The Nation Newspaper

Tag: Judicial

  • Judicial activism in Africa

    The expression “judicial activism” is from contemporary American politics where legal interpretation of its constitution can have ramifying and fundamental impact on its society and politics. For example after years of segregation, the American Supreme Court in a landmark decision came out with the judgement that there cannot be separate and equal education as it concerns black and white schools maintained at public expense. It was this kind of decision that forced public schools to desegregate. Although during the colonial phase of Nigerian history, there was a colour bar in hospitals and housing as well as salaries, this remained largely legally unchallenged. There were European/white hospitals and blacks as recent as the 1950s could not lodge in Broad Street Hotel in Lagos and Hill Station Hotel in Jos. There were different salaries for African and European workers doing the same thing. The various GRA (Government Reserved Areas) where only whites lived, ostensibly to shield them from African diseases, ensured physical separation of races. In Kenya, the Congo, central and Southern Africa where there were white settlers, separation or apartheid was the practice.  This was also the case in Algeria where close to three million French men had settled. There is no legal record  saying this  separation even though unacceptable, was challenged systematically until the 1950s when  the wind of change was gathering pace and becoming an hurricane as remarked by Sir Harold Macmillan a British Prime Minister of the time.

    The point I am making is that political change took place as a result of direct action or what Kwame Nkrumah called “positive action”, by nationalists either through political protests and or armed pressure. In other words, one can say that the idea of judicial activism is alien to African colonial history and even to contemporary politics until recently.

    The recent decision to annul and invalidate the presidential election in Kenya won by President Uhuru Kenyatta has drawn attention to the role of the judiciary in Africa. It should be recalled that this is the second time Uhuru Kenyatta and Raila Odinga are squaring against each other politically. In 2013 Kenyatta won a highly and hotly contested election which eventually eventuated into violence when Odinga rejected the result. There is no difference ideologically between the two of them. The National Super Alliance (NASA) led by  Raila Odinga and the Jubilee Party, a reincarnation of the old Kenya National African Union (KANU) led by Uhuru  Kenyatta are  centrist parties politically speaking. Their difference like in most African countries is rooted in ethnic difference between Odinga, a Luo and Kenyatta, a Kikuyu. These are the two major ethnic groups in the country. Uhuru is the son of the founding President of Kenya, Mzee Jomo Kenyatta who along with Raila’s father Jaramogi Oginga Odinga, formed the Kenya African National Union (KANU) and Raila’s father was made the Vice President. They eventually fell out because after some years, Oginga Odinga also wanted to be president. Kenya to begin with would never have been independent but for the rebellion of the Kikuyu who bore the burden of British settlerism following the expropriation of their land for British settlers in the 1920s after the First World. The Mau Mau ((Kenya Land and Freedom army or KFLA 1952 -1960) uprising forced the British to realize that Kenya was not going to be a settler colony. Without the moderating hand of Jomo Kenyatta, an anthropologist and author of a scholarly book, “Facing Mount Kenya” there would have been more bloodshed in Kenya before the British finally conceded independence to Kenya under Jomo Kenyatta.  Jomo Kenyatta was President from 1964 to 1978 when he died. He was succeeded by Daniel Arap Moi a member of a small Kalenjin tribe who was Jomo Kenyatta’s Vice President and he remained in power till 2013. He was succeeded by a Kikuyu Mwai Kibaki who remained in power till 2013 and again replaced by another Kikuyu the younger Kenyatta in 2013. In all this musical political chairs, the Luo the second largest ethnic group has always been worsted in the contest for power. Any unnecessarily ambitious Luo during the time of Kenyatta and after was not tolerated and for example the ambitious, affable and handsome young minister, Tom Mboya a Luo was mysteriously assassinated on July 5, 1969 within the first few years of independence and this sent a warning to anyone who might raise his hand against the dominant force of the ethnic status quo.

    This is the background against which to see the current struggle for power in Kenya between the Kikuyu and the Luo. Politics in Africa is a matter of numbers and the Kikuyus have the numbers. When in August, the 72-year old Raila Odinga lost to 62-year old Uhuru Kenyatta in a presidential election judged by international observers coming from the West, the Commonwealth and African Union, it was felt Kenya had overcome its monster of disputed elections. But Odinga protested the outcome and rather than asking his supporters to go on the streets, he went to the Supreme Court to challenge the validity of the election process.  Surprisingly, the court in a split decision along ethnic lines invalidated the election and called for another election within 60 days.

    This outcome has been welcomed by the opposition. The president accepted the judgement but deprecated it. He even called members of the judiciary “crooks” who had been bought over by “Jews and homosexuals”. This is really an unfortunate development. Raila Odinga while welcoming the judgement called unrealistically for the dismissal of the Electoral and Boundaries Commission. The cancelled election cost Kenya $500 million. This is a lot of money in a poor country. The logistics of holding another election in 60 days involving printing of new ballot papers remain daunting. It is therefore almost axiomatic that the result of a new election may not be different from the old one.

    The question to ask is whether the judicial decision has been worth it and whether it has met the yardstick of legal wisdom and sagacity in view of the fact that the decision was based not on grounds of actual rigging and intent of rigging but on the grounds of lack of compliance with transmission of results electronically from wards to collating centre. It will be a tragedy if the re-run were to terminate in violence costing thousands of lives as it was in 2013.

    Some commentators have commended the judicial decision in Kenya and asked other African courts to learn from it. What happened in Kenya is not new to us in Nigeria. Results of elections have been changed at local, gubernatorial, House of Representative and senatorial levels but not at the presidential levels.  In the United States, Al Gore went to court to dispute the narrow win of George Bush in 2000 presidential election after the political shenanigans in Florida where Bush’s younger brother was governor but in the interest of the country and democracy, he withdrew the challenge so that the USA was not plunged into a constitutional crisis.

