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The Judicature: Its Role, Monitoring and Fumigation—NJC Probe

--Cutting-Edge Analytics--


By: Franklin Otorofani
 Published March 15th, 2011

What is the Judicature? Simply put, it is the organic processes of the state that are concerned with the determination of rights and obligations of citizens and other legal entities within its jurisdiction the physical manifestations of which are comprised in courts of law, tribunals, administrative and judicial panels, and allied institutions related to the administration of Justice.

Let’s proceed to examine the place, role and powers of the Judicature in relation to other branches of government and institutions of state and the means by which Judicial Officers are subject to disciplinary actions in the light of the ongoing probe of certain Judicial Officers by the NJC over certain allegations of judicial improprieties and ethical atrophies. 

It is elementary knowledge acquired early in our individual educational careers back in High School especially for those who had the opportunity to read “Government” as a subject, that the Judiciary is the third arm of government coming after the Executive and the Legislature. And that’s why the Chief Justices of states, who are the heads of their respective Judicatures, are generally accorded number three or four position in “Order of Precedence,” in most countries including Nigeria, again coming after the heads of the Executive and the Legislative branches in that order. By virtue of this pecking order, therefore, the heads of the Executive and Legislative branches are recognized first before the head of the Judicial branch in that order, which incidentally is also the order of succession to the presidency in the event of abrupt vacancy.

For those who might want to know why the head of the Judicature is not number one or two in the pecking order, the reason is that the President, Prime Minister, Chancellor or other state leader by whatever designation identified, who is the Head of State or Government and Commander-in-Chief of its Armed Forces naturally occupies the number one position as the head of state or government or both in virtually all the nations of the world. Therefore, the only branch that the head of the Judicature might contend with for the pecking order is the legislative branch, which incidentally is the one vested with the powers of drawing up this pecking order in the first place in alliance with the Executive branch and therefore apt to place itself in the number two position thus making the head of the Judicature to occupy the default position of number three.

Besides, both heads of the Executive and Legislature are either directly or indirectly elected by the people; a situation that tends to confer popular democratic image and legitimacy on their positions, while the head of the Judicature is appointed by both the Legislature and the Executive both of which not only determine who gets what in the pecking order but also the budgets of all three branches of government. The Judicature is not represented at the table in these deliberations even in matters directly affecting it. And that is a huge political deficit. In other words, the pecking order is, to a large extent, arbitrary at least so far as between the Judicature and the Legislature even though all branches of government are co-equals and none of them is subordinated to the order in the discharge of their duties, at least theoretically.  Could the position of the head of the Judicature be significantly improved if he is directly elected by the people rather than appointed by the other arms of government? Most likely, but such proposition carries with it the danger of undue politicization of the head of the Judicature. There are jurisdictions where individual judges are directly elected by the people but not the head of the Judicature itself. The present arrangement would therefore seem alright. After all, of what practical use is the pecking order other than to inflate and massage egos of the beneficiaries of the order?  

With this hierarchical structure in place, however, some might be tempted to think that the judicial branch is condemned to playing not a second but a third or fourth fiddle in the national scheme of things. But hierarchical listing could be misleading and deceptive because it does not correctly reflect the relative powers and influence of those organs of state in the polity. Besides, as indicated earlier all three arms of government are co-equals and none is subordinated to the other even though men may place greater premium on the one or the other.

While the judicial arm is the last of the three arms in formal pecking order, it is by no means the least of them. On the contrary, it is primus inter-pares amongst the three arms of government. Now this might sound controversial but it is definitely the case when it is realized that judicial decrees are completely binding on all arms of government including the Judiciary itself, citizens, groups and institutions in the polity, and could in certain cases have extra-territorial effects as well, not otherwise applicable to other arms of government. The Judiciary has the final word in all matters both public and private that are brought before it. And the only way it could be sidelined by the other arms of state is not to bring matters or issues in question before it for adjudication or interpretation as the case may be. But that is next to impossible in a democracy which itself is like a piece of clay in the hands of the Judicature to be molded one shape at a time until it attains a more perfect or desirable form.

It is probably fair to hold in this regard that the development of our democratic culture and institutions depends to a very large extent on the authoritative pronouncements of the Judiciary as a whole on the several democratic issues brought before it. No other institution or organ of state could play this role. This is why its decrees on electoral agency, political parties and the government itself deserve to be accepted for what they are—part of the development process of our democracy rather than being seen as some undue interference by those affected. I have in mind here not the controversial judgments on election petitions but interlocutory orders on INEC and political parties that are being resisted and complained of by those affected. It must be appreciated that such orders are not perpetual but interim and meant to preserve the res in the matter and therefore liable to be set aside at the instance of the opposing parties when eventually put on notice in the normal course of the proceedings. On no account therefore must Judges be cowed or demonized by INEC and the political parties for performing their duties as required by law and the constitution however inconvenient this might be to their own agenda or timetable. All must understand that Judges are doing their job and that goes with the territory. As such, it should be accepted for what it is as important and indispensable part of the democratic process rather than seeking to change the rules through the back door.

Though the Legislature may make laws for the good governance of the nation that are binding on all subjects just like judicial decrees such laws are laws only to the extent that the Judiciary pronounces them to have been validly enacted. Otherwise they are not worth the pieces of paper on which they written and published. In other words, a Bill of the Legislative branch signed into an Act or Law by the president or governor of a state as the case may be, is not an Act or Law until it has been given the imprimatur of the Judicature when challenged in court. It takes the Judicature to put a final stamp of validity on it. Several Acts of Parliament have been thrown out the door by the Judiciary when challenged in court. A recent case that demonstrates the supremacy of the Judiciary occurred in United States with the nullification of the Obama administration’s Health Care Act which the Republicans have vowed to bring down through the courts. This is further demonstrated in Nigeria most recently in the judicial nullification of the First Amendment to the 1999 Constitution by the legislatures on the ground that it was not authenticated by the President of the Republic being an Act of the National Assembly in accordance with the Authentication Act.

