Executive vs Judiciary: The Politics, the Dilemma

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Bolaji Adebiyi in Abuja

The October 7 and 8, 2016 raids on the homes of some judges by operatives of the Department of State Services (DSS) have continued to generate intense controversy over the propriety of the action of Nigeria’s secret police, which said it moved against the judicial officers to obtain evidence of their alleged corrupt activities.

The DSS had in midnight raids across two states and Abuja stormed the residences of the judicial officers. Justice Sylvester Ngwuta and Justice Inyang Okoro of the Supreme Court, as well as Justice Adeniyi Ademola and Justice Nnamdi Dimgba of the Federal High Court, Abuja Division, were arrested in Abuja. While Justice Muazu Pindiga was nabbed in Gombe; the operation in Port Harcourt targeted at Justice Mohammed Liman of the Federal High Court, Port Harcourt Division, was unsuccessful as the DSS mistakenly stormed his neighbour’s house instead of his own.

In all, seven judges, including Justice Kabir Auta of Kano High Court, Justice Mohammed Tsamiya of the Court of Appeal, Ilorin Division, and the Chief Judge of Enugu State, Justice Innocent Umezulike, were taken into custody by the secret police for alleged bribery and corruption, but were admitted to bail on self-recognition, pending the conclusion of investigations into their alleged offences.

The National Judicial Council (NJC), the body established by the constitution to regulate the appointment, discipline and welfare of judicial officers, has since declared the action of the DSS illegal, unconstitutional and an assault on the independence of the judiciary. A position that was in tandem with the initial reaction of the Nigerian Bar Association (NBA), which declared a state of emergency in the judiciary, saying the raids on the homes of the judicial officers were unlawful.

But last weekend, it moderated its view, asking the suspected judges and justices to step down until they cleaned their soiled names. The NBA immediately got the support of the Body of Senior Advocates of Nigeria and a motley crowd of anti-corruption civil society organisations, who called for the suspension of the judges, arguing that it would be awkward to have serving judges stand criminal trial.

But the NJC has stoutly rebuffed the call for the suspension of the judges on the grounds that it would amount to presuming them guilty, even as investigations into their alleged crimes were yet to be concluded. In any case, argued the NJC, there were no petitions from the DSS against the judges before it to warrant the imposition of such a sanction.

In the meantime, the NJC is slated to meet with the NBA tomorrow to resolve the logjam, which threatens to snowball into an eyeball-to-eyeball duel between the executive and the judicial arms of government. The DSS, an agency of the executive, claims that its action was to exorcise corrupt judicial officers that were tainting the revered image of the judiciary.

The NJC says while it does not condone corruption within its ranks, the DSS raid was an unwarranted assault on the principle of separation of powers enshrined in the 1999 Constitution, contending that it violated its well-known rules of procedure for the dealing with misconduct by judicial officers.

Resolving the logjam promises to be testy particularly because of the claims of some of the judges that they have been targeted for political reasons. Two of the judges, Okoro and Ngwuta, have pointedly accused the Minister of Transportation, Mr. Rotimi Amaechi, of approaching them to influence the outcome of the Akwa Ibom and Rivers States’ governorship election petitions that were decided by the Supreme Court earlier this year in favour of the opposition Peoples Democratic Party (PDP), claiming that it was their refusal to oblige him that is at the root of their travails. Two other judges, Ademola and Dimgba, also traced their predicaments to their rulings against the DSS in some cases they had decided.

Without a doubt, corruption is an epidemic that has permeated the fabric of the nation and many Nigerians are indeed disappointed that the cankerworm has eaten into the judiciary, whose officials are entrusted with the sacred duty of dispensing justice to all without fear or favour. There have been reasonable grounds for suspecting that the judiciary has been corrupted. The evidence is there in the several contradictory rulings and judgments that are given by courts of coordinate jurisdictions both at the High Courts and the Court of Appeal. The contradictions have been more pronounced in political cases. With their enormous powers, which could be used to take away the liberty and even the life of other citizens, it is not too difficult to appreciate the excitement of many Nigerians at the news of the raid on the homes of the alleged corrupt judicial officers.

But the caution is that the war against corruption has to be fought within the ambit of the law in order not to encourage executive lawlessness, which many social critics fear is what has occurred in the current face-off. If judges are suspected to have compromised their judicial positions, is there no laid down procedure to bring them to book? Is a middle of the night raid on their homes a necessary way to apprehend exhibits and arrest them? And is it a coincidence that it is mostly judges with a history of adversarial rulings against the agents of the executive that have been targeted?

