Who Gets To Judge The Judges?
On Monday December 11, 2017, the Lagos Division of the Court of Appeal, in a unanimous decision quashed the 14-count criminal charge over alleged bribery levelled against Justice Hyeladzira Nganjiwa before the Lagos State High court and ruled that the EFCC does not have the powers to investigate or prosecute serving judicial officers except where they had been first dismissed by the National Judicial Council (NJC).
According to the lead judgement delivered by Justice Adejumo Obaseki, which has already deepened judiciary independence, it is the NJC that has disciplinary control over judges as provided for in section 158 and paragraphs 21(b) and (d) of the third Schedule to the 1999 Constitution, as altered.
Access to Justice (A2J), a non-profit organisation had said that it was wrong to try erring judges in our courts where they have mastered the law, suggesting that erring judges should be made to face a higher standard than what obtain in the normal court of law (where they preside).
The EFCC had on June 23, 2017 arraigned the Nganjiwa for allegedly receiving a total of $260,000 and N8.65m gratification to enrich himself as a public official.
Nganjiwa pleaded not guilty and trial had already commenced before the trial judge, Justice Adedayo Akintoye.
The Appeal Court’s ruling followed an appeal filed by Nginjiwa, through his lawyer, Chief Robert Clarke (SAN), challenging Justice Akintoye’s jurisdiction to entertain the charges.
Prior to Justice Nganjiwa’s arraignment, Clarke had argued a preliminary objection challenging Justice Akintoye’s jurisdiction to hear the case.
The SAN had contended that by virtue of Section 158 of the 1999 Constitution, only the NJC had the power to deal with the kind of allegations brought by the EFCC against his client, a serving judge.
But the prosecuting counsel for the EFCC, Mr. Rotimi Oyedepo, disagreed and rather maintained that despite being a serving judge, Justice Nganjiwa did not have immunity against criminal prosecution.
In her ruling, Justice Akintoye upheld Oyedepo’s argument and dismissed Justice Nganjiwa’s objection.
The Court of Appeal, in its decision made a dichotomy in offences when the judge goes straight in for prosecution and when he has to pass via the NJC. But if it is permissible for judges to face trial without recourse to NJC when they commit murder, what’s the sanctity of shielding them and insisting on recourse to NJC when it borders on financial or core-duty malfeasance?
As expected, the verdict has drawn kudos and knocks, with some interesting posers made.
Human rights lawyer, Mike Ozekhome (SAN), said that the doctrine of separation of powers is a complete bar to the Executive riding slipshod on judges (belonging to the judiciary),in spite of the clear provisions of section 158 of the 1999 Constitution.
“We must all unite to rescue the brazenly buffeted judiciary from the despotic jackboots of the Executive, which traduces judges with untrammeled impunity. To do this, we need more of such creative judicial interventionist activism. Judges in Nigeria today are no longer safe, or free to deliver judgement without looking over their shoulders, for fear of rampaging Executive agencies that break down their houses in ungodly hours of the night.”
Judges, according to Ozekhome, now operate under fear, not wanting to deliver judgement against an intolerant Executive, even where the law is as clear as crystal.
Other lawyers believe that the EFCC had obtained the NJC permission before dragging Nganjiwa to Court.
Barrister Prince Yemi, on his part, disagreed with the judgment. “If this is allowed to stand it portends danger. The Federal Civil Service Commission (FCSC) that has disciplinary control over civil servants are to decide the fate of alleged corrupt civil servants one way or the other before he could be questioned and arraigned. That, I think, is the tenor of that judgement. He was not arrested for not delivering judgment within 90 days stipulated by law but for offence of gratification. I disagree with that judgment,” he said.
Lagos Lawyer, Femi Falana, on his part described the judgment as a protest judicial decision against the special treatment being accorded to certain personalities and criminal suspects by the Buhari administration in the prosecution of the war against corruption. Hence the court did not cite any decided case in Nigeria or any other common law country.
“In fact, the judgment had taken judicial notice of the decision of the President of the Republic to set up a panel of inquiry to probe a former Secretary to the Government of the Federation and a former Director-General of the National Intelligence Agency. As far as the court is concerned, indicted judges deserve to be treated, in like manner, before they can be properly prosecuted in a court of law. It is, however, doubtful if the Court of Appeal was aware of the fact that the EFCC had reported the judges on trial to the National Judicial Council which had endorsed the prosecution and placed the judges on suspension pending the conclusion of their trial.”
Falana, however, regretted that lawyers who have been celebrating the landmark judgment have not considered the fact that it has exposed our judges to greater danger. For instance, by asking that judges be disciplined by the NJC before they are prosecuted, the Court of Appeal has made it impossible to reinstate such judicial officers even if they are eventually discharged and acquitted.
Abiodun Owonikoko (SAN), on his part asked: “If Nganjuwa’s decision was wrong, why did the EFCC seek permission of NJC to initiate prosecution of the Judge? Why was this instrument of permission not exhibited before the trial court when preliminary objection was taken by Counsel to Nganjiwa, Robert Clarke?”
Owonikoko said further that “It was poor and arrogant advocacy to have kept that permit away from court and not use it to pursue alternative argument that, if leave of NJC was required, one was sought and obtained. In Ajilo v Savannah Bank, no less a legal giant than Chief FRA Williams of blessed memory fell into that sort of tunnel-vision advocacy trap. In arguing the import of failure to obtain prior consent to mortgage of title under section 22 of the Land Use Act . The SC lamented failure to canvass alternative remedies open to a mortgagee where legal mortgage is voided but was helpless to help the bank as those other equitable remedies were not sought. It took later cases like Adedeji v National Bank’s, Awojugbagbe Light Industries, etc to correct the oversight.”
“Hopefully, before we tear Adejumo JCA apart needlessly, the prosecution in other pending trials covered by the NJC prior permit would do well to quickly file additional proof of evidence to exhibit it and obviate any legitimate preliminary objection on that score by defense counsel. One can only pray they would not allow their egos get ahead of their better discretion. In the result, the impassioned attack and fault-finding with the decision has proven purely academic after all,” Abiodun Owonikoko (SAN), said.