In addition to that the Judiciary actually makes laws albeit interstitially and incrementally without at all appearing to do so when it gives its interpretation of judicial enactments. This much has been much recognized in modern jurisdictions and no longer debatable. Every single minute Judges are making and unmaking laws all over the world in their judgments and declarations one case at a time. The laws so made are not called Acts of parliament but bits of provisions carefully and methodically woven in through the crevices of existing laws.    

In that sense, therefore, we see the Judicature not only as the interpreter and applicator of the law but its maker as well, which further enhances its supremacy. We see the supremacy of the judiciary demonstrated time and again in the nullification of the election of a slew of governors in Rivers, Edo, Delta, Ondo, Osun, Ekiti and Anambra states to mention but a few, and its reversal of the actions of INEC and political parties. In point of fact, the nullification of the 1993 presidential election won by the late MKO Abiola was carried out through the court because not even the military, the then IBB-led Armed Forces Ruling Council (AFRC), could do the job of annulling the will of the people expressed through the ballots without the help of the Judicature using as it did Senator Arthur Nzeribe’s Association for Better Nigeria (ABN) as its litigant/contractors.

The powers of the Judicature are all-pervading like the powers of the gods and goddesses. For instance, the police may arrest, EFCC may prosecute and the government may bark all it wants, but it is the judiciary that supplies the bite to them all without which all of their hard labors would go in vain. Ask the head of the EFCC, Mrs. Farida Waziri about what the Judiciary is doing to her agency and she will regale you with tales of woes. Her hands have virtually been tied behind her back by the Judiciary.

Ask INEC chairman, Professor Attahiru Jega, the same question and you’ll almost see him in tears; in fact, he has reported the Judiciary to the Judiciary via the NJC to call its members to order! But the problem is that is tantamount to calling on the NJC to unduly interfere with ongoing proceedings in the various courts across the land which is an invitation to chaos and indeed illegal. The appellate system is there to take care of whatever complaints there are. Or, better still, ask the heads of the political parties the same question and you’ll see red in their eyes. But please DO NOT go near the Governor of Ogun State, Mr. Gbenga Daniel to ask him the same question. Don’t say I didn’t warn you if you’re lucky to come back alive and in one piece from OBJ kingdom, for the Governor had underrated the powers of the Judiciary in the hands of a determined, no nonsense OBJ. The old warrior sure knows how to teach the new recruits one or two lessons in judicial warfare even if they happen to be governors. And I hear that the Governor is already in retreat and now pleading for the forgiveness of the war-tested Abeokuta political warrior in an elaborate ceremony of penitence hosted by the generalissimo himself at his expansive Hilltop Mansion. Governor Daniel was vanquished through the deft deployment of judicial arsenal by the OBJ faction of the PDP in his state and the rest is history. His reported total humiliation by the people at Jonathan’s presidential rally in Abeokuta, Ogun state, tells it all. The Judiciary that he probably didn’t reckon with was his undoing as has indeed been the case in other such battles for political supremacy across the land. Those who ignore the Judiciary because it has no “Power of the Purse” do so at their own peril.

It goes without saying, therefore, that the Judiciary is at the center of our social universe—the Alpha and Omega in our national affairs. It is a strategic institution that needs to be carefully tended and nurtured. And watched too! And that is the crux of the matter, because left unwatched it could easily derail with Judges pursuing their individual agenda and politicians seeking to use them to obtain undue advantages for themselves or to undo their opponents and in the process wreak havoc on the polity. As a supposedly and presumably unbiased umpire from which alone it derives its awesome moral authority, the Judiciary projects and interjects itself right in the middle of the territory separating disputants or contestants as the case may be, to impose its decisions and decrees one way or another. Those on whom the Judiciary beamed her smiles have become presidents, governors, legislators, landowners and beneficiaries of some other fortunes, literarily overnight, while those it had frowned upon have hurriedly disappeared from the scene like some phantoms becoming bygone history literally overnight, though with some still kicking even while licking their judicially inflicted wounds.

From the above overarching, and quite frankly, sometimes overbearing profile of the Judiciary in all climes, comes the essentially philosophical question as to what imbues the Judiciary with such enormous godlike powers of life and death over fellow human beings and sister institutions in the polity? Why is the judiciary the ultimate terminator or grantor of life, ambitions, properties, political careers and actions in the polity, and no other institution?  Or, more to the point, why do members of society accept the verdicts and decrees of Judges without question as fait accompli and the end of the road in the pursuits of their rights and privileges with nowhere or no-one else to turn to even when they find themselves short-changed by Judicial Officers who are operating below board?

These are questions properly belonging to the realm of “Jurisprudence,” which is both the science and philosophy of law, and the matters it concerns itself with which form, if you like, the infrastructure of the legal normative order of which the formal rules themselves are but the superstructure, are beyond law itself. However, it is not within the realm of my present pre-occupations to go any farther along that route in a short discourse of this nature (many would not consider this short at all), as it would take an entire book to do justice to the subject and still not be done. But those who want detailed treatise on that subject are encouraged to read the classic by the English philosopher, Thomas Hobbes, the “Leviathan” which defines the state/citizen relationship in terms of “Social Contract” that formed the basis of modern social organization to understand the philosophical underpinnings of that relationship.

