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Allegations Of Corruption In The Justice Delivery Sector: Implications For Rule Of Law & Democracy By Femi Falana

Introduction 

For the past three decades, I have been involved in the struggle against human rights violations, corrupt practices and abuse of powers by certain principalities in Enugu State. In the 1980s I was here to defend the late Chima Ubani and other leaders of the student union of the University of Nigeria, Nsukka when they were expelled on grounds of political extremism. I also defended them when they were later charged before a Special Military Tribunal which sat at Enugu. In the 1990s I was equally here to launch legal battles against the proscription of the Academic Staff Union of Universities (ASUU) by the Sani Abacha junta and the expulsion of Malachy Ugwumadu and his colleague by the Vice-chancellor the UNN. Even though the country was under the jackboots at the material time the military dictators and the UNN authorities lost all the criminal and civil cases to our clients.

Three years ago, I was briefed to take up the case of the illegal detention of the then first lady of the State, Mrs.Clara Chime. She had been locked up in a room in the government house for weeks. She briefed me, through SMS and emails which she secretly sent to me, to secure her freedom from the illegal custody. When it was discovered that she had contacted me her phones and IPAD were impounded. I took up her case pro bono. As soon as I reported her illegal detention to the National Human Rights Commission, the Nigeria Police Force and the State Security Service my locus standi to intervene in what was regarded as a family affair was challenged by her husband who was then the State governor. In defending my own intervention in the matter I referred the detainer who is a senior lawyer to the celebrated case of Fawehinmi v Akilu. where the Supreme Court held that we are all her bothers’ keepers.

Shortly thereafter, I led a team of colleagues to challenge the illegal impeachment of a former deputy governor in the State, Mr. Sunday Onyebuchi by the House of Assembly. The ground for the removal of the public officer from office was that he had engaged in poultry in the government quarters. Since the Constitution has excluded engagement in farming from the management or running of private business by public officers which is prohibited the Enugu State High Court had no difficulty in voiding the illegal impeachment.  Sometime last year, Mr. Peter Eze was subjected to intimidation by the then Chief Judge of Enugu State for reporting him to the National Judicial Council (NJC). Apart from securing the enforcement of his personal liberty at the Federal High Court we fought against the official moves to cover up the gross misconduct alleged to have been committed by the Chief Judge. Through personal sacrifice, courage and perseverance Mr. Eze was able to say like Paul the Apostle,”bonum certamen certavi” (I have fought thegood fight). I am therefore delighted to return to a familiar terrain of struggle to address the Enugu branch of the Nigerian Bar Association (NBA) on the controversial issue of judicial corruption in our country.

Danger of raiding Judges’ homes at night

Even though I support the purge of the judiciary I am unable to persuade myself not to endorse the nocturnal raid of the official quarters of corrupt judges. More so, that leading politicians of the ancient regime and scores of military officers accused of criminal diversion of public funds have not been subjected to such bizarre indignity. In any case, since the Attorney-General of the Federation (AGF) has admitted that he authorized the raid he is vicariously liable for the illegality of the invasion of the house of Justice Nnamdi Dimgba of the Federal High Court. From the information at my disposal the ‘offence’ committed by the judge was that he had ordered the SSS to produce a detainee in a fundamental right application pending in his court.  Since Justice Dimgba has never been associated, even remotely, with corrupt practices, he deserves an unreserved apology from the federal government. In prosecuting the war against corruption the SSS should not be allowed to harass judges whose fidelity to integrity cannot be questioned.

Under successive military dictatorships in Nigeria the NSO/SSS carried out several nocturnal raids on my home in a desperate move to cow me to submission. I always opened my doors ajar whenever the security operatives came calling. However, on  April 8, 1990, after the night raid of my house I was arrested at about 4.15 am and driven to the outskirts of Lagos along the lonely Epe road and dumped in the bush by the operatives of the SSS. Simultaneously, the home of the late Dr. Beko Ransome-Kuti was invaded. He too was arrested and driven to Ijanikin along Badagry road where he was abandoned in the bush by his abductors. It was not a commercial venture as no ransom was demanded or paid before our release. As soon as we returned to our homes we addressed the press to alert Nigerians of the new tactics of kidnapping political opponents by the military junta. To our utter chagrin, the SSS denied any involvement in our abduction. Although we dismissed the official denial we and our colleagues in the human rights community resolved never again to open our doors to midnight marauders. And we never did until the end of military rule in May 1999.

