my considered view, the case of Nganjiwa v FRN, is an example of overreaction by the Judiciary. Above all, it is my humble view, that the main premise on which the case was decided, with respect, is wrong. The facts are as follows:
The Appellant in this matter is a serving judicial officer, specifically a Judge of the Federal High Court of Nigeria, who was arraigned before the High Court of Lagos State Coram Hon Akintoye J, through a 14 Count Information dated the 8th of June 2017, wherein he was alleged to have committed offences ranging from unlawful enrichment by a public officer to making false information to public officers’ contrary to some sections of the Criminal Law of Lagos State. The Appellant took out a preliminary objection against his trial, on the ground that ‘having regard to the doctrine of the independence of the Judiciary and separation of powers, whether the executive arm of Government acting through the EFCC (or any other authority), can directly prosecute a serving judicial officer without following an alleged due process, by first referring the matter to the National Judicial Council for prior disciplinary action?
In resolving this issue of intense constitutional ramification, the Court of Appeal concluded that, a serving Judge must go through the process of disciplinary action of the NJC, before he faces a criminal trial consisting of the same set of facts. Indeed, the Court of Appeal’s pronouncement at page 17 of its judgement aptly conveys the court’s reasoning thus: 'Whenever a breach of judicial oath occurs, it is a misconduct itself, then the NJC is the appropriate body to investigate such breaches by the judicial officer, and if found to be so, such judicial officer shall face disciplinary action and the NJC may recommend the removal of such a judicial officer to the appropriate authority, which is either the President in the case of a Federal Judicial Officer or the Governor of the State in the case of a State Judicial Officer and/ or take other actions appropriately. When this is done and accepted by the appropriate authority in compliance with the provisions of the Constitution, then the relevant Law Enforcement Agent or Agency, is at liberty to make the said judicial officer face the wrath of the law. Any act done by the Law Enforcement Agent or Agency in violation of the above, is tantamount to denying the NJC its powers to discipline Judges in accordance with the provisions of Section 153(1) and paragraph 21 part 1 of the Third Schedule, of the 1999 Constitution (as amended). See paragraphs 21(a) & (b) of the Third Schedule, Part 1 of the 1999 Constitution (as amended) respectively. Whenever there is an allegation of official misconduct against a judicial officer, and the above stated process is not adhered to, it amounts to jumping the gun and ipso facto, a direct violation of the Constitution. Recourse to the National Judicial Council, is a condition precedent as clearly set out by the Constitution, and any attempt by any Agency of Government to by-pass the Council, will amount to failure to observe the condition precedent, thereby leading to flagrant violation of the Constitution’.
The truth is that, the harassment of the Judiciary by Agents and Agencies of the Executive Arm of Government referred to above, have in the past 12 months become a recurring decimal, and its officials have made it a past-time to invade the houses of Judicial Officers and charge them to court for flimsy allegations. In my humble view, the rendering of the above judgement, is not the answer to executive lawlessness and harassment of the judiciary. This decision brings about a collision between the doctrine of separation of powers, which the Court of Appeal hinged its judgements on and the overriding principles of Equality before the Law, which is an intrinsic and integral part of the Rule of law. Consequently, should there be any reason to make a choice between issues of separation of powers and that of the Rule of law, my view is that the Principles of Equality before the Law, must prevail.
It is safe to surmise that there is no provision of the Constitution that directly or inferentially provides immunity for judicial officers from criminal prosecution. Section 308 of the CFRN 1999 (as amended), exclusively provides immunity from criminal and civil prosecution before courts, to the President, Vice President, Governors and Deputy-Governors. No other public office holder or judicial office holder, is immune from prosecution, even if it is only temporarily secured by recourse to delayed prosecution, arising from the postulation that the NJC must exercise disciplinary proceedings before a criminal trial on the same facts can be undertaken by the State. It is my considered view, that no provision of the Constitution, not even section 153 thereof and paragraph 21 of the 3rd Schedule to the Constitution, can be interpreted to vest the NJC with a prior disciplinary jurisdiction over and above that of the ordinary courts of the land. In the absence of any direct legislation, constitutional and statutory in respect of the powers of delayed prosecution of Judges now arrogated to the NJC, it follows that such power is rooted in quicksand.