    In 1999 in a similar situation and to hasten the departure of the military from power, Chief Olu Falae withdrew his case in the Supreme Court challenging Olusegun Obasanjo’s election. In 2003, 2007 and 2011, President Muhammadu Buhari challenged unsuccessfully the elections of his opponents. Even if there were grounds for annulling the elections of his opponents, the Supreme Court upheld the outcome of the elections. These decisions were the right and sagacious decisions if only to save our country from political uncertainty and violence.

    Legal purists may dispute the wisdom of political imperative in judicial decisions at the highest level of a country but the overall interest of the country must always prevail. This is not a call for electoral brigandage and deliberate crime but when as in the case of Kenya, no such grounds were established, it would have been prudent for the judiciary to make haste slowly. This is particularly the case in African countries where there is evidence of corruption in many courts including the highest courts as it is the case in our country as can be seen in recent exposures of corruption in Nigerian courts.

  • Judicial reform Nigeria needs

    It must address the basics to make any impact

    The Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, was upbeat recently, when he received the report of the 13-member steering committee he set up a few weeks ago: “to coordinate a comprehensive reform of the country’s judiciary.” The committee was headed by Mrs Bilkisu Bashir, Secretary of the National Judicial Service Commission. According to reports, the CJN promised comprehensive reforms, based on the recommendations of the administrative committee.

    While we wish the CJN success in his aspirations for sweeping reforms in the judiciary, we are not sure whether the proposed administrative reforms will gift Nigeria the kind of judiciary they crave for. In our view, Nigerians earnestly desire a judiciary which will efficiently and quickly bring to justice those who have denigrated our common humanity through unbearable corrupt practices.

    If the CJN or the committee he set up had proposed a radical departure from the present inefficient criminal justice system, which is hindering the war on corruption, then we would gladly join in his excitement. Specifically, if the CJN, based on the report, will propose laws to make a person accused of corrupt enrichment liable to justify his sources of income, rather than mock the rest of us by claiming innocence despite glaring evidence of corruption, we will be glad. We also want a judicial system that will drastically reduce the number of awaiting trial persons that populate our prisons.

    But if the committee’s report is chiefly about the enhanced welfare of the judiciary, then we warn that there is not much to celebrate. Even the statement of the CJN betrays the misplaced optimism, when he said to members of the committee: “You were carefully chosen for the assignment basically because you are the engine room of the federal judiciary. You are in the administration; you have been in the administration. You ought to know what our problems are, because as they say, the wearer of the shoe knows where it pinches.”

    So, while we appreciate that the judiciary may actually have administrative challenges, the one problem which members of the society care more about is the ineffectiveness of the justice system. There is the belief among the populace that corruption festers, even among judicial officials; also, that big-time criminals easily get away because the system can be exploited. There is also worry that the National Judicial Council (NJC) which the CJN heads, has not shown the capacity to punish corrupt judges.

    In essence, if the CJN’s committee is proposing how to make the NJC more efficient in disciplining erring judges, then we can hope for a new lease of life for the judiciary. If the report proposes a change in the membership of the NJC, or a code of conduct that will ensure that cases brought before the council are expeditiously treated, then we can join him to invest hope for a new dawn. But how can a committee made up of the current administrators proffer solutions that may whittle or sweep away some of the privileges of their bosses?

    The committee cannot, for instance, recommend a radical departure from the turn by turn approach to the appointment of CJN or even chief judges of states. It cannot recommend a more efficient system of appointment of judges across the country or even a federalised judiciary. And, in our view, unless efficiency and capacity is made the watchword, the system will continue to throw up mediocre jurists at various cadres, and all that pulled together, gifts us a poor justice system to our common detriment.

    To an extent, the committee chairperson was honest about the limited value of their report, when she said: “our belief is that this report is only but a scratch. It is something that His Lordship will work with and improve upon.” But she confirmed the need for reforms, when she said: “from the discussions we had with the stakeholders, it is obvious that everyone wants to key into this reform programme of the Hon CJN.” On our part, we can confirm to that committee and the CJN that the stakeholders are indeed interested in more fundamental reforms.

    The CJN must therefore steer his reforms to cover the entire legal profession, including the practice of law in our courts. We consider it an aberration that courts allow lawyers, especially the senior advocates to stymie the new Administration of Criminal Justice Act (ACJA), which was enacted to hasten the duration of trials. Whether it is the laws or the practitioners that are to blame, it is scandalous that criminal cases still linger for years, with adjournments which, in our view, offend the ACJA, without any sanction.

    So when the CJN says: “to put things right and straighten the system is not going to be easy…” we earnestly hope his energy is channelled in the right direction. The right direction must gift Nigeria an efficient judiciary ready to bring corruption to its knees. Nigeria has witnessed so many judicial reforms, with almost every CJN coming with his own. But they have ended up reforming nothing because, largely, they did not address the fundamentals.

  • Onnoghen and judicial corruption

    It would amount to a fundamental contradiction in the current war against corruption to ignore the weighty issues just raised by Chief Justice of Nigeria (CJN), Walter Onnoghen on why corruption festers within the judiciary.

    He said the independence of the judiciary and its ability to dispense justice unhindered are threatened by federal governments’ agents and politicians. The CJN, who regretted the rising castigation and accusation of judicial officers for corrupt practices by agents of the federal government and politicians without giving them an opportunity to be heard, said the nation would get it right when the leadership abides by the constitution and rule of law.