However, when the late Chief Gani Fawehinmi SAN, the late Dr. Ransome-Kuti and I returned to Kuje prisons in July 1993 we met a security officer who was in detention for alleged security breach. In the course of our interaction he informed us that the April 1990 abduction was carried out as part of the preparation for the Gideon Orkar-led coup. According to the officer, our abductors wanted to incite the human rights community against the Babangida junta.  I have recalled the personal encounter with the semi official kidnappers to draw attention to the danger of invading the homes of judges in the middle of the night. As kidnapping has become rampart in the country corruption may fight back by recruiting criminal elements to wear masks and abduct innocent judges at night and kill them andthereby embarrass the Buhari administration. To avert such ugly development the federal government is advised to stop security forces from further raiding the homes of judges at night.

Allegations of Corruption in the Justice Delivery Sector

Notwithstanding the arrest and the raid of the homes of judges where sums of money were recovered. And notwithstanding the arraignment of some of arrested judges in court the charges are mere allegations until they are proved beyond reasonable doubt. To that extent, we cannot comment on the contents of the charges since the criminal cases are sub judice. In this presentation, we shall therefore limit ourselves to the allegations of judicial implications.  At the same time, we shall call on the Nigerian Bar Association to take advantage of the ongoing purge of the judiciary to reorganize the courts. It has to be realized that we cannot successfully fight judicial corruption if we fail to stop the service of originating processes through extortion by court bailiffs, the execution of judgments through extortion by deputy sheriffs, the compilation of records of appeal through extortion by the record section and obtaining judgments of courts through extortion by court registrars.

It is often said that the court is the last hope of the common man. This is a myth in every capitalist society like Nigeria where the common man is economically disabled to access the court for redress. Within the ambit of a neo-colonial legal system the judiciary has performed fairly well. But the judiciary has not impacted on the masses of our people. We have over 40,000 poor people who are languishing in prison custody because their cases are awaiting trial in the criminal courts. All attention is largely concentrated on the High Courts and the appellate courts patronized by the elite which is constituted by a tiny fraction of the society.

The judiciary in Nigeria is yet to appreciate that it has the duty to lead the battle against corrupt practices and abuse of power or impunity in order to consolidate the democratic process. So much is expected of the judiciary due to the crucial role of the judicial arm of government in any democratic society. But in spite of the shortcomings in the legal system the judiciary has continued to uphold the rule of law to sustain the status quo in the overall interests of the ruling class. However, allegations of corruption in the judiciary are rife. According to Samson Uwaifo, a retired Supreme Court Justice, “If a judge is corrupt he is no longer a judge, he is a thief and therefore he should be treated as such, according to the law and sent to jail. The substantive issue is corruption. Is it true that these people are actually corrupt and that huge sums of money were found in their place? If that is so, the question of the procedure that taken would be a secondary thing – DSS can be punished for what they did (wrong) but focus should be on the result of the action”

In his reaction to the arrest of judges who are under investigation for corrupt practices a Senior Advocate of Nigeria, Yemi Candide-Johnson has categorically asserted that, “I believe that there is nothing uglier or more dangerous than a corrupt judge. A judge accepts an oath to administer justice without fear or favour, it is a trust and practically a holy obligation. Corruption at this level poisons public confidence in the entire system of government and threatens the peace and stability of our entire community. It is shameful and a disgrace to the memory of generations who built the Nigerian legal profession. It is vital that examples are made and I would like to see corrupt judges shackled and on their way to long prison sentences.”

I fully agree with Mr. Candide-Johnson SAN that “a corrupt judges is dangerous to the society.” In fact, judicial corruption is the worst form of corruption because judges have been empowered to exercise the power of life and death over other human beings. The judiciary is not a perfect institution. But unlike other arms of government it has devised inbuilt mechanism for removing corrupt or indolent judges. Under the Buhari administration a number of judges have beensacked for corrupt practices, dereliction of duty or abuse of office. Some have been charged to court while others are under investigation for corrupt practices. But no minister has been sacked. No legislator has lost his or seat on ground of corruption. To that extent, the judiciary has fared better than the executive and legislature in the sanitization of the political system.

