 Published
September 5th, 2011
In all societies, primitive or modern, are to
be found certain vocations that are rightly treated as more
than just vocations, because their general bearings and
overall impacts on society go beyond the mundane and the
ordinary to the realm of the spiritual and, if you like,
partaking of the element of the divine. A listing of such
vocations would readily include but not limited to religious
priesthood, teaching, legal and medical practices, including
of course, nursing, and the judica,ture, to mention but a
few. However, such vocations demand special breed of humans
to tend the fields.
In particular, the judiciary is, for obvious
reasons, universally regarded as a sacred institution to be
manned only by men and women of unquestionable character and
proven integrity in order to maintain its sanctity. The
species of homo-sapiens entrusted with the role of
dispensing justice to all men in all climes, in all manners
of causes are accordingly held up as priests of oracles of
justice, and rightly so. As such, the judiciary, like
religious priesthood, is simply not the vocation for
hustlers or folks looking for material aggrandizement but
for those “called” or “motivated” to render pure and
untainted service to humanity.
Due to its unique position, therefore, no
effort is spared in making sure that judicial officers are
shielded from undue social influences within and outside the
courts in order to maintain their independence,
impartiality, fairness, and integrity in the discharge of
their official duties. Although they are not exactly hermits
or monks secluded in Tibetan monasteries, judicial officers
voluntarily submit themselves to necessary restrictions on
their social interactions as this is considered part of
their lifestyle that goes with the territory, so to speak.
Like reverend fathers who voluntarily forgo marriages, those
who choose to become judicial officers do so with the full
understanding and undertaking through their judicial oath of
office, that they would scrupulously observe these social
limitations imposed on their offices. In return, society
would go out of its way to make judges materially
comfortable.
The Nigerian society has indeed done much
even in the face of grinding poverty amongst the general
citizenry to make judges materially comfortable, including
living nearly all their lives in official quarters at public
expense with lots of perks designed to inoculate them
against corrupt influences from unscrupulous elements
actively seeking to pervert the course of justice. Unlike
other public officers, judges have their positions for keeps
for life till retirement and almost completely insulated
from job insecurity. Nigerians, therefore, expect the
highest possible ethical standards from judicial officers at
all times in the discharge of their official duties even in
an environment that is heavily infested with the plague of
corruption like Nigeria. A corrupt judiciary is a terrible
plague that blights a nation. To begin with society has
taken a leap of faith in entrusting its judicial affairs in
the hands of unelected officials who are not answerable to
the people like politicians. Therefore, the least that is
expected of them is to keep faith with their judicial vows.
After all, from whom much is given much is expected.
It is, therefore, most regrettable that
certain unscrupulous individuals who have no business being
judges, but would be better off as stock brokers,
moneychangers and profiteers, have found their ways into the
sacred institution in Nigeria where they have been wreaking
terrible havoc on justice. It is an open secret that the
Nigerian judiciary is terminally corrupt and long overdue
for a massive purge across the board. And the recent
“suspension” of the president of the Court of Appeal (PCA),
Justice Ayo Salami, should hopefully, be the beginning
rather than the end, of a carefully articulated action plan
designed to weed the entire field to herald a new era of
judicial probity and propriety in order to restore the
integrity of the nation’s judiciary and the confidence of
Nigerians in their judicial institutions. Anything short of
this would be merely whitewashing the walls of the citadel
of justice. Of what use to a nation is a judiciary loaded
with highly paid judges in whom the citizens have little or
no confidence? Why would an aggrieved person seeking justice
and redress elect to approach a cash and carry judiciary
except such an individual is out to purchase justice to
begin with, at all costs?
Generally speaking, when judges begin to
lobby to be appointed into election tribunals, that fact
alone, without more, should raise a red flag for the
authorities if they got their anti-corruption antenna up as
they ought to have done. And specifically, when a judge who
is presiding over several election petitions refuses to be
promoted away from that position to a higher judicial
office, that fact alone, without more, should raise a red
flag for the nation that something fishy is going on in the
inner sanctum of the judiciary that needs to be urgently
inquired into. There are always the tell-tale signs trailing
the conduct of corrupt judicial officers that could easily
be picked up by anti-graft agencies that are alive to their
responsibilities. It is regrettable to note that that both
situations are not hypothetical cases but real occurrences
in Nigeria involving particular individuals in the nation’s
judiciary.
