Why NJC Must Be Proactive

Until the National Judicial Council develops a method of investigating judicial officers rather than wait for petitions from members of the public, allegations of corruption will continue to plague the judiciary, writes Davidson Iriekpen

Last week, the Code of Conduct Tribunal discharged Justice Sylvester Ngwuta of the Supreme Court of the allegations of corruption levelled against him by the federal government. The judge had recently been discharged of similar offences by by a Federal High Court in Abuja.

In their ruling, the tribunal Chairman, Justice Danladi Umar, and member, William Atedze Agwadza, agreed with the argument of Ngwuta that as a serving judge of the Supreme Court, he cannot be tried in any court or tribunal except after he had been subjected to the investigatory and disciplinary processes of the National Judicial Council (NJC).

Ngwuta was among the seven judges whose homes were invaded in a sting operation in 2016 by operatives of the Department of State Service (DSS). Following his arrest, he was then arraigned before the Federal High Court on a 13-count criminal charge bordering on money laundering and unlawful possession of multiple international passports.

On March 21, 2017, the government equally filed an eight-count charge against him in court. The prosecution accused him of contravening the Code of Conduct Bureau (CCB) and Tribunal Act by failing to declare some of his assets. He was also accused by the prosecution of possessing 28 plots of land, which he allegedly refused to declare to the CCB between June 2, 2011, and July 19, 2016.

It was also alleged that Ngwuta, within the same period, engaged in the purchase and sale of rice, palm oil and other related products, while being a judge of the Supreme Court. The federal government also claimed that the judge owns five cars, which he allegedly kept away from the CCB.

In discharging the judge, the CCT in its decision, relied on the judgment of the Court of Appeal in the case of Justice Hyeladzira Nganjiwa, in which the appellate court held in a December 2017 judgment that by virtue of Section 158 of the 1999 Constitution, the NJC has the powers to sanction judicial officers for any misconduct while in office. The tribunal held that a judge could not be prosecuted by any court or tribunal until the NJC has dealt with the allegations against him/her and takes a decision of either dismissing such a judicial officer or compulsorily retiring him or her. It consequently quashed the charges against Justice Ngwuta and discharged him.

Last March, Justice John Tsoho of the Federal High Court in Abuja had discharged Justice Ngwuta of similar offences. Following an application by Ngwuta’s counsel, Godwin Agabi (SAN), challenging the jurisdiction of the court to try him when the NJC had not found him culpable of any misconduct or recommended him for trial, the trial judge, in his ruling, struck out all the charges against the Supreme Court judge for lack of jurisdiction.
The court held that the prosecution did not fulfil “the condition precedent in filing the charge against judicial officers,” adding that there was no dispute to the fact that Justice Ngwuta is a serving Supreme Court Justice.

The court relied on the judgment of the Court of Appeal in Justice Nganjiwa’s case.
Tsoho noted that both the prosecution and defendant counsel are in agreement that the Court of Appeal’s decision in Justice Nganjiwa applied to this case, “except that the prosecution made an exception and listed theft, arson and murder as cases where judicial officers may be arrested and prosecuted without recourse to the NJC.’

“In my humble view, separation of power between the three arms of government is entrenched in the constitution. The NJC is given power to discipline erring judicial officers. By strict adherence, the power is constitutionally vested on the NJC to discipline judicial officers and that power cannot be taken away in a democracy. It is tidy and safer that all matters relating to the discipline of judicial officers should be first dealt with by NJC,” Justice Tsoho held.

Recall that in the case of Justice Nganjiwa which the CCT and the Federal High Court relied on to discharge Justice Ngwuta, the Economic and Financial Crimes Commission (EFCC) had arraigned him (Nganjiwa) on a 14-count charge of corruption before the Lagos State High Court in Igbosere where it accused the judge of receiving a total of $260,000 and N8.65million gratification to unlawfully enrich himself as a public official.

But the Court of Appeal, in a lead judgment by Justice Abimbola Obaseki-Adejumo on December 11, 2017, struck out the charges, holding that EFCC lacked the power to prosecute a serving judge, who has not been first investigated and dismissed and handed over for prosecution by the NJC.

Many Nigerians will like to know what happens to all the allegations levelled against the judge now that he has been discharged. What happens to the allegations that two Diplomatic Passports and another two valid Standard Nigerian Passports were found in his possession? Is it lawful to have two valid passports? Is it lawful to falsify age? How did he come about the huge sum of money both in local and foreign currencies found in his home?

Until the DSS conducted the sting operation where its operatives raided the homes of some justices, jsome judicial officers were conducting themselves in a most indecent and despicable manner.

