The Anti-Corruption War in the Judiciary: How Far? How Well? Paper delivered by Mr Femi Falana (SAN) at the presentation of the Law Journal of the Law Students Society, Faculty of Law, University of Ilorin, Kwara State, in honour of Chief Folake Solanke (SAN) During the screening of the Chief Justice designate, Hon Justice Aloma Mukhtar by the Senate on July last year, some Senators took her to task on the disturbing rate of corruption in the judiciary. Without any hesitation whatsoever, she was quick to admit that the situation “is very bad and I am saddened by it. I will try as much as possible to ensure that as for the bad eggs that are there, there will be a cleansing by the NJC based on petitions” . It is doubtful if the Senate members were convinced that she could muster the courage to rid the Judiciary of corruption. But based on her impressive performance at the screening session coupled with her solid credentials the entirety of the senate members unanimously confirmed her appointment. Having had promises of reforms made by political leaders and judicial officers broken in the past Nigerians took Justice Muktar’s undertaking to reform the judiciary with a pinch of salt. But since she took over the leadership of the nation’s judiciary she has repositioned the National Judicial Council to take up the urgent task of restoring confidence in the judiciary. Thus, in less 10 months of her tenure the CJN has made it clear to judges and Senior Advocates of Nigeria (SAN) that it is no longer business as usual. Disturbed by the loss of confidence in the judiciary by Nigerians, the Chief Justice of Nigeria, Justice Aloma Mukhtar has resolved to take remedial steps to restore the image of the judiciary. The National Judicial Council under her leadership held an emergency meeting on February 21, 2013 to review the pending cases of judicial misconduct against some judges. At the end of its deliberations, the NJC recommended the compulsory retirement of two judges namely, Justice Charles Archibong of the Federal High Court and Justice Thomas Naron of the Plateau State High Court for judicial misconduct. According to a statement by the NJC, Justice Thomas Naron, the Chairman of the dissolved Osun State Election Petition Tribunal was found to have regularly communicated with ex-Governor Olagunsoye Oyinlola’s counsel-Otunba Kalejaiye (SAN) through telephone and SMS messages while the election petition filed by Ogbeni Rauf Aregbesola was being tried by the Tribunal. With respect to Justice Archibong it was established that he dismissed the 26-count charge against Mr Erastus Akingbola, former Managing Director of the defunct Intercontinental Bank without taking his plea; made caustic and reckless remarks on the competence of four Senior Advocates of Nigeria and refused to release a certified true copy of his ruling to the lawyers; convicted some PDP leaders for contempt when the contempt application was not served on them, gave judgment in a case commenced by original summons without written addresses filed by parties. Owing to such litany of errors the NJC concluded that Justice Archibong did not have any grasp of the law and procedure. Another judge, Okechukwu Okeke J. of the Federal High Court was given a stern warning three weeks to his retirement from the Bench. Mohammed Talba of the Federal Capital Territory High Court has been placed on 12-month suspension while the Chief Judge of the same court, Justice Lawal Hassan Gumi has opted to resign instead of waiting for the investigation of the allegations of misconduct leveled against him. The Legal Practitioners Privileges Committee headed by the Chief Justice has suspended a Senior Advocate of Nigeria sine die while the NJC has referred another one to the NBA for discipline on account of allegations of profession misconduct. To prevent judges from embarking on foreign trips at the expense of their judicial duties no judge can travel out of the country any longer without a written permission of the Chief Justice while judges cannot leave their stations without the authorization of the appropriate heads of courts. The NJC has warned judges to stop compromising themselves by issuing orders or giving judgments that cannot be defended on the basis of the available facts and the applicable law. With the sanctions imposed on erring judges a strong message has been sent to judges and lawyers that it is no longer business as usual. Even the corrupt cabal that took over the award of the rank of Senior Advocates of Nigeria has discovered that the game is up. The Chief Justice has asked judges who cannot deliver at least four judgments in a year to be prepared to call it quits with the judiciary as the nation cannot continue to keep indolent judges on the bench. She has directed that courts the sitting of courts should commence at 9 am instead of the usual practice whereby many judges walk in leisurely to court at noon without any justifiable reason. It is hoped that the heads of courts and the Nigerian Bar Association will monitor and drive the reform agenda of the Chief Justice in order to restore the confidence of the Nigerian people in the courts. It is gratifying to note that the National Disciplinary Committee of the Body of Benchers has been reactivated to deal with erring lawyers. Last week, five lawyers were removed from the roll of legal practitioners for having been convicted of sundry acts of professional misconduct. The NBA leadership under deserves commendation for this feat. It is however hoped that the NBA will beam its search light on senior lawyers who have been linked with serial violations of the rules of professional ethics. In a country where impunity has become the order of the day the forces of darkness that have profited maximally from the judicial rot are understandably not comfortable with the courage and determination of the Chief Justice to clean out the angean stable in the judiciary. They have therefore decided to resort to subtle blackmail with a view to turning back the hand of the clock. But having lived above board like Ceaser’s wife the Chief Justice should forge ahead with the purge which is going to enhance the image of the judiciary and lead to the restoration of the confidence of Nigerians in the institution. Since the principalities that are behind the destruction of the judiciary are stupendously rich and well connected they are going to continue to fight dirty. In other words, the CJN and the NJC should expect a sustained attack from the forces of retrogression as corruption has a way of fighting back. However, the NJC should strive to give adequate time and