It would suffice to state, however, for the purpose of these proceedings that when citizens of a nation or geo-political entity freely and voluntarily give up their natural rights to self-help and agree to live together under a government constituted by men and operated under the rule of law, they have thereby yielded themselves up to the state to be governed by the state under the rule of law and so become subjects of law. All citizens are thereby equal before the law and pledge to obey the law and its decrees whether they are considered just or not in any material particular, for it is not in the place of the subjects of law to pick and choose which laws to obey and which to disobey on grounds of their perceived justness or lack thereof. 

The law then is their new sovereign that superintends, as it were, royally and majestically over all men and materials, both animate and inanimate within its territorial and subject jurisdictions. Please do not ask me when did you agree to yield yourself up to the state and be subject to the rule of law, because if you do the answer will be this: when you were born into the political entity having such social contract and thus became citizen of such entity as a minor, but did not give up your citizenship when you attained the age of majority to, in effect, annul the contract. Instead you chose to stay put and enjoy the protection of the state, whether real or imagined.

Don’t you tell me though that you were not aware of the contract in the first place both as a minor and as major not being schooled in such matters, because ignorance of the law is never an excuse otherwise every conceivable felon would claim ignorance of the law for committing crimes. It is the civic duty of every citizen to keep himself abreast of the law or consult those who understand the law before engaging in acts the legal implications of which he does not understand since he is not expected and cannot possibly know and understand everything legal or illegal all by himself.

Therefore, he will not be heard to plead ignorance of the law in allocution when charged with breaking the law. And, by the way, now that you know, you can still proceed to annul your citizenship and go live in the jungle outside the jurisdiction of any state, preferably in the no-man’s land such as Waziristan in Pakistan for example, amongst tribesmen where the rule of law has no place and self-help is the norm, and where man is thus condemned to live in a state of nature where life is short, brutish and nasty. Perhaps you could thrive in such a jungle, for no modern state is without a social contract. But for the rest of us in the civilized world the rule of the jungle has no place in the modern state and we have therefore all yielded ourselves up to the state to be governed under the rule of law in perpetuity and that social contract is equally binding on our offspring unless and until set aside by them upon attaining the age of majority as aforesaid—whoever does. Is it perfect? No. Must it be perfect? No, because nothing is perfect in the affairs of man. All that he strives for is approximation of perfection in varying degrees and that’s what distinguishes one man, group, or nation, as the case may be, from another in human affairs. 

Man has thus voluntarily made himself ‘slave’ to the law. Yes, we are all slaves of the law and Judges are our slave masters; from the lowly magistrates to the Supreme Court Justices. Thus while the administration of law spans several institutions, including the police, customs and excise, prisons and security agencies, the Judiciary is where it all comes together for finality. That explains in a nutshell not just the power of the Judiciary but the reason why people abide by its final decisions without recourse to self-help. Thus a man may lose his wife; a woman may lose her husband; a man, woman or nation may lose his office, money, property, land, territory, position, child or even life, to another, because a Judge or group of Judges sitting in some elevated platforms somewhere far removed from the public glare have so decreed. 

NOW, ANYONE who knows and appreciates the enormous powers vested in the Judicature in the hands of men to be exercised over their fellow men would readily agree, indeed demand that such powers should not be vested in and exercised by untrained, incompetent, corrupt, partisan, indolent or morally and ethically challenged individuals to wield over their fellow citizens and institutions in order to prevent calamitous outcomes and grave injustice being meted out to innocent but unfortunate citizens and institution who may find themselves trapped in the hands of such individuals. This has been the overarching goal of society for the Judicature.

 Unfortunately, human history is replete with evidences of such calamitous and atrocious miscarriages of justice in the hands of corrupt, incompetent, racist, clannish and partisan Judicial Officers, in multitude of cases involving the wrongful but blatant execution of the totally innocent. This is why the Judicature must be staffed with the best and brightest, the most hard working, competent and proven men and women of integrity to do what is essentially the work of God. Only those individuals who have demonstrated utmost integrity in their fields and whose sole motivation in life is the dispensation of justice without fear or favor should be recruited to serve on the bench because their services go beyond the mundane to the divine and the sublime. Those sitting in judgment over their fellow human beings are exercising godlike powers and must therefore be above board at all times, shunning extra-judicial influences wherever they may come from and that necessarily includes social restrictions in order to avoid getting themselves into awkward or embarrassing social situations that might compromise their judgments.

Judges are not meant to be seen or heard except in official or family gatherings. They’re not meant to ply the social circuits like ordinary men but live more or less like hermits to a greater or lesser extent. Do they have social live? Yes they do but in selected circles. What do they get in return for such personal deprivations and sacrifices? Respect and adulation bordering on awe; adequate protection, superb compensation package and conditions of service, and much more!

For the most part they are immune from politics and partisan warfare and personal attacks suffered by their peers in public service. Unlike other public office holders in the other two branches of government, Judges hold their offices for life and retire with full benefits. The goal is to shield and protect them from undue pressure from the public and vengeance from those who might seek to harm them because of unfavorable judgments. In certain climes such as the United States for example, Judges have been known to have been murdered in cold blood, some shot dead right in their courtrooms while holding hearings.