At the heart of both situations is the
embattled Justice Ayo Salami, who until recently when
nemesis finally caught up with him was the head of the
largest superior judicial institution in Nigeria. The Court
of Appeal has greater presence in all the zones of the
federation and has the largest number of judicial officers
than the Supreme Court or the Federal High Court.
As president of the Court of Appeal (CA),
Justice Salami was vested with enormous powers and sacred
responsibility of, amongst others, presiding over election
petitions that came on appeal from local and state election
tribunals. As a measure and indication of its enormous
powers, decisions of the CA are final, with no appeals to
the Supreme Court (SC), save on questions of interpretation
of the law. CA’s findings of fact and law are, therefore,
conclusive and final. It follows therefore that miscarriages
of justice that might occur in the decisions of the CA are
not subject to higher judicial reviews as is usual in
ordinary cases. In the case of presidential election, the CA
is the court of first instance, where, by the law and the
constitution, the CA constitutes itself automatically as the
“Presidential Election Tribunal.” In this case, however,
there is an exception as its decisions are subject to review
by the SC on appeal. Invariably therefore, only petitions
arising from presidential elections make it up to the SC as
all other petitions arising from all other elections end
their journeys at the CA beyond which there are no appeals.
It was in his capacity as the PCA that
Justice Salami suddenly found himself as a judicial demigod
with the powers to annul the results of duly contested
elections, wantonly substituting winners with losers and
vice versa. And as he had himself confessed publicly in a
press interview, he constituted a judicial squad of “trusted
Justices” of the CA to execute his devilish agenda.
Concerned Nigerians watched helplessly albeit hopefully
while Salami’s judicial squad was literarily on rampage
overturning election results like a hurricane sweeping
through a flotilla of ships and boats in a Lagoon. In the
hands of Salami the CA was literarily transformed into the
judicial arm of a certain political party based in the
South/West whose arrogant emperor dined and wined with
Salami with direct line to the judge whose institution is
funded by the tax payer.
Anyone who had cared to critically examine
the judicial pronouncements of Justice Salami even without
the benefit of the findings of the NJC’s probe panel would
have had no difficulty in coming to the same conclusions
reached by that body. Thank goodness, yours truly was at the
forefront of the campaign, if you like, to subject Justice
Salami’s nefarious judicial activities, with particular
reference to the election petitions, to public scrutiny. And
the findings of the NJC that are now public knowledge
hardly warranting repetition here, have vindicated those of
us who had held all along that Justice Salami was an agent
of Bola Tinubu’s ACN as revealed by the telephone text
messages, prior social association, and all other
surrounding circumstances. And that helped to explain why
the man bluntly refused promotion to the SC where others in
similar positions would have jumped for joy for such
judicial elevation to the highest court in the land.
How would a judge seized with a matter engage
in private and unofficial communication and/or association
with a party in the matter behind the other party in
flagrant violation of his oath of office? If that is not
unethical, then there are no ethics in the Nigerian
judiciary. But we know that the Nigerian judiciary, like any
other institution, has a robust code of ethics prescribing
in great and meticulous details the dos and don’ts of
judicial officers. Judicial conduct is not left at the whim
and caprice of judicial officers but carefully laid down in
hallowed documents to serve as a guide for those engaged in
the dispensation of justice.
Permit me, therefore, to reproduce in extensu
the relevant provisions of the “Federal Republic of Nigeria
Code of Conduct for Judicial Officers” with the following
preamble which gives some explanation as to the necessity
and intendment of the provisions of the code:
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:
Rule 1 sub rules (1) and (2)(a) and (b) of
the Code state as follows:
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.
By the NJC’s findings Justice Salami was
violently and serially in breach of rule of rule 1, in
particular, sub rule (2) (a). The NJC probe panel found as a
fact that Justice Salami was in unofficial communication
with at least one of the parties to the election petitions
he was, in fact, presiding over at all times material to the
proceedings, thus confirming what many of us had suspected
all along regarding the unholy alliance between Justice
Salami and some vested interests, particularly the ACN lords
in the South/West. It comes as no surprise, therefore, that
the NJC would recommend Salami for dismissal from the bench,
for no lesser recommendation would be warranted by the
weight of evidence against Salami.