opportunity to judges accused of misconduct with a view to confronting the allegations made against them. The manner of appointment should be reviewed to prevent lawyers of questionable character or who lack the knowledge of law from finding their way to the bench. The reports and comments of the Nigerian Bar Association on all short listed candidates for the bench should henceforth be given serious consideration because the body is well suited to recommend those among its members that are qualified to be appointed judges. The NJC should refrain from applying illegal laws and policies capable of frustrating the elevation of competent lawyers to the higher bench. Happily for the legal profession and the country, concerned judges and progressive lawyers have declared their unalloyed solidarity with the CJN. A few days ago, Justice Akanbi spoke glowingly of the Chief Justice when he said “Corruption, talking frankly, is endemic. It has gone to a level that it has affected the judiciary. There was a time you would never talk anything against the judiciary. I am glad to say this is a great moment when Maryam Aloma Muktar, the Chief Justice of Nigeria, is doing quite a lot in fighting the menace. We should support her in fighting the battle to see that we get a better Nigeria. I know Muktar, she served under me. She is a courageous woman and a core professional with high integrity and commitment to uprightness and justice. She is a person who abhors corruption and is determined to rid the country of corruption. Nigerians should support her in her efforts to sanitize the judiciary and rid Nigeria of corruption.” However, a foremost legal practitioner and a former President of the Nigerian Bar Association, Chief Wole Olanipekun (SAN) has called for the setting up of a judicial commission of inquiry to purge the judiciary of alleged corruption. According to the learned Senior Advocate “unless and until a commission of inquiry is set up to look into all these corrupt and bribery allegations against judges and lawyers alike, where names will be named and particulars supplied, where reservations will be expressed openly, where instances will be given etc I doubt if our judiciary will ever be cleansed”. With profound respect, there is no basis whatsoever for the setting up a commission of inquiry which is going to usurp the constitutional functions of the NJC. In the case of Chief Gani Fawehinmi v General Ibrahim Babangida it was held by Uwais CJN (as he then was) that “though the Tribunal of Inquiry Act is an ‘exiting law’, its application is limited and has no general application” outside the Federal Capital Territory. The effect of the judgment is that President Jonathan lacks the vires to institute a commission of inquiry to probe judges in the Federal and State public service. In any case, the National Judicial Council is currently dealing with all allegations of corruption and other complaints of misconduct raised against judges while the Nigerian Bar Association has revitalised its own disciplinary machinery to bring erring lawyers to book. In the circumstance, there is no legal or moral justification to opt for the establishment of a judicial commission of inquiry to probe corrupt judges. It is pertinent to note that in spite of the on-going efforts to sanitize the judiciary a few judges have continued to issue frivolous and illegal ex parte orders and deliver judgments that are totally devoid of justice. Last month, a Federal High judge in Lagos prohibited the police from arresting, investigating and prosecuting a criminal suspect accused of economic sabotage. The trial judge went as far as quashing the report of the police investigation into the crime. A few days later, a judge of the Abuja judicial division of the Federal High Court issued an ex parte order restraining the EFCC from proceeding with the investigation of the same suspect over his alleged involvement in the fuel importation scam. It is hoped that the NJC will move speedily to put an end to such abuse of judicial powers by a few judges who are in the habit of conferring illegal immunity on some rich criminal suspects. Conclusion While saluting Chief Justice Aloma Muktar for the on-going cleansing in the judiciary she should ensure that effective measures are put in place to institutionalize the reforms. This is of urgent importance as she is due to retire late next year. The vested interests who have sworn to destroy and discredit the judiciary should not be made to believe that what is unfolding before our eyes is a passing phase. It is therefore pertinent to call on the Nigerian Bar Association to collaborate with the NJC to save the legal profession from perdition. In particular, the NJC should mobilise our judges to deliberately extend the frontiers of justice to the majority of Nigerian citizens who have no access to the temple of justice due to poverty, ignorance and fear. If our judges are not prepared to re-event the wheel like their Indian counterparts have done by making socio-economic rights justiciable through judicial activism they should be prepared to discard the reactionary doctrine of locus standi in order to allow public interest litigators to enforce the very many welfare laws that have been enacted by the Parliament but which are not breached with impunity by the government. Finally, members of the legal profession who fail to support the reforms and the internal cleansing in the judiciary may be exposing Nigerian judges to the revenge of litigants . Those who think that English judges have always been models of judicial integrity may wish to read David Pannic’s book, Justice, where he writes: “Some judges have received more than their just deserts for injudicious behavior. In the thirteen century, Andrew Horn alleged that in one year (four centuries earlier) King Alfred caused forty-four judges to be hanged as homicides for their false judgments. In 1381 a mob pursued the Lord Chancellor, Simon de Sudbury, and cut off his hand. One year later, Lord Chief Justice Cavendish was killed after being apprehended by a mob and subjected to a mock trial in which he was sentenced to death. In 1688 the infamous judge Jeffreys, by then the Lord Chancellor, went into hiding when James II fled the country. Jeffreys was captures in Wapping when he was recognized in a tavern by a man who had been a dissatisfied litigant in his court. (The man had won his case but Jeffreys had been rude to him and kept him waiting). Jeffreys was put in the Tower of London, where he dies in 1689.”
Posted on: Mon, 01 Jul 2013 12:35:23 +0000
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