With these provisions in place why would a Judge indulge in corrupt practices on the bench? Why would he betray the trust of the people to do justice in cases before him? It goes back to the earlier postulation that human affairs are incapable of perfection no matter what. And for all their godlike dispositions Judges are first and foremost human beings too just like us ordinary mortals and therefore capable of being compromised and corrupted. Society recognizes this cardinal weakness of man as an imperfect being who cannot be left to his own devices and whose conduct must therefore be subjected to detailed rules in order to maintain certain minimum standards of official conduct throughout the realm. While such rules are by no means peculiar to Judicial Officers theirs are uniquely different from those of other cadres of public office holders. Therefore, in order to make certain that judicial appointees are not below but above board, their official duties are governed by clear set of rules. It is not just a matter of moral expectation but one of legal requirement for Judges to be above board at all times. And in cases where their personal or group interests are involved in matters before them they’re required to voluntarily disqualify themselves from sitting in judgment in such matters. 

In Nigeria as in many other countries, whether democratic or autocratic, Judicial Officers are made to subscribe to a special code of conduct which is termed “Judicial Code of Conduct”. The Preamble to this code captures vividly the concerns of society and her expectations regarding the character and disposition of Judicial Officers. Reproduced below for ease of reference is the Preamble as well as relevant provisions of the nation’s Code of Conduct for Judicial Officers:

Federal Republic of Nigeria

 

Code of Conduct for Judicial Officers

 

 

Preamble

 

Whereas an independent, strong, respected and respectable Judiciary is indispensable for the impartial administration of Justice in a democratic State:

 

And whereas 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.

 

And whereas the judicial duties of a Judicial Officer, which include all the duties of his office prescribed by law, take precedence over all his other activities:

 

And whereas it is desirable that standard of conduct which a Judicial Officer should observe be prescribed and published for the information of the Judicial Officer himself and the public in general so that the objectives set out in this preamble may be achieved:

 

Therefore, this Code of Conduct for Judicial Officers of the Federal Republic of Nigeria is hereby adopted.

 

The above represents the general expectations of society and the Judiciary itself from Judicial Officers in the discharge of their duties as well as the proper role of the Judiciary as a whole in democratic state. Following the Preamble are more detailed and comprehensive provisions (Rules) designed to guide and aid Judicial Officers inside and outside the court room. Again for ease of reference they are reproduced below:

Rules

 

In the performance of his duties, a Judicial Officer should observe the following rules;

 

 

Rule 1

 

A Judicial Officer should avoid impropriety and the appearance of impropriety in all his activities

 

1.     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.

 

2.     Social Relationships

 

(a)    A Judicial Officer must avoid social relationship that are improper or give rise to an appearance of impropriety, that cast doubt on the judicial officers ability to decide cases impartially, or that bring disrepute to the Judiciary.

 

(b)    A Judicial Officer shall not be a member of any society or organisation that practises invidious discrimination on the basis of race, sex, religion or ethnic origin or whose aims and objectives are incompatible with the functions or dignity of his office.

 

Rule 2

 

A -  Adjudicative Duties

 

1.     A judicial Officer should be true and faithful to the Constitution and the law, uphold the course of justice by abiding with the provisions of the Constitution and the law and should acquire and maintain professional competence.

 

2.     A Judicial Officer must avoid the abuse of the power of issuing interim injunctions, ex parte.

 

3.     In judicial proceedings, a Judicial Officer should maintain order and decorum.

 

4.     A Judicial Officer should be patient, dignified and courteous to accused persons and litigants, assessors, witnesses, legal practitioners and all others with whom he has to deal in his official capacity and should demand similar conduct of legal practitioners, his staff and others under his direction and control.

 

5.    (i)    A Judicial Officer should accord to every person who is legally interested in a proceeding, or his legal representative full right to be heard according to law, and except as authorised by law, neither initiate, encourage, nor consider ex-parte or other communications concerning a pending or impending proceeding.

 

(ii)    For the purpose of this sub-rule. An "ex-parte communication" is any communication involving less than all the parties who have 'a legal interest in the case, whether oral or written, about a pending or impending case, made to or initiated by the Judicial Officer presiding over the case.

 

6.     A Judicial Officer should promptly dispose of the business of Court. In order to achieve this, the Judicial Officer is required to devote adequate time to his duties, to be punctual in attending Court and expeditious in bringing to a conclusion and determining matters under submission. Unless ill or unable, for good reason, to come to court, a Judicial Officer must appear regularly for work, avoid tardiness, and maintain official hours of the court.

 

7.     A Judicial Officer shall endeavour that there is strict compliance with the provisions of the Constitution which require that a copy of judgement of the superior court of record be given to parties in the cause within seven days of the delivery thereof.

 

8.     A Judicial Officer should abstain from comment about a pending or impending proceeding in any court in this country, and should require similar abstention on the part of court personnel under his direction and control. This provision does not prohibit a Judicial Officer from making statements in the course of his official duties or from explaining for public or private information the procedure of the court provided such statements are not prejudicial to the integrity of the Judiciary and the administration of justice.

 

9.     A Judicial Officer shall be bound by professional secrecy with regard to his deliberations and to confidential information acquired in the course of his duties other than in public proceedings.

 

10.   A Judicial Officer should prohibit broadcasting, televising, recording of or photographing in the court room and areas immediately adjacent thereto during sessions of court or recesses between sessions in order to prevent the distortion or dramatisation of the proceedings by such recording or reproduction. A Judicial Officer may authorise:

 

(a)    the broadcasting, televising, recording or photographing of investigative and other proceedings;

(b)    the electronic recording and reproduction of appropriate court proceedings by means of recording that will not distract participants or impair the dignity of the proceedings.

 

 

B - Administrative Duties

 

1.     A Judicial Officer should diligently discharge his administrative duties, maintain professional competence in judicial administration and facilitate the performance of the administrative duties of other Judicial Officers and court officials.