    Though he spoke vaguely on how agents of the federal government hinder the ability of the judiciary to perform its statutory duties, he nonetheless illustrated the undue influence of politicians in judicial matters with the case of the Anambra Central Senatorial election where Senator Uche Ekwunife reportedly accused the judiciary of robbing her of her mandate without evidence.

    With the seeming focus on the malfeasance within the judiciary; especially following the sting operation by the DSS in which they stormed the residences of some judges, arrested and detained them, the issues raised by the CJN must be taken very seriously if we aim at a lasting solution to the corruption in that arm. The import of the CJN’s statement is that both the independence of the judiciary and its ability to dispense justice without fear or favour are corrupted and compromised by the obstructive proclivities of both agents of the federal government and politicians.

    Though Onnoghen did not come out with supporting data (for reasons that are obvious) on how this happens especially in respect of agents of the government, it is not difficult to fathom the ramifications of the undue influence a government in power could exercise on judicial decisions especially where their interest is involved. It is for this reason that modern constitutions provide for the independence of the judiciary and checks and balances between the three arms of the government.

    Despite this constitutional guarantee for judicial independence, what you find on ground is that of undue interference in judicial matters by the government of the day. It comes in varying dimensions. The sting operation by the DSS is one of such interferences. Though touted as part of the anti-corruption war of the current regime, that strategy detracted substantially from extant procedure for disciplining erring judicial officers. The constitution vests that power on the National Judicial Council NJC.  But that is just one dimension of it.

    As at now, one of the judges accused has been discharged and acquitted by the court. Yet, he is unable to resume duties. Another who suffered the raid and arrest has had no charge brought against him. Yet, he cannot resume duties. One of the justices even openly accused the Attorney-General of the Federation (AGF) of trying to settle scores with him for issues they had years before his (AGF’s) appointment.

    Apart from overt interference by agents of the government, incidences of covert influences are not in doubt. Perhaps, this point will find ample justification when we look at election cases that come before the judiciary. It has more or less become an axiom on these shores that a government in power cannot lose election petitions.

    That is why you easily hear – “declare the result and let them go to court”. Embodied in this statement is the notion that even glaring cases of electoral malpractices that come before the tribunals can still go either way depending on who is involved and the weight of his influence or purse. In this, both the judicial officers who lend themselves to corruption and the politicians or agents of government who deploy devious strategies to pervert the course of justice are culpable.

    Not only do governments in power (federal and state) put undue pressure (monetary and otherwise) on the judiciary to pervert the course of justice, they also entice them with some other mouth-watering promises. So the issues are real. Just a fortnight back, the same CJN alerted the nation that politicians made serious overtures to influence the outcome of the Abia State governorship election before the apex court.

    That is nothing new to the ordinary Nigerian. It is also not new on these shores that some judges come to the court with two judgments in their pockets and the one that eventually carries the day would depend on who among the parties is the highest bidder. That is how bad the situation has become. That is also why the public wanted the judges to be dealt with even outside the law when their privacy was invaded by the DSS.

    Perhaps as justified as the anger of the public was, it did not take into account the fact that the same government and politicians who want the heads of the erring judges for the unabashed corruption within that arm of government are neck deep in providing and facilitating both the necessary and sufficient conditions for the embarrassing corruption that thrives within our judicial system.

    That is the unmistakable point that has been brought to the fore by the CJN. And we can ignore it at a great peril to the current fight against corruption. Even the procedure for the appointment of judges in this country is not such that sufficiently makes for the independence and impartiality of judicial officers. Recurring agitations for judicial reforms illustrate this point most vividly.

    In effect, for us to win the war against corruption either in the judiciary or the larger society in which the judiciary operates, we must take a comprehensive and holistic perspective of the matter. It is not an issue ad hoc intervention by the DSS can reasonably remedy. Even then, as an agency of the executive arm of the government, there is no guarantee that such interventions are not part of a script by agents of the government to get even with judges that refuse to do their bidding.

    We should be more concerned with building strong institutions rather than relying on the vicissitudes of ad hoc measures. And as the CJN succinctly captured, the nation can win the war against corruption if the leadership abides by the constitution and rule of law.

    Where the laws are deemed highly limited in fighting corruption, the solution does not lie in going outside them no matter the constraints. This is because, in the task of fighting corruption within the judiciary, the government could also compromise the independence and integrity of that arm- factors that stand it out as the last hope of the common man. The solution lies in respect for the constitution and the rule of law.

    And where the need arises, processes for constitutional and judicial reforms could be activated. These are more lasting perspectives than the resort to self-help as was the case with the DSS intervention. For, both the government and politicians could as well be the greatest obstacles to the impartiality and independence of the judiciary.

    A similar scenario was equally evident in the recent alarm by the Chief of Army Staff, Lt. Gen Tukur Buratai that some individuals have been approaching some officers and soldiers for undisclosed political reasons. Those undisclosed political reasons have been interpreted as invitation to overthrow the civilian government.

    The parallel here is that just as the government and politicians are part of the corruption chain in the judiciary, both the military and civilians are two sides of the same coin in any attempt to terminate prematurely a democratic government. So we need to take all these factors along in evolving holistic and more enduring therapies against the scourge corruption and military coups.

  • Financial terrorism and crime-friendly judicial system

    SIR: Any country that wants sustained joy and decent life for the citizens must put down a sound structure that will guarantee substantial compliance with constitutional provisions.

    Regrettably, both the Nigerian constitution and judicial system were designed to encourage financial terrorism. Why should political office holders that have served for few years be entitled to such ridiculously huge severance packages while unfortunate civil servants that have served for 30 years and above are often owed pension stipends at times for several months.