I have said in another forum of lawyers that the judiciary cannot be an oasis of integrity in a corrupt society. But as prosecutors and defence counsel in corruption cases lawyers should refrain from manipulating the law to promote corruption. Asinterpreters of the law our judges should stop conferring immunity on politically exposed persons. As a defender of human rights and rule of law the Nigerian Bar Association should monitor lawyers and judges and ensure that the bad eggs among them are reported to the appropriate disciplinary bodies. The point I am labouring to make is that the legal profession can reduce the menace of corruption to the barest minimum in the society. In order to consolidate the democratic process the NBA should activate the human rights committees in its 120 branches with a view to defending the human rights of the Nigerian people.

More importantly, the NBA Section on Public Interest and Development Law (SPIDEL) should join the campaign for the enforcement of the rights of Nigerian Citizens to education, adequate health, safe environment, etc which have been guaranteed by the African Charter on Human and Peoples Rights Act (Cap A9) Laws of the Federation, LFN, 2004. Since there is equality before the law the Public Officers Protection Act and all laws which require service of pre-action notices as well as the fiat of Attorneys-General to garnishee the accounts of the governments should be abolished. Our judges should be prepared to promote public interest litigation in order to empower citizens to challenge executive lawlessness and official impunity in the country.

The Bar and judicial corruption 

In a critical assessment of the state of judicial independence in Nigeria Professor Osita Nnamani Ogbu has opined that: “In practice, however, the Nigerian judiciary has been far from being independent and impartial. The executive branch has overwhelming influence on the judiciary. Other factors that affect the independence of the judiciary include the politicization of the issue of appointment of judges and the membership of secret cults by some judges. The Nigerian judiciary is not free from the pervasive phenomenon of corruption in Nigerian society. The executive also disobeys some court orders.”

In recent time there is no bar President who has not publicly accused the judiciary of corruption of hawking justice to the highest bidders. Convinced that the disciplinary measures put in place by the NJC were not sufficiently effective, a former NBA president, Chief Wole Olanipekun SAN once called for the setting up of a panel of enquiry like the Kayode Eso panel, to inquire into the allegations of judicial corruption in the country. And while commenting on the sack of Justice Shadrack Neabosike as Chief Judge of Abia State, Dr. Olisa Agbakoba SAN, also a former president of the NBA, said that “the decision of the NJC is laudable as it is part of the ongoing cleansing process of the judiciary”. He further stated that it was important for the judiciary to be rid of all forms of forms of corrupt and fraudulent officers so as to forestall a collapse of the system.”

In spite of the condemnation of judicial corruption by bar leaders the NBA has refused to expose, name and shame corrupt judges and lawyers. Consequently, the entire legal profession is now at the receiving end. Having regard to the monetization of NBA elections and inducement of voters by bar politicians it is not surprising that the national officers of the NBA lack the moral right to fight judicial corruption. The local branches of the NBA are also involved in the racket as they have specialized in extorting money from contestants. In view of the expenses incurred in the elections bar leaders do not hesitate to sacrifice the basic objectives of the NBA in order to recoup their huge investment. The implication of corrupt NBA electoral process is that bar leaders who bribe voters may see nothing unprofessional or illegal in bribing judges. The same thing applies to lawyers who sell their votes to the bar leaders during elections. It is therefore my submission that the fight against judicial corruption has to start with credible elections of bar leaders.

However, one of the dangerous implications of judicial corruption is that cases are no longer won on the basis of industry of counsel as justice is sold to the highest bidders in many courts including the appellate ones. The prize fixed on cases is chasing many hardworking lawyers out of practice. A high court judge has just been dismissed from the bench and recommended for prosecution by the NJC for allegedly fixing a case for the sum of N197 million. However, the NJC merely recommended for retirement Justice Hassan Tsiamiya of the court of appeal who demanded N200 million from an appellant. Last week, Chief Robert Clark SAN disclosed on Channels Television that a serving governor once told a senior counsel that the fee charged by him was much lower than what the judges in an election petition tribunal had demanded.

Whereas before now legal practitioners could not meet judges in chambers for any discussion whatsoever in the absence of colleagues on the opposing side it is not uncommon these days for litigants to inform counsel that they had met and negotiated with judges trying their matters. In many jurisdictions, the lawyers and court registrars who are couriers for corrupt judges are well known to all and sundry. Instead of taking steps to flush out the judicial merchants who have turned our courts to supermarkets for the rich lawyers are falling over themselves to fix cases. Meanwhile bar leaders have specialized in verbalizing the commercialization of the justice sector.