 

2.     Judicial Officer should require his staff and other court officials under his direction and control to observe the standards of fidelity and diligence that apply to him.

 

3.      A Judicial Officer on becoming aware of reliable evidence of unethical or unprofessional conduct by another judicial officer or a legal practitioner should immediately take adequate steps to report the same to the appropriate body seized with disciplinary powers on the matter complained of.

 

4.     In the exercise of his administrative duties, a Judicial Officer should avoid nepotism and favouritism.

 

5.     A Judicial Officer must refrain from engaging in sexual harassment.

 

6.     A Judicial Officer shall not be a member of a tenders' board or engage in the award of contracts.

 

 

C - Disqualification

 

 

1.     A Judicial Officer should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to the instances where:

 

(a)    he has personal bias or prejudice concerning a party or personal knowledge of facts in dispute;

 

(b)    he served as a legal practitioner in the matter in controversy, or a legal practitioner with whom he previously practicsed law served during such association as a legal practitioner concerning the matter or the Judicial Officer or such legal practitioner has been a material witness in the matter;

 

(c)    he knows that he individually or as a Judicial Officer or his spouse or child, has a financial or any other interest that could be substantially affected by the outcome of the proceeding;

 

(d)    he or his spouse, or a person related to either of them or the spouse of such person;

 

(i)   is a party to the proceedings, or an officer, director or trustee of a party;

(ii)  is acting as a legal practitioner in the proceedings;

(iii) is known by the Judicial Officer to have an interest which could be substantially affected by the outcome of the proceedings.

(iv)  is to the Judicial Officers knowledge likely to be a material witness in the proceedings.

 

2.   A Judicial Officer should inform himself about his personal and fiduciary financial interests.

 

3.   For the purpose of this section -

 

(a)   "fiduciary" includes such relationships as executor, administrator, trustee guardian;

 

(b)    "financial interest" means ownership in a substantial manner of a legal or equitable interest or a relationship as director, adviser or other active participation in the affairs of a party except that;

 

(i)    ownership in a mutual or common investment fund which holds securities is not a financial interest in such securities unless the Judicial Officer participates in the management of the fund

 

(ii)   an office in an educational, religious, charitable or civil organisation is not a "financial interest" in securities held by the organisation;

 

(iii)   the proprietory interest of a policy holder in a mutual savings' society or similar proprietory interest, is a "financial interest" in the organisation only if the outcome of the proceedings could substantially affect the value of the interest;

 

(iv)  ownership of government securities is a "financial interest" in the issues only if the outcome of the proceedings could substantially affect the value of the securities. 

 

To complement the Judicial Code of Conduct is the Judicial Oath administered on all judicial appointees prior to their assumption of office as contained in the Sixth Schedule of the 1999 Constitution again reproduced below for ease of reference:

 

I, ...... do solemnly swear/affirm that I will be faithful and bear true allegiance to the Federal Republic of Nigeria; that as Chief Justice of Nigeria/Justice of the Supreme Court/President/Justice of the Court of Appeal/Chief Judge/Judge of the Federal High Corut/Chief Judge/Judge of the High Court of the Federal Capital Territory, Abuja/Chief Judge of ...... State/Judge of the High Court of ...... State/Grand Kadi/Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja/ Grand Kadi/Kadi of the Sharia Court of Appeal of .... State/President/Judge of the Customary Court of Appeal of the Federal Capital Territory, Abuja/President/Judge of the Customary Court of Appeal of ......... State. I will discharge my duties, and perform my functions honestly, to the best of my ability and faithfully in accordance with the Constitution of the Federal Republic of Nigeria and the law, that I will abide by the Code of Conduct contained in the Fifth Schedule to the Constitution of the Federal Republic of Nigeria; that I will not allow my personal interest to influence my official conduct or my official decisions; that I will preserve, protect and defend the Constitution of the Federal Republic of Nigeria

 

So help me God.”

 

Note: I have gone to these great lengths bring out these provisions buried in statute books and thus hidden from the public in order that members of the Nigerian public might better appreciate the issues we are dealing with and to understand that our laws are not lacking both in form and substance when public office holders like judicial officers decide on their own volition to undermine the integrity of their offices and institutions. Rather what is lacking, in my opinion, is the aggressive enforcement of these rules by those charged with the responsibilities of doing so, which might be due to ignorance on the part of members of the public or the unwillingness of their counsel to report erring Judicial Officers to the appropriate authority for investigation and punishment. 

Now, can we say in all honesty that the High Priests of the Nigerian Judiciary today have been true to their Judicial Code of Conduct and Oaths of Office when the NBA has revealed that over 80% of Nigerian Judicial officers are incompetent according to study carried out by the NJC itself? Can we truly say that of the Nigerian Judiciary when judges presiding over election petition cases are proven to have been engaged in telephone conversations and having social engagements with parties to the cases before them in flagrant violations of their Judicial Code of Conduct? Can we say that when the man who once probed the Judiciary during previous military regime, former Supreme Court Justice, Kayode Eso, has openly come out to proclaim the Judiciary as viscerally corrupt and stinking with judges becoming billionaires from ill-gotten wealth from parties in cases before them? Or can we, for that matter, say that when many Judges have in fact been dismissed from the bench on proven grounds of corruption and other judicial malpractices?