    Another aspect of our national malady is the judicial system where a case can drag for over 20years from the high court to the Supreme Court. Any country that wants to make progress must ensure sanctity of sanctions. Cases that warrant sanction within 60 days are dragged for years and eventually abandoned.

    While petty thieves are often jailed, high profile cases involving billions of Naira are often subjected to several adjournments and in several other instances reassignments. It is unfortunate to observe that several politicians and others that have held sensitive positions in private and public offices are enjoying their loot while their cases continue to linger in courts or in fact completely abandoned.

    Junior criminals carrying guns about may become future political leaders if they are not promptly tamed and positively engaged. Once these junior criminals are caught and charged to magistrate courts, the usual procedure is application for bail, granting of bail, adjournment and case abandonment.

    We refuse to effectively control population and put in place a conducive atmosphere for job creation while thousands of students graduate from colleges without any job.

    The huge number of outstanding warrants in the prison yards may be directly proportional to the background record of those charged with that responsibility.

    Our leaders must wake up and effect massive review of our constitution and judicial system.

     

    • Akin Olojo,

    Ilesa, Osun State.

  • Judicial recognition of Western Sahara

    Western Sahara is a territory in North-West Africa which was colonised by the Kingdom of Spain at the end of the 19th century. Based on a demand by Morocco, it was added to the list of non-self-governing territories by the United Nations in 1963 pursuant to Article 73 of the United Nations Charter. In 1965, the United Nations General Assembly adopted a resolution calling on Spain to decolonise the territory. A year later, the UN asked Spain to conduct a referendum on self-determination in the territory. As the resolution was ignored by Spain, the Polisario Front began armed struggle for independence in 1973. Even though colonial rule ended in 1975, Spain illegally handed over the administrative control of the territory to Mauritania and Morocco despite the Advisory Opinion of the International Court of Justice which had recognised the right of the Saharawi people to self-determination.

    However, the annexation led to a war between both countries and the Saharawi national liberation movement, the Polisario Front, which had proclaimed the Saharawi Arab Democratic Republic (SADR).  Although Mauritania withdrew from the territory in 1979, the war of independence continued between Morocco and the SADR backed by Algeria. After 15 years of the armed conflict, both Morocco and the Polisario Front reached a ceasefire agreement on the ground that Morocco would organise a referendum for self-determination in Western Sahara. Notwithstanding that the 1991 agreement was brokered by the United Nations, Morocco has refused to organise the referendum. With the connivance of leading western governments notably United States and France (the major arms suppliers to Morocco), Rabat has defied all resolutions of the United Nations for the peaceful resolution of the struggle of the Saharawi people for self-determination.

    Thus, Morocco has continued to occupy the largest part of the territory including the major towns and rich natural resources mainly phosphates, agriculture and fishery products. A smaller part of the territory is however controlled by the Polisario Front whose legitimacy has been recognised by the United Nations and the African Union. The mineral resources of the territory which are illegally exploited by Morocco are exported to the United States and the European Union member states. In 2000, Morocco and the EU entered into a trade agreement which was reviewed and consolidated by the 2012 Morocco-EU Liberalisation Agreement to facilitate the exploitation of agricultural products, processed agricultural products as well as fish and fishery products.

    However, the legal validity of the both agreements was challenged by the Polisario Front in a suit filed at the European Court of Human Rights on November 19, 2012. Essentially the case alleged that the agreements violated the human right of the Saharawi people to self-determination. In a historic judgment delivered by the Court on December 10, 2015, the agreements were annulled on the grounds that the term “the territory of the Kingdom of Morocco” therein was understood to encompass Western Sahara. It was further held that the agreements had failed to take cognisance of the fact  that the exploitation of the natural resources of the territory of Western Sahara under the occupation and control of Morocco was likely to be to the detriment of its inhabitants and to infringe their fundamental rights.

    Not surprisingly, Morocco reacted to the judgment by temporarily freezing diplomatic relations with the EU. Equally dissatisfied with the judgment the European Council and Commission and five countries (France, Germany, Spain, Belgium and Portugal) challenged it on appeal by seeking for its annulment at the Court of Justice. Thus, following an expedited procedure adopted at the request of the European Council, the Court took arguments from the parties. In its ruling of December 21, 2016, the Court upheld the appeal. However, the Court categorically stated that in view of the separate and distinct status guaranteed to the territory of Western Sahara under the Charter of the United Nations and the principle of self-determination of peoples, it cannot be said that the term ‘’territory of the Kingdom of Morocco’’ which defines the territorial scope of the Association and Liberalisation Agreements, encompass Western Sahara and, therefore that those agreements are applicable to that territory.

    Furthermore and more significantly, the Court held that in view of the Advisory Opinion on Western Sahara handed down in 1975 by the International Court of Justice at the request of the United Nations General Assembly, the people of that territory must be regarded as a third party which may be affected by the implementation of the Liberalisation Agreement. In the present case, it is not apparent that that Saharawi people consented to the agreement being applied to Western Sahara. Having concluded that the Liberalisation Agreement does not apply to the territory of Western Sahara, the Court set aside the judgment of the General Court on the ground that the Polisario Front is not concerned by the decision of the European Council to conclude that agreement.

    The legal implication of the judgment of the European Court of Human Rights is that all EU agreements and treaties with Morocco cannot apply to the territory of Western Sahara. This is a major legal blow to the claim of Morocco over the occupation of the territory. Indeed, it is a judicial confirmation of Western Sahara as a separate territory distinct from the Kingdom of Morocco in line with the unimpeachable Advisory Opinion of the International Court of Justice of 1975. In his reaction to the epochal judgment of the European Court, Mr. Mohammed Sidati, the Polisario Front’s envoy to Europe has correctly asserted that “EU complicity in the exploitation of Western Sahara’s natural resources is a violation of international law, an obstacle to the peaceful resolution to the conflict, and a stain on the EU’s reputation”.

