Moral, Legal and Ethic Justice Oloyede’s Publi
In most common law jurisdictions, the convention is that judicial officers are only seen and not heard, at least outside their courtrooms. To what extent does this maxim hold true when a serving judge feels compelled by circumstances to write a petition a
One hallmark of civilisation is the guarantee and preservation of the right to freedom of expression. This is regarded as sacrosanct and inalienable and in the Nigerian part of the legal firmament, by virtue of Section 39(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered) “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.
However, this right, just like many others guaranteed by the Constitution of the Federal Republic of Nigeria, 1999 (as altered) does not enjoy absolutism and certain parameters of limitations have become in-built in the law. It is in the light of the above that Section 45 of the Constitution becomes critical as it provides that
‘45. (1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society
(a) in the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedom or other persons’.
See INSPECTOR GENERAL OF POLICE v ALL NIGERIA PEOPLES PARTY [2007] 18 NWLR (Pt. 1066) 457.
The implication of the above is that no law derogating from Section 39 (in particular) shall be declared unconstitutional if the law is made in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons.
One of such laws establishing limitations to the right of freedom of expression of certain class of persons is the Code of Conduct for Judicial Officers enacted by the National Judicial Council established by Section 153(1)(j) of the Constitution of the Federal Republic of Nigeria. And it is in the light of this that we shall be considering the propriety or otherwise of the petition written by a serving judge of the High Court of the State of Osun, Justice Folahanmi Oloyede, against the incumbent Governor of the State, Ogbeni Rauf Adesoji Aregbesola.
The petition by the serving judge to the House of Assembly of of Osun state making sundry allegations of corruption and abuse of office against the Governor has taken a huge space in public discourse in the past few months. The petition, covering 36 pages of A4 paper, has generated a pertinent question whether it was within the boundaries of judicial propriety for the judge to publicly delve into such burning issues of political character as done by Justice Oloyede.
While Rule 3(B) (ii) of the Code of Conduct for Judicial Officers preserves the right of a judge to freedom of expression and association, the same rule prescribes that a judge, in exercising such rights, shall always conduct himself in such a manner as to preserve the dignity of his office and the impartiality and independence of the judiciary.
It will be more than simplistic and utterly ludicrous for any person to discountenance such an act of the judge as something tolerable in any sane society. Judges are saddled with the responsibility of adjudicating live issues and that is why they are to be less visible in public discourse as opinions ventured in pages of newspapers by judges may turn out to be the central point of dispute in the next case to be submitted to the judge for adjudication. This is why the act of Justice Oloyede qualifies as an infringement of the provision of the Code of Conduct for Judicial Officers which, while aiming at establishing an “Independent, strong, respected and respectable judiciary… for the impartial administration of Justice in a democratic State, prescribes that a Judicial Officer should actively participate in establishing, maintaining, enforcing, and himself observing a high standard of conduct so that the integrity and respect for the independence of the Judiciary may be preserved.
The question then is, can Justice Oloyede be said to have acted in a manner capable of assuring the independence of and respect for the judiciary before the populace that is sharply divided along political lines and who expect impartial administration of Justice in a democratic State of Osun by Justice Oloyede and her colleagues with whom she might have shared her tainted opinion of Ogbeni Rauf Aregbesola, his deputy, Mrs. Grace Titilayo Laoye-Tomori and their style of administration?
The allegations contained in the petition are replicas of what had been heard by traducers of the Governor more so from the camp of the Peoples’ Democratic Party. How on earth can Justice Oloyede be described as fit to be on the bench having expressed an opinion which may prejudice any executive act of the Governor and his administration if such an issue becomes the subject of litigation before her or any issue ancillary to that is subject to her judicial consideration and decision? Where is the assurance that any person associated with Governor Aregbesola’s administration would not be a victim of wrath and vengeance by Justice Oloyede in any matter pending before her? Can Justice Oloyede be considered in any sane society to be capable of dispensing justice fairly and evenly in any dispute in which All Progressives Congress, the party that produced Governor Aregbesola or any of its prominent member or patron is a litigant?
Whereas, Rule 1 of the Code of Conduct for Judicial Officers requires that [A] Judicial Officer should avoid impropriety and the appearance of impropriety in all his activities (which include private and personal activities and not necessarily judicial activities), the petition by Justice Oloyede has traversed beyond the limits of propriety as she has not only ventured into the arena of conflict but has joined the free-for-all in a political market where both substantiated and unsubstantiated allegations are traded in order to warm political ways into the hearts of the populace. This definitely is in excess of what is expected of a judicial officer who really knows his onions. Does it then mean that Justice Oloyede must be recused from any matters involving the interests of the Governor, his associates, commissioners, public officers and members and supporters of the Governor’s party in order to assure the public of the independence of the judiciary? Definitely, no matter would be good enough to be assigned to such a judge thereby rendering his or her office redundant. Is it not better and more honourable to excuse a judicial aberrant whose act is an infraction on the provision of Rule 1(1) of the Code of Conduct for Judicial Officers which stipulates that
“A Judicial Officer should respect and comply with the laws of the land and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary?”
This is the basis of the decision of the Court of Appeal in the case of ESTISIONE H. (NIG.) LTD. v OSUN STATE GOVERNMENT [2012] 14 NWLR (Pt. 1321) 540 @ 557 paras D - F, where Kekere-Ekun, JCA as she then was stated brilliantly as follows: ‘a Judge has a duty to recuse himself from proceedings where the factors enumerated by learned counsel for the appellants and set out earlier in this judgment i.e. pecuniary or proprietary interest, relationship with one of the parties, a previous expression of an opinion about the subject matter of the dispute, a previous expression of partisanship by expressing opinions antagonistic to or favourable to one of the parties before him, exist.’ Sec- tion C Rule 1 of the Code of Conduct for Judicial Officers of the Federal Republic of Nigeria provides that a Judicial Officer should disqualify himself in a proceeding in which his impartiality might reasonably be questioned. Several instances are set out therein, including those enumerated above. The instances are not exhaustive.
The implication of the above is that Justice Oloyede would have to be recused from all cases where interests of the Government of Osun, whether principal or ancillary, or the interest of any person associated or friendly