The National Judicial Council is making a desperate move to reclaim its control of the judiciary after the Department of State Services’ arrest of seven judges, writes RAMON OLADIMEJI
On October 17, 2016, the Economic and Financial Crimes Commission summoned two judges of the Federal High Court and grilled them for hours in its Lagos office.
The names of the two judges – Justices Mohammed Yunusa and Hyeladzira Nganjiwa – had earlier in March featured in bribery allegations levelled by the EFCC against two Senior Advocates of Nigeria.
Though the EFCC had since March filed criminal charges against the SANs and arraigned them in court, the judges were neither summoned nor questioned for their involvement with the SANs.
The eventual invitation of the two judges, one of whom had now been suspended by the National Judicial Council and recommended to the President for premature retirement, came only days after the Department of States Services embarked on a novel midnight sting operation on the judiciary.
At the centre of the DSS operation, which began on the night of October 7 and stretched into the early hours of October 8, were seven judges, including two sitting on the apex court of the land.
In an audacious and unprecedented style, the judges’ homes were broken into by reportedly masked operatives of the DSS, who operated all-night long before eventually whisking the judges away before the break of the dawn and took them into custody.
The initial reaction of the nation was that of horror and shock.
The Nigerian Bar Association had convened an emergency press conference where it described the action as an attack on the judiciary and immediately declared a state of emergency in the judiciary.
But the feelings of disgust and horror felt by the nation began to shift to mixed feelings when hours after the unexpected raids, the DSS came out with shocking allegation that its operatives recovered filthy lucre from the enclave of the judges.
The DSS spokesperson, Abdullahi Garba, had told the nation that the raids were informed by intelligence information on the alleged corrupt practices of the arrested judges.
In the home of three of the judges, the DSS claimed it recovered cash sums in various currencies totalling N270m — N93,558,000.00; $530,087; £25,970; and €5,680.
These revelations provoked the opprobrium of the public, which had all along suspected that there was a systemic corruption going on within the judiciary.
The public suspicion of corruption in the judiciary, which seemed to have now been substantiated by the DSS revelations, had been aroused by the reality that in spite of the endemic corruption in the country, high-profile looters were always getting discharged and acquitted, mainly on technical grounds of the law.
In other instances, judges had given orders shielding high-profile looters from being probed or prosecuted by the anti-graft agencies.
There were election petition cases decided in technical manner and the public felt that justice was not done but the court had spoken and it was final.
Instances of conflicting and confrontational orders on same subject matters, which put a question mark on the neutrality of judges of the Federal High Court presiding over the cases, were becoming rife and worrisome.
And so long, the judges had enjoyed the shroud of respect and protection bestowed upon them by virtue of their position. Theirs was an enclave into which no one could barge and an authority that the public could not question.
However, on October 7, the DSS did the unusual. It tested the unfamiliar water of the judges’ world by picking up seven of them. And the result of the novel operation seemed to be that the DSS had shown to the EFCC what was possible.
Though, the EFCC had complaints about Justice Yunusa, it was not clear whether it did anything about it.
The suspension of the judge by the NJC and his recommendation to the President for compulsory retirement was at the instance of a human rights organisation, Civil Society Network Against Corruption, which chronicled a number of cases where the judge had tied the hands of the EFCC.
The eventual invitation of Justice Yunusa by the EFCC on October 17, might have been inspired by what the DSS did in the judiciary.
The EFCC had now moved on to invite other judges.
On October 18, it invited and grilled Justice Musa Kurya.
It had already also played host to Justice Rita Ofili-Ajumogobia.
A court registrar, Helen Ogunleye, had also been called in for questioning.
The commission said it would invite more judges.
Also, the Senate, through its Committee on Judiciary, had broached the idea of inviting the arrested judges for questioning.
Some viewed the moves by agents of the executive and the legislature as an usurpation of the authority of the NJC, the body vested with the authority to self-regulate the judiciary and preserve its independence by regulating the conduct of judges and disciplining any judge found ethically wanting.
In the first place, the NJC had felt insulted that the DSS raids on judges came to it as a shock just as it came to all Nigerians. The NJC was miffed that the DSS would invade its space of authority without even giving it a notice of it.
In expressing displeasure over the DSS raids, the Chief Justice of Nigeria, Justice Mahmud Mohammed, who is the head of the NJC, had described the incident as unfortunate.
Mohammed’s first reaction after three days of silence was, “It is indeed very saddening and deeply regrettable, the distressing and unfortunate incident which occurred on Friday, October 7 and Saturday, October 8, 2016.
“However, I must ask all Nigerians to remain calm and prayerful, as emergency meeting of the National Judicial Council, which will take place tomorrow (Tuesday), will comprehensively look into the matter.”
Eminent legal luminaries in the country had been divided in their opinions on the legality or otherwise of the DSS raids and members of the public had been left to choose whichever of the opinions suited their fancy.
An organisation of lawyers, Legal Defence and Assistance Project, had described as misconceived the plan by the Senate to invite and question the seven judges in the wake of their arrest.