The question, therefore, is not whether
Justice Salami is guilty as charged, for that verdict
remains unassailable, but whether the NJC itself has the
authority to investigate and recommend disciplinary actions
against erring judicial officers brought before it for
investigation. It is interesting to note, in this regard,
that no one, including the Lagos crowd now shedding
crocodile tears over his suspension, had questioned the
authority of the NJC to probe the activities and allegations
leveled against Justice Salami and I should add, the CJN and
make appropriate recommendations to the appropriate
authority.
The fact that they are now crying wolf after
the fact is clear indication of their vested interests in
shielding from justice their foremost judicial patron in the
person of Justice Ayo Salami. And that, at the very least,
indicates a high degree of tolerance for corruption by those
involved in this show of shame, including the NBA and the
so-called civil rights groups. It exposes the loud cries
about corruption by the leadership of the NBA heretofore as
amounting to a shameful exercise in hypocrisy. I make bold
to state without equivocation the NBA or rather its present
leadership has been complicit in the corruption of the
judiciary. It is indeed a shame that the NBA
Now the NJC was established pursuant to
section 153(i) of the constitution alongside other federal
executive bodies. However, its powers to investigate and
recommend disciplinary actions against erring judicial
officers to the president, or governor of a state, as the
case may be, are enshrined in the Third Schedule Part 1 to
the constitution. Article 21 paragraphs (b), (c) and (d) of
Part 1 of the Schedule specifically states as follows:
21.
The National Judicial Council shall have power 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;
(c)
recommend to the Governors from among the list of persons
submitted to it by the State Judicial Service Commissions
persons for appointments to the offices of the Chief Judges
of the States and Judges of the High Courts of the States,
the Grand Kadis and Kadis of the Sharia Courts of Appeal of
the States and the Presidents and Judges of the Customary
Courts of Appeal of the States;
(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.
However,
certain individuals clearly advancing certain partisan
positions and interests have charged that Mr. President
acted illegally by summarily “removing” Justice Salami from
office without recourse to the Senate. In so holding such
individuals appear to have selectively sought in aid the
provisions of section 292(1)(a)(i) of the constitution,
which provide for one out of two of the conditions under
which a judicial officer may be removed from office thus:
292.
(1) A judicial officer shall
not be removed from his office or appointment before his age
of retirement except in the following circumstances -
(a)
in the case
of -
(i)
Chief
Justice of Nigeria, President of the Court of Appeal, Chief
Judge of the Federal High Court, Chief Judge of the High
Court of the Federal Capital Territory, Abuja, Grand Kadi of
the Sharia Court of Appeal of the Federal Capital Territory,
Abuja and President, Customary Court of Appeal of the
Federal Capital Territory, Abuja, by the President acting on
an address supported by two-thirds majority of the Senate.
This
provision clearly envisages a situation where there is “an
address supported by two-thirds majority in the senate
“Praying that he be so removed for his inability to
discharge the functions of his office or appointment
(whether arising from infirmity of mind or of body) or for
misconduct or contravention of the Code of Conduct.”
In this
case, it is not the president or the executive necessarily
initiating the removal of the judicial officer in question
but the senate itself, “praying” the president to act on its
address.
However,
there is another alternate situation where the National
Judicial Council itself could initiate the removal of any of
the judicial officers named in the section including the
president of CA. And this is contained in the same section
292(1) in sub- paragraph (b) thereof, which provides as
follows:
(b)
in any case, other than those to which paragraph (a) of this
subsection applies, by the President or, as the case may be,
the Governor acting on the recommendation of the National
Judicial Council that the judicial officer be so removed for
his inability to discharge the functions of his office or
appointment (whether arising from infirmity of mind or of
body) or for misconduct or contravention of the Code of
Conduct.
These are
alternative provisions to those in sub paragraph (a)(i)
earlier cited which require an address of the senate. The
senate has nothing to do with the alternate provisions of
paragraph (b) of section 292. Under these alternative
provisions, all the president or governor as the case may
be, needs is the recommendation of the National Judicial
Council. And if the president chooses to act on the
recommendation there is nothing the senate can do about it
because he did not purport to act on its address praying him
to remove the judge in question but on the recommendation of
the NJC. Nothing could be clearer than this distinction.
Since the senate did not pray the president to remove
Justice Salami, therefore, he had only the NJC’s
recommendation to back up his action in removing Salami from
office. This, without more, would completely settle the
issue as the authority of the president in summarily
removing Justice Salami from office.
