On many occasions, the public has heard of allegations of corruption on the Bench, yet no serving or retired judge has ever been brought to book. Are judges above the law? In several instances, those accused of wrong-doing are either retired or dismissed without being made to face trial. Should the existing mode of punishing erring judges be sustained or should an independent regulatory body be set up? Precious Igbonwelundu asks.
• Should a separate body be set up to discipline judges?
Will a corrupt judge ever be jailed for corruption? This is a tall dream because of the belief that judges and their ilk are sacred cows. For many observers, that day may never come. Despite allegations of graft on the Bench, no judge has ever been brought to book.
The National Judicial Council (NJC), which is charged with disciplining judges, basically retires or dismisses those found guilty of unethical or corrupt practices. Should such judicial officers not be handed over to the anti-corruption agencies for prosecution?
Former Supreme Court Justice the late Kayode Eso decried corruption on the Bench. He even pointed fingers at judges who served on Election Petitions Tribunals, saying most of them had questionable wealth.
In the past, judicial officers were held in high esteem, viewed as individuals without fault given the important role they play, but such high regard for them seems to have waned.
What is the way out? Former Chief Justice of Nigeria (CJN) Justice Dahiru Musdapher proposed the creation of a separate institution, different from the NJC, to be vested with the powers to discipline erring judges.
He said such body should be responsible for investigating allegations of judicial misconducts and corruption and enforcing the code of conduct for judicial officers, discipline and removal.
His argument is that the NJC may not have the will to handover corrupt judges to anti-graft agencies for prosecution.
To him, it appears that in a bid to protect the sanctity of the judiciary, otherwise honest judges are driven to cover the misdeeds of their crooked colleagues.
The need for incorruptible judges cannot be over-emphasised. It is said that a judge who is honest 99 per cent of the time is useless to the people, as his potential for corruption could claim an innocent life.
For some lawyers, having an external, independent, unbiased body to conduct inquiry into allegations of misdeeds on the Bench is the only solution. For others, the existing structure should remain.
Analysts believe the only way to make a judge answer for his criminal behaviour is to bring criminal charges against him. The ultimate irony is that the only way to bring criminal charges against a bad judge is to ask another judge for permission to pursue the bad judge, which may never happen.
That corrupt minds occupy the nation’s Bench became public when the panel headed by Eso, came out with a damning report of massive corruption among judicial officers and recommended, among others, the sacking of some of them.
The findings and recommendations of the Eso Panel partly informed the establishment of the National Judicial Council (NJC) by virtue of the provision of Section 153 of the Constitution. Section 20 of the 3rd schedule of the Constitution identifies its members, while Section 21 of the schedule spells out its powers.
Among its powers, aside policy making and administration of the judiciary, include the appointment, dismissal and the exercise of disciplinary control over members and staff. It is also empowered to investigate allegations of unethical conducts against judges, and if found wanting, recommend such judge’s removal to either the president or governor.
The existence of this body, notwithstanding, allegations of corruption and abuse of office against judges have persisted, with many describing judicial officers in uncomplimentary terms. Alarmed by reported cases of unethical conducts by judges at various electoral tribunals, Justice Eso was once reported to have described the role of some judges handling election petitions as “mind shattering”, referring to them as “billionaire judges.”
The public disagreement between the suspended President of the Court of Appeal, Justice Isa Ayo Salami and former Chief Justice of Nigeria (CJN) on issues bordering on corruption and abuse of process served to further lower the confidence of members of the public on the ability of the judges to dispense justice in its actual sense.
This state of affairs has led to various suggestions on how corruption and other vices could be tamed on the Bench.
Some have suggested the creation of an independent body to be saddled with the responsibility of ensuring probity and punishing unethical conducts among judges and lawyers. Others called for criminal prosecution of erring judges as against the current practice of quiet dismissal. There is also the suggestion that the Constitution should be amended to give the NJC prosecutorial powers.
Those who seek a separate body outside the NJC suggest that it should be left with administrative powers, which include managing funds for that arm of government, while the task of maintaining probity, investigating allegations of unethical conducts and punishment should be the concern of a separate body.
They argued that the current composition of the NJC makes it difficult for the it to conduct independent and thorough investigation in most cases. They suggested that a retired senior judge, with record of probity and accountability, should head such a body, with other people with similar attributes, appointed as members.
Those in favour of prosecution of erring judges argued that such a measure was sufficient to discourage corruption on the Bench. They said the fear of trial inb an open court like common criminals was capable of serving as deterrent to would-be corrupt judges.
To them, the current practice where judges found wanting are only quietly eased out of the system while others face open court trial is unjust. They argued that judges who are found wanting should be tried like officers of other arms of government.
Musdapher, in recommending the establishment of an independent body, said: “Please consider that thoroughly investigating petitions and allegations of impropriety against judicial officers as well as contraventions of the judicial code of conduct is too cumbersome for the NJC when viewed against the other responsibilities of the council.
“Besides an independent institution with adequate statutory safeguards may be better positioned to deal with the issues of discipline and removal as opposed to an institution that is largely managed by those it is supposed to regulate.