    Morocco and the EU members are totally shocked by the decision of the European Court of Human Rights on the legal status of Western Sahara. The shock was captured by Morocco’s foreign minister, Salaheddine Mezouar and the EU’s high representative for foreign affairs, Federica Mogherini who responded  jointly by  saying that “Both sides will examine all possible implications of the court’s judgment and will work together on any  issue relating to its application”. Unlike the Advisory Opinion of the International Court of Justice which has been disregarded by Morocco and her allies, the judgment of the European Court is binding on all the parties. Aside the parties to the dispute, the judgment has implications for other trading partners of Morocco.  Thus, by the judgment, any agreement between Morocco and other countries or companies which covers the occupied territory is liable to be challenged by the Polisario Front in municipal and international tribunals.

    In view of the financial risk of investing in Western Sahara with the approval of Morocco, the Polisario Front has invited governments and corporate bodies involved to legalise their activities by seeking the consent of the representatives of the Saharawi people. The caveat emptor issued by the Polisario Front is a warning to the Government of Nigeria which is currently negotiating a deal with Morocco for a natural gas pipeline that would pass through the territory of Western Sahara. To avoid unnecessary litigation arising from the proposed commercial agreement, the Buhari administration is advised to include representatives of the Polisario Front in the negotiations in line with the judgment of the European Court of Human Rights in the case of the Council of the European Union & Ors v Polisario Front.

    Finally, Morocco which withdrew from the Organisation of African Unity in 1984 upon the admission of the SADR to the body, has applied to join the African Union. As a precondition for joining the continental body, Morocco should be made to withdraw completely from the occupied territory of Western Sahara in line with the resolutions of the United Nations on the right of the Saharawi people to self-determination, the Advisory Opinion of the International Court of Justice of 1975 and the judgment of the European Court of Human Rights to the effect that Western Sahara is not part of the Kingdom of Morocco. In particular, the attention of Morocco should be drawn to one of the principal objectives of the African Union to defend the sovereignty, territorial integrity and independence of the member states including Western Sahara.

  • Facts behind judicial officers’ earnings

    Facts behind judicial officers’ earnings

    •Continued from last week

    When one even ventures to compare the salaries and purchasing power of Nigeria Judges and their counterparts abroad and in some African countries, what he or she observes could be highly appalling.

    In the United States of America (USA), while the Chief Justice John Roberts earns $255,500 (or N118, 807,500) per year, the eight associate justices earn a healthy pay raise to $244,400 (N113, 646,000).

    The salary for Supreme Court justices in US is significantly higher than the average salaries earned in related occupations. In 2010, the median salary for all judges and magistrates, regardless of level, was $119,270 (N55, 460,550). Federal circuit judges earned an average of $184,500 (N85, 792,500). Lawyers earned a median of $112,760 (N52, 433,400) yearly.

    As of April 1, 2010, Justices of the Supreme Court, including the Deputy President, were in Group 2 of the judicial salary scheme, with an annual salary of £206,857 (N123,700,486). This is the same group as the Chancellor of the High Court, Lord Justice Clerk, President of the Family Division and President of the Queen’s Bench Division.

    The President of the Supreme Court, Lord Chief Justice of Northern Ireland, Lord President of the Court of Session and Master of the Rolls make up Group 1.1 of the scale on £214,165 (N128,070,670), below only the Lord Chief Justice of England and Wales, who earns £239,845 (N143,427,310).

    In South Africa, according to the latest report of the Independent Commission for the Remuneration of Public Office Bearers, chaired by Judge Willie Seriti, judges in the high and labour courts earned annual salaries of R1.4million (or N46.9million).

    Judge-presidents (heads of court) pocket R1.6million (N53.6million) a year, Constitutional and Supreme Court judges get R1.7-million (N56.9million and the chief justice earns R2.3million (N77.0million), which is a far cry from what obtains in Nigeria. The package of the president of the Supreme Court is just over R2million a year. When they retire, judges are entitled to continue drawing their salary and other benefits, which continue to qualify for an annual increase.

    Doubtless, these princely sums would be quite inconceivable in Nigeria, yet on average, our Justices handle more than five times the number of cases that these Apex Courts adjudicate over.  If one was to contextualise these further, the purchasing power of our dear Naira is quite poor when compared with what is obtainable in these other countries.  As such making a comparison will be like comparing apples and oranges, chalk and cheese.

    It may as well be surprising to note that John Roberts, the 17th and  Chief Justice of the United States is just 61 years old. He took his seat on 29 September 2005, having been nominated by President George W. Bush after the death of Chief Justice William Rehnquist. And except by incapacitation, death or impeachment, he will hold this position for life.

    In contrast, the CJNs and the Justices of the Supreme Court mandatorily vacate the Bench at 70 years of age; even when they are physically fit and proper to compete with J.J.Okocha on the football pitch. Worst still, they are denied by our laws from going back to the Bar to practice, but rather to be soliloquising in the daytime and counting the stars in the night till the Lord demands for the return of his lordship.

    Shortly after Justice Olufunlola Adekeye retired from the Supreme Court bench on October 28, 2012, she said after 36 years in the service of the judiciary, she couldn’t look at a house she could go to as her own. And that is the fate of so many retiring judicial officers, except the few that were privileged to be heads of court.

    Also, during a valedictory court session held in his honour, Justice Adamu Bello, the erstwhile Justice of the Federal High Court , Abuja, fingered poverty and lack of welfare package for judges as key factors behind the spate of judicial impunity currently ravaging the country.