No, we cannot if we’re true to ourselves and our country. If we cannot honestly say that Judicial Officers in Nigeria, what is the basis then of swallowing the verdicts delivered by them, hook, line and sinker as the final word on the issues?  Put starkly, if judicial verdicts are now products of financial and other unwholesome inducements, why should any party to such cases accept such verdicts in the first place? Would it not be tantamount to acquiescing in judicial misconduct for any party to accept such verdicts as the final words on their cases? Surely, it would amount to such and no citizen should be seen to encourage or otherwise acquiesce in the corruption of public morals including the Almighty Judiciary of all institutions. Moreover, acquiescing in judicial misconduct robs the parties of their rights to equitable reliefs down the road because equity does not come to the aid of the indolent and the complicit or those who had condoned the very acts they are complaining about in the first place.

But the matter does not stop there. What should such parties caught in the mill of judicial corruption or improprieties do in the circumstances? Should they resort to self-help which they had given up earlier in the beginning in our social contract? Or, should they ignore the judgment altogether while seeking other extra-legal means of overturning it? Or should they simply walk away and let sleeping dogs lie leaving the matter in the hands of the Almighty Himself? These are no easy questions. But the long and short answer to these questions is that the aggrieved parties must use all lawful means to set aside such corruptly procured judgments because doing nothing and accepting the status quo is as noted above tantamount to upholding egregious illegality and wanton corruption of public morals. Such victims are not without remedies legal and/or equitable.

How do they go about doing so? Here is how: The law, knowing the weaknesses of men had long anticipated such scenarios and made adequate provisions to take care of them as and when occasions demand as we have now in Nigeria. Therefore, while the Judiciary might be final arbiter in all matters as aforesaid, the Judiciary itself has an inbuilt self-cleansing mechanism that subjects its erring members to severe sanctions including dismissals and the setting aside of corruptly procured judgments. And as noted earlier, many Judges have been summarily dismissed from service through the years even in the present dispensation far more than in any other organs of government due to petitions received, investigated and their findings acted upon by the relevant authorities as it’s again happening presently. However, this process must not be ad hoc but ongoing as a matter of routine because since men have learnt to shoot without missing the birds have learnt to fly without stopping, (My apology to Professor Chinua Achebe).

In the present cases before us the victims have not sleep on their rights to legal and equitable reliefs but have been admirably quite proactive in flooding the NJC with their petitions whether it is about election petition cases or about INEC and political parties complaining about allegedly conflicting ex-parte orders. However, the dismissal of erring Judicial Officers still leaves open the question as to what happens to their corruptly influenced judgments and decrees? Dismissing a Judge who had corruptly deprived a state governor, parliamentarian, local government chairman or landowner of his office or property and appointed another in his place as the case may be, is cold comfort to the individual who has suffered such grave injustice. What happens to his office or property is the next question that must necessarily be dealt with because that is the crux of the matter. It makes no difference dismissing the erring Judge while still losing his office or property to an impostor masquerading as an “elected” Governor, courtesy of a corrupt Judge or panel of Judges. That would do extreme violence to our democracy because judicial rigging of elections is no less pernicious and condemnable than rigging at the polling booths or collation centers.

The good news is that individual victim is not without a remedy because wherever there is a wrong committed there is a remedy available to the victim. The Supreme Court, Court of Appeal, High Courts and indeed all courts of records have at all times inherent powers to review corruptly procured judgments at the courts below them as part of their portfolios of both legal and equitable jurisdictions upon appeal by aggrieved parties from the decisions of the lower courts. And this is so whether or not the Court of Appeal or other court is the final arbiter as provided for in the Electoral Act, because corruption being, by all necessary intendments, a vitiating factor against such provisions of exclusive jurisdictions.

Paragraph 21 of the Third Schedule of the 1999 Constitution sets up the National Judicial Council to deal with such matters highlighted above. And it has as provided in subparagraphs 21 (b), (d) and (g) thereof, the powers amongst others to:

b) recommend to the President the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph and to exercise disciplinary control over such officers;

(d) recommend to the Governors the removal from the office of the judicial officers in sub-paragraph (c) of this paragraph, and to exercise disciplinary control over such officers.

(e) collect, control and disburse all moneys, capital and recurrent, for the judiciary;

(f) advise the President and Governors or any matter pertaining to the judiciary as may be referred to the Council by the President or the Governors;

(g) appoint, dismiss and exercise disciplinary control over members and staff of the Council;         

Where it is proved, for instance, that a judge had engaged in unethical practices in relation to cases before him such as socializing with litigants in such cases or their friends or relatives, that could be a ground for reversing the verdicts delivered by such a Judge or panel of Judges and remit the case back to court to be retried by a different Judge or panel of judges as the case may be.

Thus is not only when money was proved to have actually changed hands that such disciplinary actions could be taken against erring Judges as could be seen from the elaborate provisions of the Code of Conduct for Judicial Officers. Proven unethical conduct is enough to undo a Judge and his verdicts because in all cases justice must not only be done but seen to have been done. Therefore any appearance of extra-judicial influences or unethical conduct on the part of a Judicial Officer is enough to ground his judgments and decrees and throw him out the door. The test is both objective and subjective.

Would a litigant have faith in the verdict of a Judge in his case if it came to light that the Judge was caught socializing with his opponent in the case especially where the verdict went against him? No reasonable man in the position of the litigant would have faith in such a verdict. That, precisely, is what has been happening in the Nigerian Judiciary particularly with respect to the election petitions. Litigants who felt shortchanged by the Court of Appeal have been inundating the airwaves with their shrill cries of injustice, and have taken their cases to the Nigerian Judicial Council, NJC, for review. In response to the slew of petitions the NJC had queried a number of Judicial Officers implicated in such judicial misconduct, notably Justice Ayo Salami and his special band of Judges used for election petitions at the Court of Appeal and incidentally, the CJN himself, Justice Katsina-Alu, who, ordinarily, is the head of the NJC, but has admirably stepped aside to enable the body carry out proper investigation since he cannot be a judge in his own cause.

