The Nigerian judiciary is again on a collision course with the federal government following the declaration by the Appeal Court that the Economic and Financial Crimes Commission does not have statutory powers to investigate or prosecute serving judicial officers over corruption
- Olu Ojewale
IT was an unprecedented event in the anal of the Nigerian judiciary on Friday, October 7 and Saturday, October 8, 2016, when operatives of the Department of State Services, DSS, raided houses of eight and arrested them. Two Supreme Court justices and six high court federal and state justices were involved in the DSS operation.
The DSS had, in what it called a sting operation, arrested Sylvester Ngwuta and Inyang Okoro, both of the Supreme Court; Justice Mohammed Tsamiya, the suspended presiding justice of the Court of Appeal, Ilorin Division; Justice Kabiru Auta of the Kano State high court and Justice Adeniyi Ademola of the federal high court, Abuja.
Other arrested were Justice I. A. Umezulike, a former chief judge of Enugu State, and Muazu Pindiga of the federal high court, Gombe Division.
The action enraged the judiciary and caused national debate in the country. In its defence, the DSS said the judges were raided in a string operation and were arrested for their acts of corruption. But the judiciary led by Mahmud Mohammed, the then chief justice of the federation, kicked against the raid describing the operation as regrettable and unfortunate.
Since the incident only the case against Justice Ademola has been concluded, while others are still pending and no charge has been preferred against one of the justices.
That notwithstanding, the Appeal Court, on Monday, December 11, seemed to have thrown spanner in the works of the security operatives handling corruption cases against serving judges across the country. The Lagos division of the Court of Appeal on the day, ruled that the Economic and Financial Crimes Commission, EFCC, does not have statutory powers to investigate or prosecute serving judicial officers except where such individuals have first been dismissed or retired by the National Judicial Council, NJC, the body saddled with disciplining erring judges.
According to the appellate court, serving judicial officers can only be prosecuted for offences like murder, stealing and others if such offences were committed outside the discharge of their official duties. The court said that once the offence was allegedly committed in the discharge of their duties, they must first be tried by the NJC and dismissed or retired before the EFCC could investigate or prosecute them.
Justice Obaseki Adejumo, who delivered the lead judgment for the Court of Appeal, gave the ruling in respect of a suit brought by the EFCC against Hyeladzira Nganjiwa, a judge of the Bayelsa Division of the federal high court, who was accused of unlawfully receiving $260,000 and N8.6 million through his bank account between 2013 and 2015.
Nganjiwa had challenged the jurisdiction of the Lagos Division of the Lagos State high court to entertain the suit but was dismissed by the judge.
The Court of Appeal held that the high court of Lagos State lacked the jurisdiction to hear and determine the charge against the serving judicial officer and accordingly set aside the ruling of the lower court. It also upheld the preliminary objection filed by the appellant in the high court and dismissed the charge against him.
Incidentally, Nganjiwa was among the six judges recalled by the NJC last June after they had been earlier suspended following corruption allegations against them.
The decision to recall the judges was criticised by some prominent Nigerians including civil society groups who accused the NJC of attempting to paper over the cracks in the Nigerian judiciary.
But barely one week after he was recalled by the NJC, Nganjiwa was arraigned by the EFCC on a 14-count charge of corrupt enrichment and giving false information to an operative of the commission.
Reacting to the court decision, the EFCC vowed to appeal the judgement. “The Commission considers the ruling a dangerous precedent that has no basis in law and, is confident that the Supreme Court will upturn the judgment,” the anti-graft agency said in a statement by Wilson Uwujaren, its spokesperson.
“Criminal trial takes precedence over administrative procedures and it is strange that the Court of Appeal wants to put the cart before the horse. This is ridiculous. The appellate court simply wants to confer immunity on public officers from prosecution for corruption, it will not stand.”
Besides, it was discovered that the NJC did not object to the EFCC’s prosecution of allegedly corrupt judges, a correspondence between the Council and the anti-graft agency obtained by a newspaper has shown.
In a letter dated July 24, 2017, sent to the EFCC, the NJC acknowledged that it was aware that some judges suspected of corruption were being investigated by the anti-graft body, with charges already filed against a number of them.