In a statement by its National Coordinator, Mr. Chino Obiagwu, LEDAP had contended that the Constitution did not give the legislature any oversight function on the judiciary pursuant to the principle of separation of power.
The group had argued that only the NJC was empowered by the constitution to regulate the conduct of judges and discipline any erring judicial officer.
LEDAP expressed worry that the arrest of judges by the DSS had now opened the judiciary to all manners of interference and intimidation by the executive and the legislature.
LEDAP said, “The 1999 Constitution, unlike the legal framework of past military regimes, has consolidated the independence of the judiciary and established the NJC as the only body responsible for the management of the judiciary.
“LEDAP is concerned that the recent raids and arrest of judges and justices by the DSS, and the continued assault and raid on judges by other agencies of the executive, have the effect of opening up the judiciary to unlawful and unconstitutional interference and intimidation by other arms of government, the reason for which the Senate has the temerity to speak about inviting judicial officers for questioning.”
As the group vowed, it had on Tuesday sued the DSS and the Attorney General of the Federation, seeking an order of perpetual injunction to restrain them from arraigning the judges before any court.
LEDAP also sought a million naira in general and examplary damages for each of the seven judges, for what it termed the violation of the rights of the judges to personal liberty, privacy, family life and presumption of innocence.
A prominent Senior Advocate of Nigeria, Chief Afe Babalola, had opined that no matter how meritorious the objective of the DSS operation might be, the manner in which it was carried out might have defeated the purpose.
Babalola had envisaged that the differences between the NJC and the DSS might deepen the imbroglio.
For instance, he asked whether while the DSS was probing and prosecuting the judges, they would be suspended by the NJC pending the outcome of the case.
Babalola said, “I am of the view that the Constitution requires that any infraction by judges be firstly investigated and resolved by the NJC to the exclusion of any other body or authority. Aside from the fact that this is what the Constitution requires, arresting serving judges without prior sanction of the NJC presents some very unique problems. If the judge is arraigned and granted bail, what impediment is there to prevent him from continuing to sit as a judge pending the determination of the allegations against him?
“Even if he is placed on suspension pending the trial, it is still conceivable that he may retain his job if he is eventually acquitted of the allegations against him. Thus, his accusers may eventually still find themselves before his court in other matters. Would it not be better and more practicable to firstly have the NJC investigate the matter and possibly remove from him the toga and aura of a judge before such arrest and arraignment? That the DSS acted as it did on the grounds that it was conducting an investigation or a “sting operation” as it described it was therefore a clear usurpation of the constitutional powers of the NJC.”
The problem which Babalola portended finally surfaced when the Nigerian Bar Association advised the NJC to asked the arrested judges to step aside pending the outcome of the allegations against them in order to preserve the honour of the judiciary.
The advice was instantly rejected by the NJC, which said it was against the provisions of “the 2014 Revised Judicial Discipline Regulations formulated by NJC pursuant to Section 160 of the 1999 Constitution.”
The NJC said, “It is to be reiterated also that by the provisions of Section 158 of the 1999 Constitution of the Federal Republic of Nigeria, as amended, the NJC shall not be subject to the direction or control of any other authority or person while exercising its disciplinary power of control over judicial officers in the federation.”
The NJC argued that if it were to follow the advice of the NBA, it would have suspended 808 judges against whom it was investigating various petitions.
Another fallout of the DSS invasion was that contrary to the provisions of the Code of Conduct for Judicial Officers which forbade judges from making public comments, the arrested judges descended into the arena with the DSS and were engaged in accusations and counter-accusations with the DSS and politicians.
Many have blamed the dilemma in which the judiciary had found itself on the failure of the NJC to live up to its responsibility of self-regulating the judiciary.
The Executive Director, Socio-Economic Rights and Accountability Project, Adetokunbo Mumuni, had said, “SERAP is seriously concerned that over the years the NJC has felt satisfied with applying only civil sanctions and has not deemed it fit to hand over corrupt judges to law enforcement agencies for prosecution nor recover the proceeds of corruption.
“This omission has left a destructive gap in judicial accountability in Nigeria, and resulted in other agencies of government, with no mandate, expertise and experience in the field, getting involved in the efforts to combat judicial corruption.”
Mumuni recalled that out of the 1,020 judges serving in the superior courts, the NJC had sanctioned no fewer than 64 between 2009 and 2014, mostly by sending them on compulsory retirement without more.
A Senior Advocate of Nigeria, Mr. Babatunde Ajibade, had expressed worry that the nation was at the risk of derailing its democracy in a situation where the regulation of the judiciary had been taken over by agents of the executive arm.
He said, “Right now, in my view, we run the risk of derailing our democracy. Irrespective of the offence of the judicial officers that were involved in those arrests, the fact is if the executive has the power to do that which has now been done by the DSS, it totally puts the judiciary under the control of the executive and any semblance of independence is gone. If a judge is in the process of considering a matter in which the executive has interest, all that the executive has to do is to break down his door at night, throw some dollars in his house, call the press and say he is corrupt. And that will be the end of that case. We run the risk of having a system where there is no check on the executive right now.”
