15 December 2017

Nigeria: The Dangers of a Self-Serving Judiciary

On Tuesday, the Court of Appeal, Lagos Division, struck out criminal charges filed by the Economic and Financial Crimes Commission (EFCC) against a serving judge of the Federal High Court, Justice Hyeladzira Nganjiwa. The judge had been arraigned on a 14-count charge before Justice Adedayo Akintoye of the Lagos State High Court. The judge was alleged to have received a total of $260,000 and N8.65 million (about N81,705,000) gratification from some lawyers to enrich himself. Trial had already started when an appeal was filed at the Court of Appeal. The appellate court panel presided over by Justice Adejumo Obaseki quashed the 14 charges against Justice Nganjiwa. The judge argued that the EFCC lacks the power to charge the judge to court based on the allegation made against him. The argument made was that by virtue of Section 158 of the 1999 Constitution, only the National Judicial Council (NJC) had the power to deal with the kind of allegations brought by the EFCC against a serving judge.

The implication of this judgment is that judges can continue to take bribes with reckless abandon to subvert the course of justice and no one can prosecute them. In other words, judges now have immunity against criminal prosecution. In addition, the National Judicial Council's administrative power in the appointment and administrative discipline of judicial officers is now elevated above criminal issues and if a judge commits murder today and the NJC does nothing, they get away with it. It is very strange that the administrative procedure for the discipline of judges is now elevated to the level of granting immunity to judges. The EFCC has said that it will file an appeal against the ruling of the Court of Appeal and it should. As their spokesperson, Wilson Uwujaren said: "The commission considers the ruling a dangerous precedent that has no basis in law because criminal trial takes precedence over administrative procedures and it is strange that the Court of Appeal wants to put the cart before the horse".

Over the past two years, there has been a drastic fall in the reputation of judges. Many were found to have vast fortunes in their bedrooms when their houses were raided. The amounts were so large that they could not have earned the amounts in any legitimate way. There has been an escalation of what Nigerians call jankara judgments when judges are paid bribes up front to determine the outcome of cases before them and one of the best things that has happened in the past year is the investigation of lawyers and judges involved in bribes for judgment. Clearly, the Appeal Court judgment is meant to return the judiciary to the status quo when those judges who have sold their conscience can continue to receive bribes with no fear of retribution.

Some lawyers in the country have commended the justices of the Lagos Division of the Court of Appeal claiming that the said judgment upholds the principle of separation of powers. Such lawyers clearly have no clue what the principle means. When a judge is charged for a criminal offence, the charge is filed in a court of law before another judge so the principle of judges doing their work is not violated in anyway. The fact the EFCC as a prosecutorial agency is part of the executive does not pose issues of interference because in our system, the role of prosecution is under the executive. The issue of independence of the three branches of government therefore does not arise.

Nigerian judges must begin to take decisive action to show that they are not self-serving in their actions. Already, the courts have been striking out cases filed against judges and the only subsequent action has been compulsory retirement of such judges by the NJC so that they can go and enjoy the riches they have corruptly acquired. I am aware that many lawyers have been concerned about the way in which the houses of some judges have been raided, arguing that judges should be treated with dignity. The principle of the rule of law is however that it is not the person but the act that is important. If judges cheapen themselves be receiving bribes and delivering jankara judgments, it is wrong to seek to protect them simply because they are judges. The reputational erosion of Nigerian judges has become so deep that radical action has been required to save the judiciary. The fight back mechanism by the judiciary to protect the corrupt within them is an unfolding tragedy that must stop. Corrupt judges have no integrity or reputation and must be treated as the criminals they have become.

I have always been concerned about the almost absolute immunity that the Nigerian Constitution provides for the President and State Governors. The way forward is to restrict immunity rather than to expand it to judicial officers.

We should all be concerned about the role of the National Judicial Council, which simply retires judges who have been guilty of corruption or Jankara judgments. What does sanction mean when we consider the fact that most of these judges have become stinking rich precisely because of their criminal behaviour. It is unacceptable that their only "punishment" is compulsory retirement. It is actually complicity because they are simply given all the time they need to enjoy the ill-gotten wealth. The NJC must be more forthright in coming out to deal with criminality for what it is. Finally, the Judiciary owes Nigerian citizens explanations and apologies for allowing the Judiciary run wild and an assurance that they will correct the scandalous practices currently taking place. This judgment simply sets us along the wrong path.

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