Another area where the NBA has failed to call its members to order is the deliberate delay of the prosecution of corruption cases and pre-election matters.  In other jurisdiction all pre-election matters are tried and concluded before elections. For instance, on the day of the United States election the Donald Trump campaign organization had filed a suit praying  the courtto direct a county registrar of voters in Nevada State to preserve and segregate ballots from voting machines in four early voting areas where there were suspicions of fraud. The claimant asked for an order that the ballots cast after the designated polling hours be not “co-mingled or interspersed” with other ballots. The judge heard the arguments and delivered his judgment in view of the urgency and implication of the case.

But in Nigeria our courts have turned pre-election matters to post election affairs with dire consequences for the democratic process. Contrary to the letter and spirit of the Electoral Act the dispute over the governorship primary conducted by the PDP in Enugu state is still pending in the Supreme Court even though the term of office of the governor who won the contest expired in 2011. Equally pending in the apex court are the appeals arising from the disputes over the governorship primaries conducted about 2010 in Abia and Cross River states. Although a winner has emerged in the governorship election held in Ondo state on November 26, 2016, the pre-election legal battles over the primaries of both the APC and PDP together with possible election petitions are going to be fought in the courts throughout the tenure of the winner of the election.

In the hearing of such cases for years politicians become desperate and are ready to win the cases at all costs. To stop judicial corruption through pre-election matters the judiciary should ensure that they are heard and determined with dispatch before election are held while election petitions are concluded before the inauguration of elected governments. The NBA and other stakeholders should propose relevant amendments to the Constitution and the Electoral Act to fast track the hearing of election disputes. Delay in the trial of politically exposed persons has also exposed the judiciary to ridicule before the generality of Nigerians and the international community. It is interesting to note that the manipulation of the criminal justice system is perpetrated by the politically exposed persons with the connivance of their counsel who are members of the inner bar. The deliberate manipulation of the criminal procedure to keep corruption cases in court indefinitely was decried by the Supreme Court in the case of Dariye v FRN where Ngwuta J.S.C held:

“It is not the duty of learned counsel to resort to motions aimed principally at delaying or even scuttling the process of determining whether or not there is substance in the charges as laid. In my view, this motion is a disservice to the criminal process and a contemptuous lip service to the fight against corruption. The tactics employed here is only one of the means by which the rich and powerful cripple the criminal process.

There are cases which the accused develop some rare illness which acts up just before the date set for their trial. They jet out of the country to attend to their health and the case is adjourned. If the medical facilities are not available locally to meet their medical needs it is only because due to corruption in high places the country cannot build proper medical facilities equipped with the State of art gadgets. There should be no clog in the process of determining whether or not a person accused of crime is guilty irrespective of his status in the society…

Lawyers are engaged to espouse the case of their clients. It is a monopoly and they should bear in mind that like all monopolies, there conduct are subject to strict rules of accountability for adherence to set ethical standards. They can fight the cause of their clients but as lawyers they must act within the rules regarding ethical conduct. They owe a duty to their client but they owe a higher duty to a higher cause-cause of justice .”

However, the Federal High Court has taken advantage of the Administration of Criminal Justice Act, 2015 to accelerate the trial of criminal matters including corruption cases. In the last one year, the EFCC has secured about 200 convictions. This was why I was vehemently opposed to the recent call of the NBA leadership that the EFCC be divested of prosecutorial powers. Politically exposed persons have found that they can no longer manipulate the criminal justice system, at least in the Federal High Court. The appellate courts have also refused to suspend any trial by granting stay of proceedings. Interim orders of forfeiture of assets of criminal suspects are being granted while some of the suspects have been remanded in prison custody by judges and magistrates to facilitate investigation. Very soon, the fat cats are going to be convicted and jailed for looting the treasury.

The NJC and judicial corruption

Upon a critical analysis of the arrest of judges I have blamed the NJC and NBA for the cover up of cases of judicial corruption which led to the mess that the legal profession has found itself. Many petitions alleging misconduct against senior judges and members of the NJC have been suppressed. A Chief Judge has just been removed for collecting N10 million from a litigant at a book launch. But nothing has happened to another Chief Judge who raised over N40 million from a similar book launch. Is he a sacred cow because he is a member of the NJC? In defending the arrested judges the NJC claimed that it had treated all complaints of misconduct against judges with dispatch. The Civil Society Network Against Corruption, a civil society organization challenged the claim by referring to not less than 10 complaints which were not treated by the NJC.

