His Lordship, the Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed, has spoken. From his sky-high pedestal in the hall of justice, he unequivocally declared that corruption is the major problem in the judicial branch of the government of Nigeria.
Coming from the CJN, the declaration is a powerful self-indictment by the head of the arm of government that has the constitutional mandate to adjudicate with fairness and justice. The deliberateness of the symbol of justice as a blindfolded lady is unmistakable. Justice is not a respecter of persons. By the admission of the CJN, however, our system of justice is an exception to this age-old and universal expectation.
“What do you expect?” a skeptical mind would ask. “The whole system is ridden with corruption and you expect the judiciary to be squeaky clean! Get a life!” It surely is an understandable response borne out of the frustration of the unconnected. But it would be a good response only if we had not been made to believe that in a democracy established on the rule of law, the judiciary is the last hope of citizens. As such, shouldn’t we rightly expect it to live up to that expectation? And if we don’t, is the recourse to self-help in the interest of anyone?
Apparently in a moment of self-scrutiny, the Nigerian Judicial Council (NJC) has finally come to terms with the huge responsibility the constitution has placed upon it. As the watchdog of the judicial branch, the NJC has formulated the Nigerian Judicial Policy (NJP), which was launched on Monday, October 24 by the CJN.
While the NJP was formulated and presented as a broad policy on the judicial branch, covering issues ranging from judicial appointment, judicial education, judicial code of conduct, to judicial discipline, it is the matter of judicial (mis)conduct and (in)discipline that received the most attention from the public. This is not a surprise, given the most recent allegations against some judicial officers, including justices of the Supreme Court.
Yet, it is not the first time that the NJC has focused its attention on the matter of judicial discipline. Two years ago, on November 3, 2014, the former CJN, Justice Aloma Mariam Mukhtar, on behalf of the Council, released the 2014 National Judicial Council Judicial Discipline Regulations. Acknowledging that the constitution empowers the NJC to “exercise disciplinary control over judicial officers against whom allegation of misconduct has been made”, the document presented regulations that govern allegations and complaints of misconduct and the Council’s proceedings in dealing with them.
Perhaps the most obvious and controversial difference between the 2014 document and the 2016 NJP is the glaring absence of a press gag in the former. The 2014 document contained 15 substantive sections, including the time limit within which a complaint must be made, form and initiation of complaint, preliminary complaint assessment committee, terms of reference of investigating committee, and report of investigating committee.
A most charitable analysis of the 2014 document may conclude that it was an honest attempt to deal with a most difficult issue. On the one hand, it welcomed complaints against judicial officers, and it guaranteed an objective investigation of credible complaints against them. On the other hand, it strives to discourage frivolous complaints and abuse of the process. This was the rationale for the Preliminary Complaint Assessment Committee.
The real question is the extent to which there was an alignment of the words of the document with the actions of those assigned the responsibility to investigate cases. In the case of an absence of consistency between the two, however, the document cannot be faulted. But from the fact that two years after its release, the public is not persuaded that there has been a visible improvement in the matter of judicial corruption, it is fair to conclude that the important weapon of deterrence has not been effective, either because those who were charged with the responsibility of investigating these cases have not been up to the task or the loopholes in the system have enabled the accused to outsmart them.
Yet there have been cases where the NJC has controversially bared its fang to the detriment of justice and fairness. Recall the case of Justice Isa Salami of the Federal Court of Appeal whose complaint against the Chairman of the NJC at the time was handled in a most shoddy manner. That case tested the integrity of the system and the body that had the responsibility to protect it and it failed woefully. And because the ruling government of the day was neck deep in judicial corruption, it went along with the farce, soiling the entire system and eroding public confidence in the NJC itself.
The Salami case was that of a highly-placed judicial officer complaining against the head of the judiciary and getting whipped as a result. The internal checks of the system failed and there are probably more of such that were not publicly known. The failure of internal checks is bound to attract external probing and that is exactly what happened, unfortunate as it is, with the DSS raid. Any democrat who believes in the doctrine of the separation of powers should naturally be enraged and alarmed at the development.
The DSS is an agency of the executive branch. It is a dangerous threat to democratic norms for that branch to police another branch, especially the judicial branch. This is the task of the police or the EFCC, which are, at least, constitutionally established as independent bodies. Our constitution is inspired by the United States Constitution. This is why the Federal Bureau of Investigation (FBI), as the Federal Police, is constitutionally charged with such responsibilities in the U.S., and it is an equal opportunity crime buster whether in the executive, legislative, or judicial branches.
Now, if the NJC 2014 document on judicial discipline did establish a framework for effectively countering judicial misconduct with provisions that respect transparency and fairness, the 2016 NJC Judicial Policy manages to take the path of darkness with its insertion of an oath of secrecy into the investigation of judicial malfeasance. And it is unfortunate that it is this aspect of the NJP that has stood out and has received the most coverage since the unveiling of the policy.
In inaugurating its judicial policy and its ethics committee, NJC announced that petitions submitted to it must be kept under wraps until the conclusion of such investigations that it may decide to undertake. And even then, public disclosure of findings may only be allowed “subject to following the proper channels for such disclosure.” In other words, the public will be kept from knowing who is being investigated, for what he or she is being investigated, and the outcome of such investigation may either be known or unknown.
Yet, as the CJN clearly states: “The National Judicial Policy is borne out of the realisation that the Nigerian Judiciary had been adversely affected by the absence of a clear, coordinated policy framework that defines its core morals, values, objects and aspirations.” Continuing, he declares that “corruption has serious implications for both the rule of law and access to justice, and must be fought both institutionally and individually. This is why the National Judicial Policy contains clear provisions restating the judiciary’s commitment to transparency and accountability.” How this commitment to transparency and accountability squares up with the resort to secrecy in the conduct of investigation into allegations of judicial corruption is a mystery!
The matter cannot be glossed over. A few days before the launching of the NJP, the Civil Society Network Against Corruption (CSNAC) had taken the NJC to task on its (NJC) declaration that it had acted on all cases of allegations of misconduct against judicial officers. Against this declaration, CSNAC alleged that NJC had refused to investigate or sanction judges accused of corruption. The organisation cited 10 such cases which it alleged that NJC had refused to investigate. This was prior to the introduction of the new policy that bars the public from knowing about the existence of such allegations.
With the new code of secrecy, may God help us.