Hence, the NJC informed the EFCC that its leadership had decided that the affected judges should cease to perform judicial duties pending the conclusion of the cases involving them.
The council stated that on June 1, 2017, it took a decision that judicial officers against whom charges had not been filed be cleared to resume their duties pending when the time they would charged.
In the same vein, the NJC also in its correspondence noted that under its rules, disciplinary actions could only be commenced against a judicial officer upon receipt of a petition against such a judicial officer, but that it had not received any against the judges in question.
Nevertheless, the council permitted the EFCC to proceed with the cases before, saying it had suspended those who had already been charged.
But it advised the anti-graft agency, to, in future, send petitions against judicial officers in respect of any matter of misconduct or corruption to enable it take appropriate disciplinary action.
According to the letter signed by Gambo Saleh, NJC secretary: “The EFCC will be at liberty thereafter to take appropriate legal action against such judicial officers.
“It is important to note that the threshold of proof of misconduct before the National Judicial Council Disciplinary Committee is much lower than the threshold of proof of criminal conduct. The Council may, therefore, be in position to discipline any erring judicial officer even where such conduct may not be criminal in nature.
“The Council is in the forefront of fighting corruption in the Judiciary and remains willing and ready to continue to collaborate with the EFCC and other investigative agencies to enable it efficiently discharge its function and rid the Judiciary of all erring and/or corrupt judicial officers.”
That notwithstanding, the appellate court decision seems to have again put the Nigerian judiciary in a precarious position as impressions appear to have created that the NJC is trying to frustrate the government’s fight against corruption.
A public commentator who simply gave his name as Gidi said: “(President Muhammadu) Buhari’s war on corruption is officially over in judiciary if the report of the ruling is true. The only way out is for National Assembly to fix the loopholes in the law that makes EFCC powerless when it comes to prosecuting corrupt judges.
“Again, this is the more reason we should pay close attention to institutional building as opposed to strong man mentality. I salute the judge that brought this case against EFCC, although he still has a corrupt case hanging on his neck, it is important for Nigerians to know where the weakness in our law exists and push lawmakers to fix it.”
In trying to build institutions and making things better, Gidi said the case would serve as precedent upon which other legal works would be built as well as providing a framework on which lawmakers could build on and amend existing laws that inadvertently grant immunity to sitting or retired judges.
“Now, the ball is in Buhari’s court. He needs to act swiftly by pushing for amendment to the law. EFCC reserves the right to appeal the case to Supreme Court, but Buhari shouldn’t wait for the whole legal drama to unfold. He should push National Assembly to fix the law and block loopholes,” Gidi.
But speaking from his perception of the law, Olisa Agbakoba, SAN, a former president of the Nigerian Bar Association, NBA, said in an interview that the Appeal Court justices were right by upholding the doctrine of separation of powers.
“The court has not said that judges cannot be prosecuted. It has only said that the National Judicial Council, NJC, is constitutionally authorised to make the decision that will lead to their prosecution.
“That is the correct position, I entirely agree with that decision. So, many Supreme Court cases back it up.
“Where a panel is set up to investigate a person constitutionally, that panel will have to first deal with the matter and recommend whatever punishment that is appropriate.
“The power to discipline a judge does not rest with the EFCC, the power to prosecute a judge rests with the EFCC upon the recommendation of the NJC.
“The judgment absolutely has implications for the separation of powers. The judgment confirms that executive interference in the judiciary will no longer be tolerated. That is what the judgment says,” he explained.
In his own perceptive, Ebun-Olu Adegboruwa, a lawyer in Lagos, said that the decision was sound in law and logic in helping to assert the much-desired independence and autonomy of the judiciary.
He noted that in recent times, judicial officers had been under mindless attacks by the executive, arising from the expressed disaffection for the third arm of the realm (judiciary) by the president, who is the head of the executive and had stated severally that the judiciary was his headache.
Adegboruwa said: “In the present dispensation, the executive arm has totally hijacked and captured the legislative and judicial arms, both of which have not been allowed to function effectively and independently as anticipated by the Constitution.
“It is therefore a welcome relief indeed that judicial officers will no longer be under the fear and tremor of intimidation of the executive in the discharge of their official duties.
“A judge should be free to deliver his judgment according to his conscience and according to the law without fear or favour, without affection or ill will.