    It is therefore not just dangerous to underfund the Judiciary, but it is even more dangerous to input a hypothetical and gargantuan figure of N33.47billion as the nation’s judicial officers yearly earnings; when in the real sense they were paid N8.6b yearly.

    • Ahuraka is the Media Aide to Chief Justice of Nigeria

  • Still on judicial invasion

    Writing under the title-Invasion of judiciary: the dialectics, I had last week, examined issues arising from the sting operation by the DSS in which it arrested some judges on allegations of corruption. Reactions came in torrents and I consider it only fair to avail the public the benefit of some of these views.

    The few highlighted below, capture in the main, the feelings of a majority of those who reacted. Now read on:

    There is need for deeper reflection if indeed you want to consider the matter from a philosophical perspective. Some of us have been wondering why our courts have been running riot in passing conflicting judgments when certain individuals are involved. A less prompt approach would have led to a loss or destruction of evidence. There is nothing extraordinary about the NJC. I shudder to think you consider a corrupt and compromised judiciary as having no internal security implications. For me the dialectics of the situation is at work. – Ambrose Abanum.

    With views such as that of Emeka, Nigeria will remain in perpetual darkness and oppression. The same NJC that is clamoring to be allowed to carry out its duties is corrupt.  They attended to 232 cases out of 1800 received. And what are their outcomes –‘slap-wrist’ punishment, or compulsory retirement or refund. The outcome of the arrest proved the more how corrupt the judiciary is. A drastic situation requires a drastic solution. If such happened in China, most judges by now will have been executed and the rest will sit up –Kunle Orekoya.

    With views such as that of Kunle Orekoya, Nigeria will be in a big problem. Fighting corruption must follow the extant laws and devoid of double standards. How many of our senior army officers implicated by the same EFCC in the same dispensation were apprehended in the new found Gestapo style of the DSS? We must not start something that is not sustainable. We must fight corruption but not replace it with tyranny or reign of terror that will even make matters worse. Orekoya must note this: In China and in other climes, many of those with sordid pasts hobnobbing with the present government under the guise of fake support and solidarity would have been in jail   -Damian.

    When courts sit at nights to give injunctions, what did NJC do? When two judges give conflicting pronouncements on the same issue, NJC kept mute. If the DSS breaks roof to get at them, so be it. Anonymous.

    If the amounts as being said were actually found with them, it is then mind boggling. A drastic problem of corruption of this level needs a draconian approach such as the DSS people. Anonymous.

    Interestingly, none of these views is against the fight against corruption. But while four would tolerate unconventional strategies, only one wants that fight to follow extant laws. The latter is worried that ad hoc measures cannot be sustained and therefore of limited value in the type of systemic and sustainable change that can permanently restore the integrity and credibility of the judiciary. He wonders what value there is in kick-starting a process that cannot be sustained.

    The rest are worried by the level of corruption within the judiciary; the huge sums alleged to have been recovered from some of the judges and their effect on justice for the common man. For them, the DSS could as well break roofs, trample on peoples’ rights and become law unto itself and be justified as the end would have justified the means.

    That is where we run into serious problems. Even then, this position is largely tainted for being propelled by the faulty assumption that the receipt of gratification by judges to influence the course of justice is all there is to judicial corruption. That is not so. It is also flawed by the presumption that once judges are arrested and humiliated in crude ways or even jailed, the nation would have had a handle to judicial corruption. This is far from the truth as the ramifications of judicial corruption are more complex than what we have been made to believe.

    In its Global Corruption Report 2007, Transparency International (TI) made two classifications of judicial corruption: (a) political interference in judicial processes by either the executive or legislative branches of the government and (b) bribery.  Those who subscribe to unconventional approaches, see judicial corruption only from the narrow and circumscribed prism of judges taking bribe from the public to influence the course of justice. That is why they would even want the DSS to go outside its powers to ‘catch the thief’ and deal with him even through mob justice. Unfortunately, that approach, even with its questionable success value, does not provide solution to all there is to judicial corruption.

    We are even faced with a more dangerous and pernicious danger of judicial corruption arising from political interference in judicial processes either by the executive or the legislative arms of the government. The failure to factor this dimension into calculations while assessing the prospects of the DSS action in curing judicial corruption did incurable damage to supporters of that move.

    The issue to ponder is how does the offensive by the DSS address judicial corruption arising from the meddlesomeness of the executive? It has practically no answer to it.  And when it is considered that the same DSS is an agency of the executive, the whole contradiction become even more disconcerting.

    Are we sure what has been termed sting operation, ostensibly to sanitize the judiciary, is not a ploy for executive interference in the affairs of that arm of the government? And of what value are the arrests when some of the judges are back at the bench handling cases before them?

    Again, while one of the judges has attributed his travails to the rulings he gave against the DSS in cases before him, the other accused the AGF of vengeance for an issue years before his (AGF’s) appointment. Yet, some others have spoken of their refusal to be influenced in election cases before the Supreme Court as the real issue. We may wish to dismiss or rationalize on these allegations but they can only be ignored at a great risk to our democracy.

    If we believe the allegations the DSS made against the judges even when prima facie evidence is yet to be established, we do not have any basis to dismiss the ones coming from the judges. It has boiled down to the words of the DSS, AGF and other government officials against those of the judges. That is how hopeless the situation has become. That is the major flaw of the DSS action. And its consequences could snowball unpleasant consequences for order and good governance.

    Where does this scenario leave us? It reinforces the view that extant procedure for dealing with corruption within the judiciary can only be abridged with severe repercussions. That is why the NJC – a creation of the constitution with specific powers to discipline erring judicial officers should neither be trampled upon nor compromised. We are free to express reservations with the way that body handles issues before it. We are at liberty to criticize and lampoon the Judges and NJC for observed imperfections.  But the solution does not lie in going outside the box to invent make-shift solutions of very effervescent value.