Nowhere
is the concurrence of the senate required where the
president is acting on the recommendation of the NJC as
opposed to where an address by the senate praying him to
remove a particular judicial officer was presented to him.
Therefore, the notion that Mr. President had failed to
obtain the concurrence of the senate in removing Justice
Salami does not arise in the first place. It is therefore
untenable and wholly superfluous as the senate cannot be
invested with the powers it does not have under the clear
provisions of the constitution as above stated. Had Justice
Salami been summarily dismissed Jonathan would have been
within his constitutional powers so to do.
But did
Mr. President remove Justice Salami from office? Though Mr.
President unquestionably has the authority to remove a
federal judicial officer on the recommendation of the NJC,
nothing, factually speaking, in the announcement of the
disciplinary action taken against Salami by the presidency
contains the word “removed” or “dismissed” from office. On
the contrary, what the President did was to merely “suspend”
Justice Salami from office and “appointed” an interim
President of the CA in his place pending the resolution of
the issues highlighted in the findings of the NJC.
Let’s be
clear about this: there is a huge difference between
“removal” and “suspension” from office and Salami has only
been suspended not removed from office. Suspension is the
first step to removal but we are not there yet although it
is clear that is where it is all headed in due course. It is
beyond dispute that the president who has powers to remove
also has the powers to suspend. It is trite law that one who
has the power to appoint has the power to disappoint. In
fact, the president has the prerogative to either suspend or
outright remove an erring judicial officer on the
recommendation of the NJC and suspension is only a prelude
to removal. If he has chosen to do it one step at a time he
is absolutely within his rights to do so without let or
hindrance. And as the president has the right to remove so
also has he the right to appoint another in the place of the
removed judicial officer.
Section
238(4)
of the constitution provides thus:
238(4) If
the office of the President of the Court of appeal is
vacant, or if the person holding the office is for any
reason unable to perform the functions of the office, then
until a person has been appointed to and has assumed the
functions of that office, or until the person holding the
office has resumed those functions, the President shall
appoint the most senior Justice of the Court of Appeal to
perform those functions.
I want to
submit that this is precisely what Mr. President has done in
this case after “suspending” Justice Salami on the
“recommendation” of the NJC pursuant to the provisions of
section 292(1)(b) cited above. It is, therefore, clear from
the above constitutional provisions that both the NJC and
Mr. President acted appropriately respectively within their
constitutional authority, in recommending the removal of
Justice Salami to Mr. President and his consequential
suspension by the president. Salami himself was a member of
that body and most probably had in the past participated in
the disciplinary proceedings of that body that had resulted
in the disciplinary actions against judicial officers
brought before it.
Now, how is it that when it comes to Salami
heavens must fall? Is the NBA telling the world that there
are some sacred cows that are untouchable in the Nigerian
judiciary? The NBA should bury its head in the sand for
being an accessory after the fact and paying lip service to
the war against corruption in the judiciary. Words are
cheap. It is not enough for the NBA to talk the talk. It
must be ready to walk the walk when the time arrives to
match words with action. For quite sometime now NBA
presidents had been crying aloud about corruption in the
judiciary, but when the time came for action its current
leadership suddenly turned coat and turned the NBA into an
accessory of sorts after the fact to shield Salami from
disciplinary action.
It is unconscionable for the leadership of
the NBA to turn that reverred professional body into an
apologist of judicial rigging of election results for which
Justice Salami has by necessarily implication been suspended
from office. And worse still for the leadership of the NBA
to be seen as the legal department of a particular
South/West based political party with which Salami was
openly associated in the course of his official duties.
NBA’s activism need not be alligned with clearly partisan
political interests of a particular party. It would appear
that the leadership of the NBA does not know where to draw
the line between the body’s activism and that of opposition
political parties, which is serviceable only to their
parochial political interests rather than public or national
interests, which is the province of the NBA. This is most
regrettable and a fundamental disservice to the NBA itself
and the Nigerian nation in general. As for the so-called
civil rights groups, everyone knows their masters and
sponsors, and I don’t need to waste my time on them except
perhaps to state that by their fruits ye shall know them.