All the statements made so far by the NJC show a conviction that the DSS raid on its officials was not only an unlawful act but also an exercise intended to intimidate the judiciary. It is perhaps true. The body is created by S153 (1) (i) of the Constitution and S158 insulates it from interference of the executive arm of the government, pursuant to the principle of separation of powers enshrined in the constitution. Up till now, the NJC, although at a slow pace, had exercised its disciplinary powers over judicial officers, suspending some pending the conclusion of investigations and recommending others for compulsory retirement or dismissal to the president or state governors, as the case may be. Some of the cases it had handled in the past involved allegations of bribery and corruption.

Indeed, two of the judges in the instant DSS investigation had just been recommended for compulsory retirement. Moreover, the DSS and other security agencies, including the Economic and Financial Crimes Commission (EFCC) had in the past reported cases of misconduct to the NJC for action. Some, according to the NJC, had been treated while others are part of the 308 cases that are pending with it. So why the raid?

Some of the suspect judges, and the NJC by its stance, seem to agree that the raid was a political act of intimidation. Following the loss of the two critical and strategic South-south states of Akwa Ibom and Rivers by the ruling All Progressive Congress (APC) in the 2015 general election, the ruling party resorted to the election petition tribunals, seeking to overturn its electoral defeats. As the tribunals were treating the petitions, complaints were rife about the intimidation of opposition parties’ witnesses, including Independent National Electoral Commission (INEC) officials, by the DSS. The situation was so bad that some of the witnesses shuttled between tribunal sittings and DSS detention facilities. Indeed some of them are still the subject of DSS investigation and prosecution for alleged corruption.

Although the APC won some of its cases at the lower courts, they were all overturned by the Supreme Court. Leading APC politicians complained loudly and insinuated that the Supreme Court’s decisions were not entirely based on law. Meanwhile, opposition politicians pointed to the relentless prosecution of witnesses for alleged corruption by the DSS and its sister agency, the EFCC, without much success at the courts.

On more than two occasions, once outside the country, the other during a media chat on national television network, President Muhammadu Buhari complained about his frustrations with the judiciary, accusing it of clogging the wheel of progress in the fight against corruption. The presidential utterances and the activities of its agencies lend credence to the unspoken belief of the NJC and its sympathisers that the recent ordeal of some of its officers were beyond the fight against corruption. May be.

Shortly after Buhari’s outburst, the media became agog with the debate over the possibility of appointing a new Chief Justice of Nigeria (CJN) from outside the Supreme Court upon the retirement of Justice Mahmud Mohammed who is due to bow out on November 10. The idea perhaps is to bring someone from outside in the hope that the current justices would resign in anger, a situation that would give the president the opportunity to populate the court with his men. Although hostile public reactions to the possibility of disrupting the age-long conservative order of succession by seniority at the Supreme Court may have forced the presidency to beat a retreat, opposition politicians and some analysts think that it was the failure of this strategy that gave birth to the DSS raid on the home of the judges.

“The hope was that the two justices of the Supreme Court arrested would implicate their colleagues and pave the way for the mass retirement of the justices. That strategy too, has failed,” a Senior Advocate of Nigeria told THISDAY.

But it is widely believed in judicial circles that the president still harbours a desire to extract a pound of flesh from the Supreme Court. Attention is called to his reluctance to forward the name of Justice Walter Onnoghen to the Senate for confirmation two weeks after the NJC transmitted its recommendation to the presidency. The delay is said to have been caused by the DSS’ frantic search for something to nail him so that the third in line of seniority at the Supreme Court, Justice Tanko Muhammad, could be nominated to replace him. So far, nothing has been found.

Yet shunting Onnoghen for Muhammad is bound to worsen Buhari’s reputation for preference for appointing northerners to sensitive positions. Sidelining Onnoghen for whatever reason would torpedo the chance of the south to occupy the top judicial post again 29 years after Justice Ayo Irikefe retired from the post.

Not a few critics, however, believe that the travails of the judiciary is the NJC’s doing, having regard to its snail speed response to the handling of petitions on misconduct by judicial officers. By its own account, over 300 petitions are pending with it and it has neither given any indication on when it intends to treat them, nor has it proposed any reform to speed up its processes for dealing with complaints against its officials. Instead, by curbing the disclosure on petitions against judicial officers and barring the media from reporting them, its focus is on introducing opacity to its disciplinary action against sullied judges in the country.

Although the NJC pleads not to be stampeded to work outside its procedures, its slow pace of work and conservative processes that allows tainted judges to sit while they are being investigated leaves the council with a moral burden. As the legal luminary, Chief Afe Babalola (SAN), pointed out in his intervention on the debate on the DSS raid, the absurdity of a serving Supreme Court justice standing in the dock before a judge of a High Court looms large over a judiciary whose image has taken so much bashing in recent times. It is in order to prevent the occurrence of this absurdity that the NBA has now shifted its position and asked the NJC to suspend the suspect judges, pending the outcome of the investigation of their alleged crimes and possible prosecution. Will the NJC buckle? Time will tell.