    There is the temptation to view the development as the interplay of the social dynamics of history- involving the contradiction between thesis and anti-thesis that will give rise to synthesis (something beneficial to society). But I do not see such prospects because the action of the DSS does not command that force capable of unleashing fundamental changes of heuristic value. Again, the action is hugely flawed because it has nothing for judicial corruption arising from the interferences of the executive which ironically, the DSS works for. Incidentally, that is the worst form of judicial corruption our nation could face.

    The solution lies in fundamental judicial reforms to address observed shortcomings. But if we think multi-faceted judicial reforms cannot provide the elixir, Marxian perspective that such institutions are part of the superstructure that serve the interest of the ruling class, may be a soothing balm. Does that lead us any where?

  • NBA and judicial corruption scandal

    NBA and judicial corruption scandal

    SIR: The profession of the law has been taken into that very difficult grey zone of reconciling conflicting interests and loyalties. It seems to me that some leaders of the Bar, for reasons best known to each individual, have tilted towards personal loyalty to their closed professional class rather than towards loyalty and deference to greater, true national interests.

    Even more worrying is the attempt to justify this leaning by consciously mudding the clear waters of the law governing this very sad and disturbing occurrence: the government have been mischievously made to appear to have lawlessly violated the fundamental doctrines of the Rule of Law and constitutional Separation of Powers. The reality, however, is that it is, in fact, the government who is upholding these hallowed doctrines by insisting, respectively, that judges are as equal before the law as the humblest citizen in the realm, and that it is the exclusive constitutional power and duty of the executive – through its security agencies –  to detect and investigate crime, as well as arrest and prosecute a suspected criminal, and not, surreptitiously,  the  judiciary’s, through the National Judicial Council, whose role is constitutionally limited to the appointment, promotion, and discipline of members of the judiciary (in a way that is not too dissimilar to the average civil service commission).

    The ill-conceived argument of some leaders of the NBA, if accepted, would violate the tenets of both constitutional doctrines and produce the incongruity of judges investigating and deciding whether crimes alleged to have been committed by their brother judges should be prosecuted.

    The contrived indignation and obfuscation of settled law by some senior lawyers may suggest to many that the African personality and psyche is inherently deeply flawed. It may give the impression that elementary notions of justice, honour and fair play are indeed alien to the African psychology and culture. Regrettably, cynical interventions in national affairs by senior lawyers are neither new nor isolated: an earlier generation of lawyers advised Balewa in 1962 that he had the power to declare a state of emergency in the Western Region when clearly the circumstances for so doing did not exist as envisaged by the constitution. This single action destabilised the West, and eventually led to a military take-over and Civil War. Nigeria was never the same again.

    The effect of the hasty and ill-judged interjection  of the NBA in this matter can only be to further erode the declining public confidence and trust in the integrity and judgement of members of the profession of the law.

     

    • Akin A. Ajose-Adeogun,

     Lagos.

  • Judicial staff Union demand release of arrested judges

    The Judiciary Staff Union of Nigeria (JUSUN) has described as brutal and uncivilized, the raid on the houses of some Judges and their arrest at the weekend by men of the Department of State Security (DSS) for alleged corruption.
    The union said while it is in total support of the fight of corruption, the rule of law must be applied in dealing with cases of corruption and demanded the immediate release of all the arrested judges.
    National President of the union, Comrade Marwan Mustapha Adamu said in a press statement in Abuja that the union has summoned an emergency National Executive Committee (NEC) meeting for Tuesday 11, October 2016 to deliberate on the issue with a view to fashioning out the next line of action, if nothing is done to uphold the sanctity of the Judiciary as an arm of government.
    The statement signed by the National Public Relations Officer, Comrade Koin Selepreye quoted the Union President as lamenting the gestapo style adopted by the DSS in dealing with the matter.
    According to the Union officials, the secret police should have forward the names of the corrupt officers to NJC which is the statutory body which can punish or dismiss any erring judicial officer.
    While calling on members to remain calm on what he described as “invasion of the Judiciary” the union said “we received with disappointment the news of raiding and subsequent arrest of some Judges in Nigeria who were accused of corruption in an inhuman manner.
    “It is sad that as a Security Agency whose primary duty includes intelligent gathering and the protection of Senior Government official would now perform their duties in a gestapo style
    “The National Office of the Judiciary Staff Union of Nigeria (JUSUN) rejects this unfortunate trend. To think that an Agency like the DSS that is expected to respect the rule of law and due process would now under whatever guise not do the right thing.
    “In as much as we do not support corruption, we frown at the manner with which the DSS is going about its duty as it is very vindictive and unacceptable to us. We therefore urge the DSS and all Security Agencies to respect the Rule of Law for democracy to strive stronger in Nigeria”.

  • Conflicting judicial verdicts

    When Chief Justice Mahmud Mohammed recently cried out on conflicting judicial pronouncements from the Court of Appeal, he was apparently moved by the need to restore some sanity in judicial judgments and shore up public confidence in that institution.

    In an address at the Annual Conference of the Court of Appeal in Abuja, he told the justices that “the overriding objective of every legal system in the world is to do justice. However this cannot be achieved where there is confusion as to the state of the law as pronounced by the courts”. In apparent reference to these irreconcilable rulings, he told the justices they were not allowed to continue to shift the goalpost while the game was on.