It would be recalled that Justice Salami had in his court affidavit accused the CJN of pressuring him not to sack the Governor of Sokoto State in the gubernatorial petition from that state. That suit arose out of his refusal to be promoted to the Supreme Court as recommended by the NJC of which he is part and parcel. It would be recalled also that while the CJN responded to the one query issued him by the NJC on account of Salami’s allegation Salami himself has snubbed all queries issued to him by the NJC. Please don’t ask me what that means because I don’t have the answers to that question. But don’t worry. The NJC will supply it later, hopefully, if all goes well with the probe.

Now, both of them will have to be probed together with other Justices of the Court of Appeal over their roles in the election petitions before the court. That the heads of the two highest courts in the nation are under probe is the best thing to have happened to our democracy, because if properly handled, the probe will hopefully reveal the rot in the judiciary and help to restore the people’s faith in their Judiciary once again. It is gratifying to note in this regard that the current probe will be far reaching and by no means limited to these cases but to all pending petitions before the NJC. This, as noted earlier, should have been the case from the beginning as a routine not ad hoc.

Why make a retired former head of the Court of Appeal the head of the probe panel to probe a sitting head of the Court of Appeal and his former colleagues with whom he had been closely associated in the past even if officially? That part is beyond me and I find it a little troubling. Ideally, the head and members of the probe panel should have been sourced from outside those two institutions since both the CJN and PCA are the subjects of this probe. Retired Chief Justices of the Federal and State High Courts should have been the ideal candidates for membership of the panel. This, as noted earlier, is to prevent the appearance of favoritism or institutional loyalties, which might color their disposition to the parties and issues at stake. The constitution of the panel shouldn’t leave any lingering doubts in the minds of members of the public as to their impartiality which is critical to their assignment. It is not a matter of proof but one of appearance of partiality as indicated in the Judicial Code of Conduct itself. No such reasonable doubts should be allowed to exist in the minds of reasonable members of the public. It is a matter for regret that this critical requirement appears not to have been taken into account in the constitution of the panel. Other than that I have no reason to doubt the personal integrity of the members of the probe panel.

To the members of the probe panel, however, must be told that Nigerians are watching their proceedings with keen interests given the hoopla that these matters have generated which goes to show how super-sensitive matters of justice are to all of humanity. They have been asked to help cleanse the Augean stable and not to desecrate the Temple of Justice any further by indulging in partisanship, favoritism or other form of unethical conduct the likes of which they have been asked to probe knowing as they do that the Judiciary is the bedrock of our democracy. The Nigerian nation has been blessed with a great and distinguished Judicature that is well respected all over the world, manned by great legal minds that are exported to other African nations to help develop their Judiciaries. That is a fact, not wishful thinking. The nation has first class legal minds that have brought her nothing but honor and pride and she will do well to keep it so. The house built by such giants as Taslim Elias, Chukwudi Oputa, Adetokumbo Ademola, Kayode Eso, Fatai Williams and other such judicial greats must not be allowed to be destroyed by some Lilliputians donning wigs and gowns.

It’s their burden duty, therefore, to help in the hardening of this bedrock rather than chipping at it from the edges as their unscrupulous colleagues have been accused of doing lately. This is because, the nation, the world’s largest black democracy deserves nothing less than a first class Judiciary and she will get nothing less. Isn’t time someone thought about the nation first before self, tribe, politics and other considerations? Well, that time is here. Nigerians do not care whether the CJN or PCA or both go down if found wanting at the end of the probe. Why should they? Let the facts speak for themselves when ferreted and placed in the public domain for public review for their approval or disapproval as the case may be, because the verdict of the people is the ultimate even though it may not have institutional backing.

But I tell you what, it could have Divine backing! That the NBA is on a parallel probe is also encouraging in at least beaming the searchlight on the Judiciary sufficiently to expose its corrupt innards even though I had expressed reservations in the past that the NBA probe might not have any bite to it not having the statutory powers to discipline Judicial officers like the NJC and since its heads are members of the NJC. But it sure could expose corruption in the Judiciary having members who are themselves active players in the corruption game, acting as they are as veritable conduits of ill-gotten wealth to Judicial officers.

These probe engines should be humming non-stop on all cylinders. And if I were the governor of Ekiti or Osun state I would be looking furtively over my shoulders by now to see what’s coming at me from the clouds. In an earlier post titled, “No Tears for Justice Ayo Salami” posted about a month ago, I had said the same exact thing in different words when Justice Salami was huffing and puffing over his elevation to the Supreme Court, which he had called “Greek Gift” and vowed to fight it. And he did fight it with a law suit, prompting the NJC to withdraw his name from the list of candidates recommended. His praise singers including Tinubu’s ACN and the usual Lagos crowd went to town salivating and claiming victory. But I knew better than to see that as victory because of the avalanche of petitions against him pending before the same NJC. Anyone who had his head sitting roundly on his neck would have known that Salami’s unsubstantiated but calculated outbursts against the CJN and by the extension the Supreme Court itself in the Sokoto case would not go unanswered given the very weighty allegations against him. It seemed to discerning members of the public that he was only fighting back with his political allies to intimidate the CJN as it’s their usual stock-in-trade.