The Court of Appeal was mindful of the potential absurdity of its reasoning above, it provided what appears to be a tenuous explanation or distinction between its eventual position and the reality of the situation, which is that judicial officers ought not to be above the law thus: ‘It must be expressly stated that, if a judicial officer commits theft, fraud, murder or manslaughter, arson and the likes, which are crimes committed outside the scope of the performance of his official functions, he may be arrested, interrogated and prosecuted accordingly by the State DIRECTLY without recourse to the NJC. These classes of criminal acts are not envisaged and captured by the provisions of paragraph 21, part 1 of the Third Schedule. On the other hand, if any Judicial Officer commits a professional misconduct within the scope of his duty and is investigated, arrested and subsequently prosecuted by security agents without a formal complaint/report to the NJC, it will be a usurpation of the latter’s constitutionally guaranteed powers under Section 158 and paragraph 21 Part 1 of the Third Schedule, thereby inhibiting, and interfering with and obstructing the NJC from carrying out its disciplinary control over erring judicial officers, as clearly provided by the Constitution. This will amount to a violation of the constitutionally guaranteed independence of (a fundamental component) of the judiciary. See ELELU-HABEEB & ANOR v A.G. FEDERATION (supra).
The reality is that even where a judge is accused of committing a heinous crime such as murder or arson, while occupying the office of judge, the fact that it is murder does not place it outside the performance of a judge in his official capacity. The toga of a judge continues to remain with him until justice is done, one way or the other. After all the recipients of justice as postulated by the Supreme Court in the celebrated case of JOSIAH v STATE include, the State, the Accused, the Victim and the Society.
Consequently, where a judge is charged to court for a bona fide criminal offence bordering on misconduct as contained in the Judicial handbook on the Code of Conduct for Judges, the issues thrown up go beyond the image and dignity of Judges. What is thrown up at that point in time, is the satisfaction of justice in relation to the offence alleged against the trial Judge. The issues thrown up are such that, there must be a speedy trial of the judge, with an unfettered opportunity for him to clear his name. Where he clears his name, he returns to his office, where he does not, the law takes it course. The Court of Appeal in a bid to justify its reasoning, provided several examples with other units of the executive i.e. Court Martials with the defence forces, orderly room trials with the Police and the investigation of Security Agencies over the Osborne Road, Ikoyi, Lagos cash recoveries. It appears that the judiciary has forgotten that it is the 3rd tier of Government, and not a department of the executive that is amenable to departmental inquiries. Once a citizen of Nigeria, including a Judge, is alleged to have committed a crime, prosecution must commence and an instant opportunity must be given to him to defend himself. The charge is not to be left hanging over his head, like the proverbial sword of Damocles. It is hoped that the Supreme Court will make the right adjustments, when called upon to do so in due course.
The Reality or Threat of Judicial Corruption
At the risk of being accused of blowing hot and cold, the thrust of this discourse is that today’s corruption in the judiciary is fanned and encouraged by the political class who have metamorphosed into the Government of the day on the one hand, and the opposition on the other hand. The truth is that 98% of all politicians prefer a situation where their success in an election is guaranteed, whether through the rigging of polls or the perversion of the judicial process by the bribery or coercion of Judges. Every politician is after assurance and certainty of his ambition. Consequently, politicians now take an active interest in who gets appointed to the higher Benches, from the High Court to the Supreme Court. This is because the same politicians lobby the high judicial office holders for appointment of certain chosen candidates, into election panels and appellate panels. Whether their entreaties work, is still a matter of serious debate at the moment, because the pattern and trend of the decisions of some suspected panels both at the level of the election panels and the appellate courts, is under serious scrutiny at the moment. With the new leadership of the Judiciary, the time has come for political interference in the adjudication of election cases. Once the Judiciary brings to an end this access allowed to politicians by such accommodations, the dignity of the Bench, will be instantly restored.
Conclusion The present leadership as with the leadership of the past judicial administrations, know the problems and have worked out the action plan(s) to restore the lost glory of the judiciary. This is not the place to publish such action plans. Suffice to say that (a) the speedy and correct adjudication of cases remains at the soul of all reforms. (b) the judiciary must say NO or learn to say NO, to the unreasonable requests of politicians and (c) judicial officers must remain faithful to their oaths of office. These are the fundamentals, and cannot be compromised. I commenced this discourse, by acknowledging the high quality of the personnel that man the judiciary. I reiterate that my position has not changed. Nigeria has the best set of Judges in the world, but we must insulate them from the corrupt antics of our political class. That can only be done by the legal profession, particularly, the judiciary itself. Until the yoke of such subtle and or direct interference is thrown off, Nigerians will never be able to fully enjoy their right to JUSTICE as provided in Chapter 2 of the 1999 Constitution (as amended).
“NIGERIA HAS THE BEST SET OF JUDGES IN THE WORLD, BUT WE MUST INSULATE THEM FROM THE CORRUPT ANTICS OF OUR POLITICAL CLASS. THAT CAN ONLY BE DONE BY THE LEGAL PROFESSION, PARTICULARLY, THE JUDICIARY ITSELF”