The NJC is now obviously in a desperate move to regain its hold on the judiciary, recover its independence and shut out the interference of the executive and the legislature.
On Monday it launched a new National Judicial Policy regulating the conduct of judges.
The new policy covered various issues including the policy on judges’ appointment, their discipline, their education and training, among others.
One of the drastic provisions of the policy was that the NJC barred both judges and court workers from receiving gifts.
Section 2(3)(2) of the new policy stated that, “The Code of Conduct for Judicial Officers and Code of Conduct for Court Employees, with the amendment discouraging acceptance of gifts from other arms of government, should be such as would be adequate. Compliance with their provisions shall be mandatory.”
Another drastic provision was that anyone submitting any petition against a judge must never make it known to the press, failure of which the NJC said such a petition would have become incompetent and liable to be thrown out by it.
As a complement to its effort to seize control of the judiciary, the NJC also on Monday inaugurated a Judicial Ethics Committee.
The Committee, headed by a retired justice of the Supreme Court, Legbo Kutigi, was charged with the duty to “elaborate the provisions of the Code, explain and remind judicial officers of the provisions of the Code and, generally and do all such things necessary to ensure a continuous high standard of judicial accountability and probity.”
It is also to “monitor and report on laxity by judicial officers in observance of ethical standards in the performance of judicial duties.”
Its other members are two retired justices of the Supreme Court, Emmanuel Ayoola and A. I Iguh; a former President of the Court of the Court of Appeal, Umaru Abdullahi; a former Chief Judge of Rivers State, Justice Iche Ndu; a former Chief Judge of Adamawa State, Justice E.S. Bansi; the President of the National Industrial Court, Justice Babatunde Adejumo; a former President of the Nigerian Bar Association, Mr. Okey Wali (SAN), and the incumbent President of the NBA, Mr. Abubakar Mahmoud.
Commenting on the moves by the NJC to remedy the integrity of the judiciary, the Director, Access to Justice, Mr. Joseph Otteh, expressed reservation over the propriety of the new rule seeking to shut out the media from complaints about judges.
Otteh said, “I think that what the NJC is trying to do is to prevent allegations that have not been determined from tarnishing the image of the judges who are complained against. But that is wrong in a democratic setting where the media have their own way of sourcing information. It is not always the case that it is the petitioner that has given out information to the media and even if that is the case, it’s even wrong to say because the petitioner gave information to the media the NJC is no longer going consider this petition.
“There are different reasons why people give petitions to the media; one is to actually put the NJC under pressure to investigate those petitions because many times it is not all the petitions that get to the NJC that they investigate.
“I think it is not good for the fight against judicial corruption to rely on a provision like that. If I am a judge who has been complained against, the easiest way to frustrate such a petition, is to actually leak it to the media and then say that for that reason the NJC should terminate investigation on the petition. So, at the end of the day, you see that it defeats the fight against judicial corruption and it actually makes it easy for a judge to terminate an investigation on technical grounds.”
Otteh also expressed reservation over the new Judicial Ethics Committee.
He said, “I think what the NJC needs to do is to find a way to engage with anti-corruption agencies in a systematic way. Because the NJC is basically made up of people who don’t have the time and the power or the authority to begin to investigate corruption in the ramifications in which corruption occurs in the country. They don’t have the capacity to begin to go to banks and ask for statement of accounts of judges or to carry out surveillance on such accounts and so on. The NJC does not have that capacity. So, why doesn’t the NJC establish a relationship with the EFCC and the ICPC, so that they would have an in-house anti-corruption system?”
He also advised the NJC to pay attention to the symptoms of corruption in complaints of breach of ethics against judges.
He added, “Many times, the NJC deliberately misses the symptoms of corruption. Many of the judges that the NJC has retired, what the NJC basically focuses on is judicial misconduct but the NJC often closes its eyes to the motivation behind the misconduct. What has led a judge to behave so outrageously? These are the signals that show that something is wrong, but the NJC often chose not to find out what actually went wrong and because they don’t do that they don’t find out what motivated the misconduct.”
Also commenting, another lawyer, Mr. Femi Aina, warned the NJC not to create the impression that it was shielding corrupt judges with its new policy shutting out the media.
Aina said, “The NJC has to be very careful not to create an impression that they are covering up for corrupt judges. If any law enforcement agency is investigating a judge, the NJC needs to cooperate with that body. Anybody who wants to be a judge has to be of unquestionable integrity. From year 2000 till now, which is a period of about 16 years, the NJC received 1,808 complaints against judges in a country of 170 million people; out of that, only 82 judges were given warning or reprimand and only 12 were recommended for dismissal. It is a sign that something is wrong. That figure shows that, 1,126 were not dealt with one way or the other. The way the system is not fit for purpose.” Punch.ng.com