Notwithstanding that it is incongruous for judges who are on trial for corrupt practices to continue to sit in judgment over other people the NJC said that it was not going to suspend the suspects. I had to remind the NJC that in 2006, it requested the SSS to investigate the members of the Akwa Ibom election petition tribunal who were alleged to have collected bribes to pervert justice.  Before the investigation was ordered the NJC had suspended the judges. In April 2014, I was the only lawyer who condemned the removal of Justice Peter Agwumagu as chief judge of Rivers state and his suspension before investigation was ordered by the NJC? Thisday published my article on the illegality of the removal. The NJC wrote a rejoinder to the article. The NJC was  also reminded that it suspended Justice Ayo Salami as President of the Court of Appeal before the investigation of the allegations levelled against him by the then Chief Justice. Justice Aloysius Katsina-Alu.

It was at that stage that the NJC accepted the request of the NBA President, Mr. A.B. Mahmoud SAN to suspend the judges from performing judicial functions until they have been absolved of the allegations of corrupt practices.  However, the NJC has refused to consider the serious implications of the conflicting judgments and orders of judges of the federal high court and other judges of coordinate jurisdiction. Hence, the federal high court and the Ondo State High Court have just issued conflicting orders with respect to the governorship candidate of the PDP in the November 26 election.

The NBA has 5 members in the NJC who are usually members of the inner bar even though the Constitution provides that at least one of them shall be a Senior Advocate of Nigeria. Through its members in the NJC the NBA has continued to allow corrupt and incompetent lawyers to be appointed judges without a whimper. The comments on the character of candidates applying for appointment to the higher bench which are compiled by the various branches of the NBA are usually ignored by the NJC with the connivance of the NBA representatives. Instead of insisting on the appointment of judges on the basis of merit and integrity the NBA has never kicked against the politicization of the process of appointment. If we want an incorruptible judiciary the bar and bench should address the mode of appointment of judges, security of tenure as well as the working condition and retirement benefits of judges.

A former Chief Justice, Lady Justice Alooma Muktar put some measures in place to curb the excesses of itinerant judges. For instance, no judge could travel out of the country without a written permission of the NJC. Even a judge could not leave his/her duty post without the approval of the Chief Judge. Appointments to the higher bench were substantially based on merit.  As she would not allow the appointment of incompetent judges one of the heads of court refused to set the engine in motion for filling the vacancies in his Court.  But as soon as she completed her tenure it became business as usual in the judiciary. It is on record that the unprecedented impunity of the last three years encouraged the primitive accumulation of wealth by the judges who are currently embroiled in the miasma of corrupt practices.

In another move to protect corrupt judges the National Judicial Council has barred publication of allegations of misconduct against judicial officers or employees of the judiciary. Part of the policy reads: “It shall be the policy of the judiciary on complaints that allegations of misconduct against judicial officers or employees of the judiciary shall not be leaked or published in the media” and if and when it leaks, that would be the end of the investigation. Instead of gagging the media the NJC should be advised to learn from the NBA. Apartfrom advertising the names of lawyers being investigated the trial of indicted ones is conducted publicly by the legal practitioners disciplinary committee of the NBA. Even though the proceedings are covered by the media heavens have not fallen!

In any case, a petition against a judge may be leaked to the media without the knowledge or consent of a petitioner. In other words, it may be leaked to the media through the secretariat of the NJC or at the court where an accompanying affidavit has been sworn and deposited or by the respondent judge or through a member of the investigative panel or through any other member of the NJC.  Since any petition published in the media is liable to be dismissed by the NJC the respondent judge may leak it to the media if he/she has no defence to the allegation contained in the petition. The NJC ought to realize that it is the constitutional responsibility of the media to promote public accountability   and transparency in public institutions. Since the NJC is a public institution it cannot gag the press from reporting its activities. The NJC lacks the power to restrain the press from discharging the constitutional duty conferred on it by section 22 of the Constitution.  Since the petition against a judge is a public document it shall be made available to any Nigerian journalist pursuant to section 4 of the Freedom of Information Act. Furthermore, the NJC cannot prevent a petitioner from imparting information to the media in respect of a petition against a judge as it is an exercise of the fundamental right to freedom of expression guaranteed by section 39 of the Constitution and article 9 of the African Charter on Human and Peoples Rights Act.