    The admonitions of Justice Mohammed are timely given events in the nation’s judiciary since the conclusion of the last general elections. Following its outcome, candidates who had issues approached the various state election petitions tribunals to seek redress. But the way some of these petitions have been handled have left much to be desired. Not unexpectedly, allegations of miscarriage of justice, bias and other influences have been copiously canvassed against the judiciary.

    The impression one gets from these sometimes conflicting verdicts is either that the laws are imprecise; some of the officers charged with their interpretation are not competent or some other unwholesome considerations were at play. Or, how do we explain the wide disparity in the legal and constitutional grounds that have been cited to justify some of these decisions?  What of the issue of conflicts Justice Mohammed publicly complained about? Where do we fit in legal precedent when identical cases are curiously resolved very differently? Or did the justices not drink from the same fountain of legal knowledge? These moot questions are at the heart of the waning public confidence in the capacity of the judiciary to do justice to cases brought before them.

    Perhaps, issues raised here will be driven home most poignantly by the Abia and Taraba states’ governorship election petitions. In the case of Abia, the candidate of the All Progressives Grand Alliance APGA, Alex Otti had challenged the election of Governor Okezie Ikpeazu of the Peoples Democratic Party PDP.

    The crux of the petition is non-compliance with the electoral act through the cancellation of the results of Obingwa, Osisioma and Isiala Ngwa north local governments by the returning officer. The Abia State Election Petitions Tribunal had ruled that the PDP validly won the election as Otti failed to prove his case “beyond doubt”. The tribunal failed to grant his request to uphold the cancellation of the results in the three local governments as the state returning officer was not allowed under the law to cancel the said results, hence his subsequent reversal of same had no effect.

    But the Appeal Court in Owerri, declared Otti as the winner of the election having scored 164,444 valid votes against Ikpeazu’s 114, 444 votes after cancelling the elections in the three local governments. It further ruled that there was no need for a re-run because the results present Otti as the genuine winner even as it asked the INEC to swear him in as the governor of Abia State.

    The Appeal Court may be within its rights to differ with the tribunal in its ruling in respect of the results from three local governments. But the real issue is what it makes of that decision. In this regard, even as it decided to cancel the results of those local governments, there are issues regarding its conclusions that there is no need for a re-run. This is more so when it is reported that the total voting strength of the three local governments stands at above 300,000 people.

    The purport is that this huge number of the electorate would be disenfranchised in the choice of the governor of their state. But then, the universally accepted ratio of voters’ turnout vis-à-vis the total number of registered voters is put at about one third. What this implies is that about 100,000 valid votes were not put into reckoning in determining the winner of that election. And when the margin of votes with which the Appeal Court ruled in favour of Otti is taken into account, the flaw in that decision becomes more glaring.

    It is a slap on representative democracy for the Court of Appeal to have ignored the sovereignty of the electorate by awarding victory to the APGA candidate without putting the voting rights of such a huge number of registered voters into reckoning. The right thing to do is to order a re-run in the three local governments which are said to be part of the constituency of the PDP candidate. This is not only in tandem with the Electoral Act but will erase any suspicion of deliberate attempt to rob Ikpeazu of victory through the instrumentality of the judiciary.

    There are also issues in the decision of the court asking the INEC to issue Certificate of Return and swear in Otti as the governor of the state. The riot that erupted in the state following the ruling has direct bearing with the perception that the Appeal Court was bent on having the APGA candidate sworn in even before the case runs its full course. It must have been seen as a deliberate ploy to award the governorship election to Otti at all costs when the right to appeal is still open to Ikpeazu.  The hurry to get Otti sworn in is at the root of the criticisms that have trailed the Appeal Court ruling.

    If the Appeal Court’s handling of the Abia case shows some bias and inconsistency, that of Taraba state exposes how shoddily the election petitions tribunal handled the case before it. The grounds on which the Appeal Court upturned the verdict of the tribunal have put the competences of the tribunal judges in doubt. Legal and constitutional issues which ordinarily should have been at the disposal of the tribunal were flagrantly ignored in arriving at the decision to disqualify Darius Ishaku as the duly elected governor of the state. The ruling of the Appeal Court that the disqualification of the PDP candidate, Darius Ishaku is a pre-election matter which the tribunal has no jurisdiction, speaks volumes.

    The judges ruled that the constitution clearly states that unless a candidate has been indicted by a court of law or is known to have criminal record or certain degree of health conditions, such a candidate cannot be determined by a tribunal as not being qualified as a candidate.

    Why these grounds were not availed or totally ignored by the tribunal is part of the reasons for public disenchantment with some of the verdicts emanating from our judiciary. Above all, they raise questions as to the competences of some of our judges. Ordinarily, one would have expected those who occupy such elated offices to be people of high competence and integrity in the call of their duty. They are also supposed to be well groomed in the intricacies of legal arguments, extant laws of this country and logic such that they are not easily faulted by their colleagues.

    The credibility of the judiciary is tainted each time judges who are supposed to be very competent in the interpretation of our laws are easily faulted by their colleagues. It is true that an appellate court can overrule a lower court. But in such situations, it is not envisaged that the grounds would be rudimentary points of law that ordinarily should be at disposal of even the man on the street.

    It remains curious how the ruling of the Appeal Court in the case of Abia State that clearly disenfranchised over 300,000 voters can satisfy the true test of free, fair and credible election. The right thing is for a re-run to be conducted to allow the people of the three local governments exercise their franchise in the choice of their governor. Nothing should be done either to abridge or circumvent this inalienable right. Anything to the contrary will amount to procuring the peoples mandate through the back door. That is where the Supreme Court should come in to avert judgments which Justice Mohammed said “cast your lordships in an unfavorable light and leave the judiciary at the mercy of innuendos, crass publications and editorials”