Would the allegations against him be swept under the rug just because Salami was crying blue murder over his promotion? I didn’t think so and I saw his day of judgment coming. In fact, I saw his day of judgment coming a long, long time ago in a steady stream of write ups which my readers would readily testify to and would therefore not bother the reader to recount here. My Gosh, the day is here already, faster than I had thought possible in the Nigerian clime! Well, good to know somebody is doing his job in Nigeria after all. Things appear to be changing for the better, one institution at a time.

Could my prediction be coming to pass then? What do I fancy myself to be—a Nostradamus? Am I in the business of predictions? 0h, no! Please count me out. I’m just a poor analyst doing my own thing in my little corner across the great Atlantic Ocean reading and analyzing trends as best I can with no gift of the prophets. And if my predictions or “projections” happen to come to pass in the process as many have indeed become, including but not limited to the “projected” failure of the Northern Political Leaders Forum (NPLF) in its consensus gambit and the abandonment of Abubakar Atiku by his colleagues in that game when all is said and done; the adoption of Jonathan by Ndigbo and APGA Governor Peter Obi of Anambra State as well as the Yorubas in the South/West and the Middle-Belt; and take this, Jega’s failure at INEC, so be it. All of these were predicted, sorry projected, when Jonathan had barely indicated his interests in the presidential election in the face of PDP zoning arrangement that was once thought to have excluded him and more have come to pass. But I’m no prophet!

I take no joy in the misfortune of my fellow man. However, justice must be done in all cases of wrong doing and if justice demands that erring Judicial Officers be let go to sanitize the Judiciary so be it. Could Justice Salami join this growing list of fulfilled projections? It is increasingly appearing so. I had severally called for his probe over his role in the election petitions even before his stupefied victims had recovered from their shock and summoned up the courage to file their petitions against him. And this was so even before he owned up in an interview that he had a special judicial squad in the Court of Appeal to handle election cases on appeal and the discovery of his MTN phone records.  

But this is not about me. It is about the quality of justice dispensed by the Judiciary in Nigeria and the betrayal of the people’s trust. As a citizen, I see it as my civic responsibility to raise these issues at the time I did before everyone else and at time the beneficiaries of judicial improprieties and their army of supporters and well-wishers including the so-called Human Rights groups in Nigeria were applauding the judiciary to high heavens for upturning election results right, left and center on behalf of favored candidates ostensibly to recover their “stolen mandates.”

 Now we know better, don’t we, that all that glitters is not gold? And that’s why analysts like us do not go with the flow but take their time to dig beneath the surface and subject issues to critical analysis. Is it a difficult thing to do when the whole world is salivating over judicial victories against a despised ruling political party like the PDP? You bet it is. It is like swimming against the currents. But our labors have not altogether been in vain and our efforts have been well worth our time. Haven’t we been vindicated by these probes already? Where are those who were jubilating and lauding the Judiciary to high heavens for delivering corrupt judgments to their favorite candidates and political parties and calling for Maurice Iwu’s head on account of corruptly procured judgments against election results declared by INEC under him which they lampooned endlessly? We don’t seem to hear much from them these days and their camps have suddenly fallen into the silence of graveyards. Could those results be valid after all on proper judicial scrutiny by more competent and impartial panel of Judges? How are Messrs Tinubu and Femi Falana and the whole Lagos crowd reacting to these grave revelations against Justice Salami and his panel? We don’t hear from them either, which is strange. They owe a duty to themselves and the nation to speak out and speak out now before it’s too late, because this is not about partisan politics but the administration of justice in the nation. Shouldn’t they as “the conscience of the nation” be interested in these matters? I should think so.

We’re not doing this for the benefit of any particular political party or individuals but for posterity and the nation. What do I care who rules where provided he is up and doing delivering the goods for the people which he was elected? And that’s why I’m a fan of Governor Tunde Fasola of Lagos State though he belongs to Tinubu’s ACN that I find nauseating, reckless and a bundle of propaganda machine in the polity that is at the heart of what has been happening to the Judiciary lately. Party labels mean nothing to me in an ideologically bereft political clime. Any performing public office holder whether he/she be the president, governor, minister, commissioner or head of a government agency or corporation, is my hero or heroine as the case may be, regardless of his or her party affiliation. And I hope this is true also of every Nigerian as well, because party labels are a complete distraction in the Nigerian situation.   

If, as I and others have held that all the political parties in Nigeria are, in late Bola Ige’s words, the fingers of the same leprous hands, on what other objective standard do we prefer one party to another other than on individual performance of public office holders? Would it be on the basis of ethnicity, geographical region, personalities, qualifications, promises or antecedents? I understand these are matters for further deliberations and will therefore not proceed with them any further here. The probe has begun in earnest and the nation awaits its outcome within the next three months. Whatever comes out of this at the end of the day, one thing is clear: The Judiciary will never be the same again and the next batch of election petitions will be handled a little more professionally and competently with less extra-judicial influences from the outside. And perhaps it will afford the likes of Justice Ayo Salami who has refused promotion to a higher bench a chance to retire in shame or pride with his head bent down low or raised high rather than going to the Supreme Court to do more damage or good to our judicial heritage. He is already a tainted Judge and head of the Court of Appeal. I think he should go by the strength of his own confession and his MTN telephone conversation alone without more unless they are proven to be untrue.

I take no sides in these matters until the verdicts are out. Let the facts speak for themselves and the chips fall where they may. It’s the least my readers and members of the public would expect from an analyst of my caliber and I offer no more and no less.

From the stable of –Cutting-Edge Analytics—More than a blog—It’s a learning experience!

Franklin Otorofani is an Attorney and Public Affairs Analyst.

Contacts: mudiagaone@yahoo.com, http://franklinotorofani.wordpress.com/




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