“Under and by virtue of Paragraph 21(b) and (d) of the Third Schedule to the 1999 Constitution, the NJC is to exercise the power of disciplinary control over all judicial officers.
“Thus, where there is an allegation of corruption against a serving judicial officer, such should be tabled before the NJC first, as it is a matter arising from the discharge of official duties by the judge.
“Otherwise, judges will become liable to do the bidding of the executive once it is possible to just pick up a judge and lock him up whenever he delivers a judgment that is not favourable to the executive.”
He, however, warned that the judicial immunity should not be a blanket one, adding: “It should only be limited to matters involving the discharge of judicial duties.
“Consequently, a judge involved in the common crimes of murder, rape, etc, all committed outside the performance of his judicial duties, should still be held accountable in the normal course of criminal justice administration.
“So, I salute the rare courage of the justices of the Court of Appeal, who have taken this landmark step to free our nation from dictators and fascists in political garb and I commend the boldness of My Lords, for rescuing the judiciary from the choking harassment of the executive.
“Since time does not run against the prosecution of offences in law, the government can always commence a prosecution against any judicial officer found wanting after the NJC has concluded its own statutory role in the discipline of such judicial officer.”
Nevertheless, Wole Olanipekun, SAN, also a former president of the NBA, noted that the judgment had raised new issues and warned that caution should be exercised.
He noted that the judges were now being prosecuted through a procedure hitherto not known before in the annals of the judiciary, especially the raid of their respective residences by the security agencies.
Olanipekun, therefore, said: “The issue is recondite. It is novel. It has never happened before.
When you weigh all these against the clear provisions of the constitution as to the roles, the position, the jurisdiction, the powers of the NJC to employ, to discipline, to reprimand, to sanction, to suspend, to promote, to hire and fire judges, then you will see the more recondite nature of the issues involved.”
While commending the creativity of the lawyers of the appellant and agreeing with their methodologies, the senior lawyer said: “The law evolves, it is never static. But to my mind, it is an issue that will definitely get to the Supreme Court. Let the Supreme Court have the final say on it.”
He also commended the courage of the justices of the Court of Appeal, adding that the judgment was not something that could just be dismissed by the wave of the hand and therefore, appealed to both the prosecution and the defence to prepare to further argue the case at the Supreme Court.
“My advice is, let us keep our fingers crossed while we encourage the parties involved to prepare for fireworks at the Supreme Court,” he said.
Also trying to explain the logic of the court decision, Iniobong Uko, a lawyer based in Uyo, Akwa Ibom State, said: “The situation in the law is not an immunity from prosecution for judges, it is simply that before a person (who use to be a judge) can be prosecuted for offences purportedly committed in the course of his work as a judge, the NJC should first investigate and sit over the matter and make a finding whether he is liable or not, and where he is liable, he is stripped of his title as a judge and handed over for prosecution in the regular courts. I think this is good and proper law.
“If there are some weaknesses in the punishments to be meted out by the NJC, then the law may be reviewed to give more teeth and bite to the punishments to be meted out by the NJC.”
Besides, he said it would not augur well for our judicial sanctity to jack a serving judge and place him in the dock in a criminal court to face a criminal charge.
Uko, who argued that a criminal charge was not synonymous with a declaration of guilt, therefore, warned that in a situation where the accused “judge” was discharged and acquitted at the end of the day, much damage would have already been done to his reputation and that of the entire judiciary.
Indeed, Justice Ibrahim Auta, a former chief judge of the federal high court, would want Nigerians to see the judiciary, especially the judges as victims of corruption allegations in the country.
Auta, who made the assertion during the conferment of Award of Excellence on him by the Society Watch Media Ltd, SWML, an NGO, on Wednesday, December 13, in Abuja, said that because judges were barred from speaking to the press, most of the corruption allegations levelled against them often appeared to be true.
Besides, he said that corruption perceptions about judges were becoming acceptable because the people believed whatever they read in the media without verification. Arguing further, he said that there was no country and sector devoid of corruption, adding that it was only the magnitude of the practice that differed.
But whether the judiciary will eventually be seen as a partner in the fight against corruption or foe at the end of court fireworks is left to be seen.
– Dec. 15, 2017 @ 13:52 GMT