Corruption, the Judiciary and Public Trust
On the 7th and 8th of October 2016, agents of the Department of State Security Service (DSS) raided the homes of 7 Judicial Officers alleged to be involved in corruption. Huge sums of money were allegedly recovered during the raids. Since the raids, some other judicial officers have been invited by the Economic and Financial Crimes Commission on allegations of corruption. There has been a national debate on the propriety or otherwise of the actions of the DSS and EFCC. Some persons have argued that the action of the DSS and EFCC is unconstitutional; some others insist that the action is within the law. This presentation is not about the propriety or otherwise of the action of these law enforcement agencies. There is a lot of literature on the subject in the public domain. My concern is the impact of corruption or the perception of corruption in the Judiciary.
Corruption and the Nigerian judiciary
The Judiciary is commonly and rightly referred to as the last hope of the common man. This pre-supposes that it guarantees equal access to Justice and equity; and equally ensures that the rights of citizens are adequately accommodated, and judgements handed down in accordance with the dictates of the law and facts presented to the Court. The judiciary is the stability of democracy. When the judiciary breaks down; democracy is in jeopardy. The Judiciary can function effectively if it is independent, well-funded, courageous, unbiased and proactive. Unfortunately, this is not the case in Nigeria; the Nigerian Judiciary has found itself entangled in allegations of corruption.
A recent survey by the Economic and Financial Crimes Commission and National Bureau for statistics with the support of United Nations Office on Drugs and Crimes found thus “Nigerian Courts of law receive the biggest bribes from citizens among all institutions in which corruption is rampant” the report stated further “though bribery in the judiciary was less frequent than in many agencies, it required the biggest transactions.” Honourable Justice Eso of blessed memory had cause to lament on happenings at the Election Petition Tribunals where he stated that Judges handling electoral matters become billionaires overnight. This view was corroborated by Maj. Gen. Ishola Williams (Rtd), Chairman of Transparency International (TI) in Nigeria, who claimed that election tribunals were becoming goldmines for Nigerian Judges. He stated thus: “All the Judges are just using the election tribunals to make money. All those who had gone through election tribunals are Millionaires today. I challenge them to say NO.” Chief Afe Babalola, SAN, Chairman Chartered Institute of Arbitrators of Nigeria lamented thus: “Time was when a lawyer could predict the likely outcome of a case because of the facts, the law and the brilliance of the lawyers that handled the case. Today, things have changed and nobody can be sure. Nowadays, politicians would text the outcome of the judgment to their party men before the judgment is delivered and prepare their supporters ahead of time for celebration.
What has gone wrong?
The answer to this question has been well articulated by Mr. Joseph Otteh, Executive Director,Access2Justice in his Memorandum to the Nigerian Bar Association. Mr. Otteh Identified:
- Public perception–‘There has been a longstanding perception by the public, including members of the legal profession/Judiciary and the government that the Judiciary is ineffective, or at best, not doing enough in fighting corruption within its body. This will be of much concern to a government that says it wants to break the back of corruption and President Buhari has said that a few times. This was, therefore, basically an accident waiting to happen in many ways. As an illustration, the Special Assistant to the President on Prosecution, OkoiObono-Obla, said, following those raids that he NJC “… has been accused of being half-hearted in fixing complaints filed by members of the public” The raids on Judges reflect some frustration with the Judiciary’s lack-lustre or laid-back approach to fighting corruption within its ranks therefore’.
- Judiciary’s lack-lustre or laid-back approach to fighting corruption within its ranks. Traditionally, the judiciary’s response to public accusations of corruption has largely been defensive: its leadership has often characterized the problem as the stain of a few bad eggs, using, as a frame of reference, the overall percentage scale of substantiated cases of corruption established against Judges. So while the public was insisting stridently that corruption was spiraling out of control in the Judiciary, the Judiciary perspective was that this was all idle calumny, since no one was showing any physical or empirical proof that the Judiciary was getting more corrupt or was unable to contain the problem
The role of the National Judicial Council
The National Judicial Council is the body constitutionally empowered to appoint and discipline judicial officers in Nigeria. It is listed as one of the Federal Executive bodiesin Section 153 (1) (i) of the Constitution of the Federal Republic of Nigeria 1999. The composition and powers of the NJC are contained in Part 1 of the Third Schedule to the Constitution. Until the unfortunate clash between Hon. Justice Kastina – Alu(then Chief Justice of Nigeria) and Justice Ayo Salami(then President of the Court of Appeal) not many Nigerians took time to consider the working of the National Judicial Council. But recent happenings have again put the NJC on the spot light. Some persons have argued and rightly so that the National Judicial Council is institutionally biased in favour of judges. It has treated corruption as an internal problem and failed to make corrupt Judges accountable to the same standards applicable to others, such as criminal prosecution for corruption. It has also been canvassed and rightly so that the National Judicial Council deliberately ignores obvious signs of corruption. There is also a feeling that the National Judicial Council procedure for discipline is overly formalistic and legal, making its extremely difficult for complainants to come forward. All these have conspired to want to erode public confidence in the Judiciary.
Solutions! What can be done?
The National Judicial Council needs to move swiftly to stem the erosion of public trust in the Judiciary. One way is to become decisive and proactive in its dealings with Judicial Officers. The burden of proof for allegation of corruption against judicial officers should be higher than that of ordinary citizens. It should be beyond perception of doubt and not beyond reasonable doubt. The work of a judicial officer is hinged on perception of fairness and justice, if that perception of fairness or justice is eroded, the entire system collapses.
I am very excited that the Chief Justice of Nigeria, Justice Mahmud Mohammed has started the process of restoring confidence with the recently launched National Judicial Policy and inaugurated Ethics Committee aimed at providing oversight, ensuring integrity and independence of the Nigerian judiciary. I have some reservation about a part of the judicial policy that bars publication of allegations of misconduct against judicial officers or employees of the judiciary. I believe it will not help the effort at restoring the image of the Judiciary. The Judiciary should be the vanguard for access to information.
I also believe the NJC needs to be reformed. I have often wondered what would happen if the CJN who is chair and appointing authority for the NJC is accused or arrested for corruption. What would happen? The present constitution of the NJC has shown by recent events to be unsatisfactory. Clause 20 of the Third Schedule to the 1999 Constitution provides for a Council of 24 members made up of serving Judges and Justices, two laymen and 5 legal practitioners. Of the present 24 members of the Council, five are ex-officio members and five are nominees of the Nigerian Bar Association. All the other 14 members are nominated and appointed by the Chief Justice of Nigeria who is also Chairman of the Council. These extensive powers of appointment of members of the Council by the Chief Justice of Nigeria can be abused easily by a CJN who may appoint friends and relations. A Council dominated by appointees of the CJN and Chairman of Council is almost certain toplay his master’s voice for the CJN. This completely robs the Council of its independence and even free will. Accordingly it is recommended that only past members of the NJC, retired judicial officers and legal practitioners of proven track records of honesty and integrity be appointed into the NJC.