Corruption encouraged to fight back by Government

President Buhari has said that corruption is fighting back. This is not unexpected given the enormous resources in the soiled hands of the politically exposed persons who have been investigated or charged to court by the Economic and Financial Crimes Commission and the Independent Corrupt Practices and Other Offences Commission. However, the federal government is needlessly encouraging corruption to fight back by frustrating the trial of some of the suspects. In fact, the government has continued to play into the hands of the suspects by refusing to comply with the orders of courts which have admitted them to bail.

Col. Sambo Dasuki (rtd), a former National Security Adviser, has refused to make himself available for trial on the ground that the SSS has illegally revoked the orders of three courts admitting him to bail. The government has also ignored the declaration of the ECOWAS Court to the effect that the further detention of Col Dasuki is illegal and unconstitutional. As if that is not enough, the federal government has refused to comply with the order of the Federal High Court to the effect that Commodore Umar Mohammed (rtd) be admitted to bail. Consequently, the Federal High Court has adjourned the arraignment of the retired military officer until the order admitting him to bail is complied with by the government.

When Olisa Agbakoba SAN was the President of the NBA a ledger was opened in the secretariat for recording judgments that were not been complied with by the governments. Even though many judgments were recorded in the ledger the NBA did not take any step to enforce them.  We cannot claim to operate under the rule of law if judgments of courts are treated with disdain by governments with the connivance or silence of Attorneys-General. The payment of judgment debts has been frustrated in many instances by Attorneys-General who refuse to give fiat to judgment creditors.Since the judgments of courts are binding on all authorities and persons the NBA should sanction Attorneys-General who fail to ensure compliance with the judgments of courts by the governments.

I cannot but concur with one of the leading lights in the legal profession, Chief Folake Solanke SAN who has rightly observed that “It is contrary to the rule of law that anyone or any institution should disobey a court order. Every lawyer must see that his clients obey court orders. It is a professional duty which must not be compromised for any client. A ‘person’ who disobeys a court order today may need the due process of law tomorrow to redress a wrong or an infraction of his right. The ambivalence of disobedience is exposed when a favourable court order is obeyed promptly and an unfavourable order is disobeyed.”

The NBA should wake up from its lethargy in the face of incessant disobedience to court orders. If the NBA under the presidency of Alao Aka-Bashorun could boycott courts over the flouting of a single court order by a military junta the NBA cannot afford to remain indifferent to executive lawlessness under a democratic dispensation.  As a matter of urgency, the NBA ought to prevail on the federal government to comply with the following court orders:

1.The orders of the Federal High Court,  the High Court of the Federal Capital Territory and the ECOWAS Court  directing the federal government to release Col. Sambo Dasuki(Rtd) on bail.

2.The order of the Federal High Court admitting Commodore Umar Mohammed (Rtd) to bail.

3.The order of the Federal High Court mandating the federal government to publish the amount recovered from those who looted the public treasury.

4.The order of the Federal High Court directing the SSS to release Sheik Ibraheem Elzakzaky and his wife from illegal custody.

5.The orders of the Federal High Court directing the federal and state governments grant autonomy for the judiciary.

6.The order of the Federal High Court directing the federal government to restore the Peoples Bank.

7.The order of the Federal High Court directing the federal government to establish the Nigerian Education Bank.

8.The order of the ECOWAS Court directing the federal government to ensure that every Nigerian child is given access to Universal Basic Education.

Criticisms of judgments of Nigerian Courts

In December last year, I had cause to criticize the granting of stay of proceedings by the Supreme Court in the case of Saraki v FRN . My criticism was based on section 306 of the ACJA 2015 which has prohibited the suspension of the hearing of a criminal case. Upon the publication of my views a retired judge called to warn me that I could be stripped of the rank of SAN for my impetuosity. The counsel to the appellant threatened to commence contempt proceedings against me. The then NBA president, Mr. Austin Aleghe SAN apologized publicly on our behalf and announced that we were going to be sanctioned for subjecting the decision of the apex court to criticism. I reacted by daring both Messrs.Daudu SAN and Aleghe SAN to file contempt proceedings and initiate disciplinary proceedings against me for exercising my freedom of expression guaranteed by the Constitution and the African Charter on Human and Peoples Rights.