“I strongly believe that the creation of such an institution is the only way to properly focus on the problem of judicial corruption in Nigeria as it has been adopted in several common law jurisdictions.
‘‘I hope this proposal is given due consideration and perhaps made a subject of discussion and debate to exhaustively uncover its merits or demerits as a means to demonstrate a firm commitment to fighting judicial corruption and positively restore confidence in our courts,” he said.
Renowned law expert Prof. Akin Oyebode said the NJC has not lived up to its establishing principle. He suggested that its functions should be taken over by the Judicial Service Commission (JSC) at the state and federal levels.
He opposed the creation of an independent body but recommended that the JSC, which is already a creation of the law, should be allowed to function like the governing councils of universities.
He also suggested that the JSC, in assuming the roles of regulating the conditions of service of judicial officers, their appointment and disappointment, the CJN and all serving judges should be removed from the body.
‘‘The office of the Chief Justice should be completely separated from this body (JSC) so that there will be no compromise. The commission should be headed by a retired judge with proven integrity who has been found incorruptible because you cannot give what you do not have. He or she knows the values and all that is expected of a judicial officer.
“The whole idea of the independence of the judiciary is the capability of that institution to sanitise its ranks. But with this observation, it seems the Nigerian judiciary is bereft of the ability to ensure propriety,” he said.
He objected to the idea of public prosecution of erring judges, citing the practice in the United States as an example. “In America for instance, it is by process of impeachment.
“Such an officer is brought before his peers to establish his guilt or innocence on any allegation. But many judges do not even wait for that process to be instituted as they throw in the towel. They resign in disgrace and live thereafter in ignominy.
“We cannot fault the NJC for not arraigning corrupt judges because the NJC is not a trial court, neither is it its responsibility. The only thing it can do is recommend to the appointing authority for the dismissal of such officers.
“Even in other climes, it is unusual for a judge to be tried, sentenced and incarcerated. Most times, to preserve the sanctity of the judiciary, they are quietly dismissed,” Oyebode said.
A Senior Advocate, Dele Belgore, said internal cleansing was necessary to preserve public trust and confidence in the judiciary. He is not against the establishment of a separate body outside the NJC.
He said whether that cleansing is done through the NJC or an independent body does not, really matter.
Belgore argued that what matters is that those given the responsibility of cleaning the sector must discharge it effectively and have zero tolerance for corruption and at the same time, must be careful not to fall to witch-hunts, flimsy and unsubstantiated allegations.
“The treatment of corruption in the judiciary is akin to a family hereditary disease – you don’t want to expose the family and at the same time you want to break the jinx of the disease and not pass it onto the next generation.
‘‘The public must have confidence in the judiciary and every allegation of corruption erodes that confidence. One rotten apple sadly spoils the pack. Therefore to preserve the integrity of good and upright judicial officers and the system as a whole internal cleansing is preferable to an open and public exposure of judicial misdeeds,” he said.
Another Senior Advocate, Dele Adesina argued that the NJC has lived up to its constitutional responsibility. He contended that the judiciary should be allowed to regulate itself. He objected to setting up of an independent regulatory body
‘‘Nobody is above the law, not even the CJN. It is no respecter of persons and that is the whole essence of the rule of law more particularly in the judiciary which is constitutionally saddled with the responsibility of interpreting the law.
It is on record that a judge has been arraigned for murder in this country although he was discharged and acquitted at the end of the day that is to show that no one is above the law.
‘‘It is also true that the NJC had fired some judges and this has been done for several reasons including but not limited to corruption. When judges are dismissed on grounds of corruption that is the farthest the NJC can go because it is the limits of its statutory duty to enforce discipline and code of ethics.
“It is the job of the relevant security agencies to arraign any person who has been found to have committed any crime including judges. We are running a constitutional democracy with the fundamental concept of separation of powers and so the executive has the constitutional powers to enforce the law, Adesina said.
Joseph Nwobike (SAN) contended that the only reason why corruption persists in the justice system is the lack of political will and commitment on the part of those saddled with the responsibility of ensuring probity on the bench to address the situation.
‘‘I do not believe that there is any substantive or procedural challenge preventing the existing bodies regulating the conduct of judicial officers in Nigeria. I also do not believe more institutions are required to tackle corruption and corruption related misconduct amongst judges.
‘‘What, to me, appears to be lacking is the political will and commitment to address the menace. To create more institutions as is being suggested, will only result in enlarging the corruption space in Nigeria,‘’ Nwobike said.
Rights activist, Femi Falana (SAN) argued that the NJC is duty bound to refer cases of corruption against judges to the anti-graft agencies.
He likened NJC’s handling of cases of corrupt judges to the police settling serious criminal offences at the station, which he said were illegal.
“On a daily bases, serious criminal offences are resolved illegally in police stations. That is what the NJC does with corrupt judges.
“It is part of the culture of impunity that has been institutionalised in Nigeria.
Although it is not the business of the NJC to prosecute corrupt judges, it is duty-bound to refer such cases to the anti-graft agencies for prosecution.
“Even the Nigerian Bar Association has not deemed it fit to have lawyers who have been convicted disrobed,” Falana said.