With that said one thing stands out in the
NBA/civil rights groups’ protests: they sound very much like
the ignorant crowds in Bayelsa and Delta states protesting
the prosecution of ex- governors Alami Alamieyesegha and
James Ibori for corruption. What a shame for a professional
body! I’m indeed ashamed and embarrassed by the conduct of
the president leadership of the NBA in protesting the
suspension of an ethically challenged judicial officer who
has willfully inflicted incalculable harm on the judiciary.
The fact that NBA’s so-called directive to its members to
boycott the swearing in ceremony of the new silks was
roundly ignored should serve as a useful lesson against its
totally misguided position and directive. And its threat not
to recognize the new SANs who attended the ceremony is, to
say the least, puerile, laughable and idiotic. The NBA
leadership is acting like the leadership of an opposition
political party that lost an election. This childish conduct
has exposed the NBA to public ridicule.
Suddenly those who couldn’t wait for
President Jonathan to kick out Maurice Iwu, former INEC
chairman, whose elections results were criminally judicially
annulled by Justice Salami as the NJC findings necessarily
imply, are accusing the president of acting “hastily” on the
recommendation of the NJC against Salami. Is this a case of
different strokes for different folks? Where do we lay down
the markers? Is it when Maurice Iwu is involved and take
them off when Ayo Salami steps in? Is NBA engaged in the
promotion of double standards in Nigeria or equal justice
for all?
These individuals who claim to be
“conscience of the nation” have no qualms promoting double
standards when their political interests are at stake. It is
certainly in their political interest to retain Salami on
the bench to continue to award them undeserved gubernatorial
and other electoral victories through the Court of Appeal.
They forgot that Nigeria is bigger than them, and whatever
goes around comes around. Suddenly the NBA/civil rights
groups are crying more than the bereaved. But the rest of
the good people of Nigeria can easily see through their
selfish, self-serving, and self-promoting grandstanding.
Pray, what is the business of the NBA in the
matter regarding disciplinary action handed down on a
serving judicial officer on grounds of judicial impropriety
on the clear recommendation of a competent body duly
constituted for that purpose in which the NBA itself was a
member? It is immoral and unethical for the NBA that was
duly represented and had fully participated in the
proceedings leading to the indictment of Justice Salami by
the NJC to now turn around to castigate the same NJC just
because its findings are at odds with NBA’s desire to
protect Salami. It calls to question NBA’s true role in the
NJC probe. Was it there to represent Salami or to find out
the truth about the allegations against him? If Justice
Salami was NBA’s client during the disciplinary proceedings,
it should come out to tell the world that it was
representing Salami and that should, at least, provide it
with the locus standi to rail against the decision of the
NJC and the president. To the best of my knowledge and
understanding NBA is nobody’s counsel, but simply a
professional body—clear and simple. Therefore, it is not in
a position to represent Tinubu’s ACN or for that matter,
Justice Salami, or in any way, shape or form defend their
political interests under any guise whatsoever, because
doing so would be ultra-vires its legal and professional
authority and therefore a gross violation of the laws of the
land.
My consolation though lies in the promptitude
and decisiveness with which Mr. President moved to deal with
this sore in the Nigerian judiciary. It shows a mark of
courage and the willingness to step on toes that had held
down our nation and turned her sacred institutions into
laughing stocks, locally and abroad.
All I would say in conclusion, however, is
that the NBA and the Lagos crowd can protest all they want
but the law is no respecter of persons. Isn’t it about time
somebody gave some content and meaning to that time honored
axiom? The Nigerian judiciary deserves better and should
therefore be rid of the many Salamis who are daily
desecrating the temple of justice. Good job, Mr. President.
Salami’s next stop should be Kirikiri prison to take the
place of Bode George. Besides all the cases he had put his
poisonous finger to should be subjected to thorough review
by a different panel of Justices in the CA, untainted by
him.
Ethically challenged Justice Ayo Salami,
President of Court of Appeal, is gone and gone for good.
Good riddance to bad rubbish. But who’s next to go? That is
the almighty question still waiting for answers from Mr.
President. He should not consider his job done by merely
removing one who might erroneously be thought to be just one
bad apple soiling the rest. The judiciary has not just one
bad apple soiling the rest but potentially hundreds of bad
apples soiling the rest of society in general. Therefore,
the job of the fumigation of the judiciary is far from done.
If anything, the nation is only getting started. And that is
a demand, Mr. President.
Franklin Otorofani is an attorney and public
affairs analyst
Contact:
mudiagaone@yahoo.com
|