Contrary to the misleading impression that it is contemptuous to criticize the judgments of courts, it is not uncommon for judges of appellate courts to criticizethemselves through dissenting opinions. In Awolowo v Shagari Eso J.S.C. held that it was illogical to fractionalize a state and therefore said that 2/3 of 19 states was 13. In Abacha v The State Ejiwunmi J.S.C. held that disagreed with the majority judgment of the Supreme Court which had said that the appellant had no case to answer in a charge of conspiracy to murder. In justifying his minority decision his lordship said that, ‘”To hold otherwise is in my respectful view, to submit to the tyranny of the majority in its capricious interpretation of settled principles laid down.” In Buhari v Yaradua Oguntade and Muktar J.J.S.C. could not agree with the majority decision. As far as they were concerned, a valid election could not be based on illegal ballot papers.

If members of the apex court could deliver dissenting opinions it is not out of place to criticize the judgments of the Supreme Court. In welcoming the review of the judgments of courts Justice Jackson of the United States Supreme Court once remarked: “We are not final because we are infallible. We are infallible because we are final”. David Pannock  Q. C. has said that “Judicial independence was not designed as, and should not be allowed to become, a shield for judicial misbehaviour  or incompetence  or a barrier to examination of complaints about injudicious conduct on apolitical criteria.”

Justice Khrishner Iyer, a retired Justice of the Supreme Court of India once said that, “Judges are humans though they are ordinarily of high standard and rarely commit serious solecisms, fundamental flaws and grave goofs. Justly, therefore, even High Bench pronouncements do desiderate decisional review and correctional reversal. So we must abandon the populist superstition of judicial supremacy or curial papacy. Judges are under the Constitution, not over it. It becomes necessary to make a thorough scrutiny of the moral, materialist and value-based opinions of the ‘robed brethren’ which stultify established principles of justice and violate constitutional vision.”

In Blackdurn (No. 2) Ex parte R. v. Metropolitan Police Lord Denning said:

“Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right.”

Having regard to many contradictory judgments of our appellate courts and the conflicting orders of high courts of coordinate jurisdiction it is dangerous not to review the judgments of our judges on a regular basis. When the Supreme Court held that the use of card readers was illegal I thought it was like saying any judgment typed by computer was illegal. But when I found that the apex court did not advert its mind to the Electoral Amendment Act 2015 which has empowered the INEC was use card readers. In the circumstance, I was compelled to criticize the judgments of the apex court in an article titled “The Legal Validity of Card Readers”.

Even though the Supreme Court has ruled that any legal process not stamped and sealed by the NBA is illegal the judgment ought not to be accepted as the gospel truth because the attention of their lordships was not drawn to the fact the NBA is a voluntary society of lawyers.  The legal implication is that lawyers who are not members of the NBA and other citizens who may want to handle their cases without the services of lawyers cannot be required to seal and stamp their documents with the imprimatur of the NBA. Since the Constitution recognizes the fundamental right of litigants to defend themselves court processes filed by him cannot be stamped and sealed if they decide not to engage the services of legal practitioners who are members of the NBA. After all, the late Professor Ayodele Awojobi, a mechanical engineer, prepared and filed all his cases and argued them from the High Court to the Supreme Court.

Conclusion

A few months ago, the Presidential Advisory Council on Corruption headed by the renowned Professor Itse Sagay organized a seminar in Abuja on corruption in the judiciary.  I was privileged to have taken part in a symposium along   with the Chief Justice of Ghana, Lady Justice Georgina Theodore Wood. She was the cynosure of all eyes at the occasion because 22 corrupt judges had then been sacked in Ghana on grounds of corruption and abuse of office. At that seminar I warned Nigerian judges not to allow the Ghanaian experience to repeat itself here. In Ghana, the legal profession did not move against corrupt judges. So an investigative journalist, Mr. Anas Aratemew Anas inquired into judicial corruption and caught over 100 judges and judicial staff on tape demanding or receiving bribes. In order to prevent a situation whereby the reform of the judiciary would be externally instigated I was compelled to plead with the NJC to move speedily against the few bad eggs and lawyers who are corrupting the Nigerian judiciary. Unfortunately, my plea was ignored.

However, permit me to conclude this presentation by referring to Justice Krishner Iyer’s book on Law Versus Justice where wrote:

“Central to a democracy of rights and remedies, for people who had suffered irremediable wrongs from lawless law makers and callous, cruel Authority and influential brackets of society, was a judiciary upright, independent, equally accessible, activist and creative and geared to the promotion of social justice revolution.”

About the author

Omojuwa

In the beginning...Let there be Light http://en.wikipedia.org/wiki/Japheth_J._Omojuwa