Decidedly, the judiciary is in the vortex of confusion provoked by the unconstitutional suspension of the Chief Justice of Nigeria, Walter Onnoghen, from office by President Muhammadu Buhari. After weeks of legal brinkmanship, the Code of Conduct Tribunal issued a bench warrant for the arrest of the suspended CJN. He eventually appeared before the tribunal, sitting in Abuja, to face charges of false declaration of assets in violation of the code of conduct for public officials.
On the strength of the controversy Onnoghen’s travails have generated, 20 concerned Senior Advocates of Nigeria recently demanded an urgent root and branch reform of the Bench to save it from self-immolation. According to the SANs, there are underlying factors, which have perpetuated the loss of confidence in the judiciary that should be critically examined to pave the way for the much-needed reforms. “Certain facts are hardly contestable. There is a widespread perception that there is corruption in the judiciary and this perception is supported by anecdotal evidence. Unscrupulous litigants and some complicit lawyers, including some Senior Advocates of Nigeria, procure judgements and orders by corrupt means,” they argued.
This is the crux of the matter. A major canon of the rule of law is that it is the judges that judge themselves. Strict enforcement of “self-regulation” in judicial discipline protects the independence of the judiciary and ensures that ethics and values of the legal profession are preserved. But this raises the question about how to balance accountability against the principle of judicial independence. Undoubtedly, the erosion of ethics in the bench and bar is emblematic of the dysfunction of the National Judicial Council and the Nigeria Bar Association. Indiscipline and corruption have so soiled the temple of justice that the Administration of Criminal Justice Act 2015, heralded as a profound reform, has since been rendered ineffective.
But instead of resorting to jungle justice in curbing judicial corruption, however, the challenge should be how to amend the constitution to ensure that rogue judicial officials have no hiding place. A well functioning government, with the citizens’ best interest in mind, requires not only the rule of law, but also an independent judiciary that enforces the law impartially and equally. For long, a culture of judicial impunity has gone bizarre. One of the most troubling threats to our nation’s system of justice has been judges who, through incompetence, bias or outright corruption, prevent the wronged from getting a fair hearing in our courts.
The NJC seems to be a divided house, loudly expressed in Acting CJN Ibrahim Muhammad’s acceptance of his new role. In fact, his was an act of violence to the constitution against the background of the fact that Onnoghen’s removal did not comply with Section 292 and other provisions of the 1999 Constitution, which expressly guarantee the independence of the judiciary.
The country needs judges whose oath of office would remain sacrosanct. Integrity and courage are two virtues that define a judge. In developed democracies, a judge who soils his robe does not get a slap on the wrist, but is put on trial and, upon conviction, jailed, to serve as a deterrent. But here we have “billionaire judges,” whom the late Kayode Eso, a Justice of the Supreme Court, denounced; without forgetting the lamentations of a former President of the Court of Appeal, Ayo Salami, that some retired jurists despicably serve as conduits for bribes to judges.
There must be a paradigm shift – throwing bad eggs in the legal profession and the bench into jail for sanity to prevail. Consequently, there should be a thorough review of the process for the appointment of judges and criteria that should be met beyond the 10-15 years post-bar experience. The present system has failed Nigeria. The conditions for appointing SANs also deserve a second look. Abuse of the process has led to many lawyers calling for the title to be scrapped. The role some silks play in corrupting judges demands that such honour be reserved only for legal practitioners with proven integrity and distinction.
The critical role the NJC should play in a reformed judiciary entails that its chairman, who is also the CJN, should be above board. With 20 out of 23 members of the council beholden to him by virtue of having appointed them, this does not bode well for self-regulation and discipline. A CJN who abuses his powers should be dealt with by the NJC the same way other judges who misbehave are treated.
Unfortunately, this was not so when the late CJN, Aloysius Katsina-Alu, interfered in the governorship election petition matter in the Court of Appeal, Sokoto, in 2010. He arrested the judgement as it was about to be delivered. The Court of Appeal under Salami’s leadership was appalled by such daring, unconstitutional and reckless abuse of power. He opposed it but lost his job in the process. The NJC, as the guard of the judiciary, did not bat an eyelid over such gross misconduct, perhaps, intimidated into silence by the awesome powers of the council’s chairman.
The internal disciplinary control of the NJC for self-regulation should be subjected to a rigorous scrutiny. It is clear that the provision of Paragraph 20 of Part One of the Third Schedule to the 1999 Constitution that outlines the composition of the NJC needs overhauling as it arrogates too much power of appointment of other NJC members to the CJN.
He alone appoints five retired Justices from the Supreme Court or Court of Appeal; five Chief Judges of States from among the Chief Judges of the states and of the High Court of the Federal Capital Territory, Abuja in rotation to serve for two years; one Grand Khadi from among Grand Khadi of the Sharia Courts of Appeal to serve in rotation for two years; one President of the Customary Court of Appeal from among the Presidents of the Customary Courts of Appeal to serve in rotation for two years and five members of the NBA on the recommendation of its National Executive Committee. In addition, the CJN appoints two non-lawyers, who in his opinion are of unquestionable integrity.
Where law rules, no one should be above it. While the judiciary must be insulated from executive shenanigans, judges who soil their robes should be punished in accordance with the rule of law. The Telegraph of London reports that more than 75 British judges were disciplined for misconduct last year with some banned after being jailed for crimes as serious as blackmail and manslaughter.
To restore the magisterial aura and respect to the Bench and the legal profession, all the stakeholders should join forces. The constitution should be reviewed to boost the accountability of judicial office holders by making disciplinary processes more transparent.