The enthusiasm which used to greet the nerve of the judiciary few years after the country attained democracy in 1999 was replaced by apathy, frustration, anger and revulsion from the public. Judges were often derided and abused because justice is now in the hands of the highest bidder. The resultant effects, according to observers, were the vague, contradictory and incongruous judgments that emanate from their chambers. Hardly were judgments in sensitive political cases delivered without allegations of bribery. Sometimes, these allegations are fuelled by judges reaching different conclusions in similar cases.

So bad was the situation then that the late respected Justice of the Supreme Court, Kayode Eso, of blessed memory took a swipe at the judiciary, saying that the judiciary was full of judges and justices who ought not to have been there in the first place. Eso said until the bad eggs in the institution were flushed out, the justice sector would continue to witness retrogression.

He wondered if it was the same judiciary that produced the likes Sir Egbert Udo Udoma, Akinola Aguda and Olayinka Ayoola and many others whose names vibrate and reverberated in the Halls of Chief Justices for great African countries that produced the current crop of judges and justices. He said gone were the days when it was a pride to be counted among justices of the Supreme Court who in the military dictatorship, held the notorious military decrees at bay.

What happened between a former Chief Justice of Nigeria, Justices Aloysius Katsina-Alu, and a former President of the Court of Appeal, Justice Ayo Salami, exposed how judgments were negotiated and traded away.
A renowned constitutional lawyer, Professor Ben Nwabueze (SAN), then had criticised some judges and justices on quality of their pronouncements. He accused them of allotting governorships and presidency at their whims and thereby diminishing the tenets of justice cum constitutional democracy.

Another lawyer, Chief Afe Babalola (SAN) once lamented that it was regrettable that Nigerians were no longer reposing confidence in the judiciary despite the acronym that it is the last hope of the common man. He posited that experience in the past had shown that “our bitter experience is that election petitions have inflicted severe injuries and damage on the electorate, the judiciary (which has been brutalised and called all sorts of names) as well as the political class.”

Former President Olusegun Obasanjo and a former Chief Justice of Nigeria (CJN), Justice Mohammed Uwais, at a function in Lagos, expressed disgust over the present state of the nation’s judiciary and agreed that the system was riddled with corruption.
To know that these were the periods Justice Ngwuta and many others held sway both at the Court of Appeal and Supreme Court, and have got away based on judicial procedural immunity is really baffling to many Nigerians.

For an agency that relies mainly on petitions to move against judges, many Nigerians feel that discharging judges, including Justice Ngwuta, on the grounds that security agency lacks the power to prosecute a serving judge, who has not been first investigated and dismissed and handed over for prosecution by the NJC is not tenable. They feel that the NJC should fashion a way of conducting discreet investigation against judges beyond waiting for petitions from members of the public.

“So if nobody files a petition against a judge all through his entire career, does that make the judge a saint? Certainly not! Can’t the NJC on its own sniff the judgments judges delivered either at the Court of Appeal or Supreme Court to know whether it was tainted or corruptly delivered based on his or her submissions and conclusions?”, asked a Lagos-lawyer who did not want his name mentioned.

“All over the country, we have seen how the Court of Appeal and sometimes the Supreme Court have lampooned judges for either delivering poor and biased judgments, what has happened to them? Nothing. They still go ahead to deliver more,” he added.

This is why an advocacy group, Access to Justice (A2J), frowned at the discharge and acquittal. In a statement by its Executive Director, Joseph Otteh, it rejected the judgment, saying the court had, by its judgment, “clothed judges with procedural immunity.” The group said it had not found anything in the constitution that authorised a branch of government to control the exercise of the powers of another branch.

It said: “Access to Justice disagrees with this judgment, respectfully. The decision will gravely undermine the ability of law enforcement agencies to function freely and independently and obstruct efforts to hold the judiciary accountable for any abuses of its adjudicatory authority for which many judges have been sanctioned by the NJC in limited respects.

“Although the decision avers to safeguard the separation of powers structure between the respective branches of government, it however, brutally assaults it, for it essentially bars law enforcement agencies (executive bodies) from undertaking their functions where judicial officers are concerned unless the NJC (a judicial body) has first examined the matter and found the judge culpable of misconduct.

“The Court of Appeal has now introduced a ‘procedural’ immunity clause for judges, which, all things considered, may be just as good as a substantive immunity protection. Here’s how: persons who may have information of illicit enrichment by judges cannot approach the NJC, because the NJC will ask for hard proof – as had happened in many instances. Not having the powers of law enforcement agencies, they cannot gather evidence by themselves from relevant financial institutions as only law enforcement agencies can request to see financial cash-flow statements from financial institutions within the context of a criminal investigation.”

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The group said it had not found anything in the constitution that authorised a branch of government to control the exercise of the powers of another branch