No, NJC Decision to Recall Judges is Flawed – Otteh

By Joseph Otteh

 Background

The National Judicial Council (NJC) at its 82nd meeting which ended June 1, authorised the recall of six Judicial Officers earlier suspended from judicial duties, following their indictment or investigation for criminal offences. Those to be recalled are: Hon. Justice John Inyang Okoro of the Supreme Court, Hon. Justice Uwani Aji of the Court of Appeal; Hon. Justice Hydiazira Nganjiwa of the Federal High Court; Hon. Justice Musa H. Kurya of the Federal High Court; Hon. Justice Agbadu James Fishim of National Industrial Court and Hon. Justice Adeniyi Ademola of the Federal High Court. The NJC noted that only three Judicial officers have been prosecuted, and one of them has been acquitted and discharged. The Council has implied that there is no further justification for the other referenced Judges to stay recused from performing their official functions.

Concededly, there are a few instances where the NJC’s decision find some justification: the failure of the government to formally bring charges against some of the judicial officers accused of corruption after many months of investigation, would be taken to mean that, in spite of all the grandstanding and boisterous defence of its “sting” operations of October 2016, the government has nothing on them at the end of the day, notwithstanding that it had tarred everyone with the same brush. For the future, the government must reflect and learn from its misjudgements and forwardness, when it comes to investigating allegations of corruption against Judges. No judicial officer should have to go through the terror of being so publicly humiliated, in the absence of strong and compelling justification.

NJC Decision Flawed in Other Cases

However, not all the cases fall into this category; some judges have been charged to court and, in some cases, proceedings are still continuing against them. For this category, the NJC’s en-bloc recall of the Judges on its current list, papers over the cracks. One of the judges on its list is currently charged before the Code of Conduct Tribunal, even though he has not been formally arraigned at this time. Some others are named in several other indictments against persons they are said to have acted in concert with.

We think the NJC did not address the situation of the recused Judges with the kind of nuance, context and imaginativeness that scenario called for. The kinds of evidence elicited during the trial of some of the judges on the list, are extremely unsettling and informed observers must wonder how the Judiciary can sidestep the queasiness of asking Judges named as beneficiaries of questionable transactions, to resume their duties. The NJC says there has been an acquittal on the charges brought in one case. Yes, but a criminal conviction or acquittal, is not the only parameter for deciding questions of a person’s suitability for continuing in judicial office.

If the NJC wants to reform the Judiciary, it must look at what the evidence received in trial against some of the judges, reveals about those Judges and the deep impressions they create of the weaknesses of the Nigerian Judiciary. Must the Council wait for a criminal conviction to act? The Judiciary has a Code of Conduct for judicial officers: whether or not the provisions of that Code have been broken, is a legitimate and expedient inquiry that the NJC needs to pursue, quite apart from whatever is the outcome of a criminal trial prosecuted by third parties.

Let us remember that our Judiciary is going through a great crisis, a turmoil on a scale fit for the declaration of a state of emergency; how can the Judiciary not seize this moment to upturn its house, break down the hinges of the old order, and explore every means possible to re-define itself? The urgency of now, to borrow a fitting phrase, would include ensuring that the Judiciary never stands accused again, of indulging in corruption.

So Much Work Remains to be Done

The NJC needs to do a lot more to demonstrate that that it is taking us to a new future, and not returning to the status quo ante, or our accustomed state of “normal”. The events of October 2016 are a watershed liner in our judicial history, but it is not clear whether those events have inspired any far-reaching changes: the recall of a number of Judges on the NJC’s list will certainly not help make the case that we have re-calibrated the intensity of our fighting spirit against corruption, or that we are now tightening the noose around those issues. We think that, post October 2016, the NJC should have explored new frontiers for expanding its oversight on Judges’ conduct – it could have instated stronger policies to regulate financial transactions involving Judges, introduced financial disclosure requirements, defined limits on how much money can be retained outside banks, established whistle blowing protocols within the Judiciary, etc. etc.

Furthermore, the NJC could also address, through policy-making, how the Judiciary can better protect its independence and safeguard itself against illicit efforts by others to interfere with its autonomy. Some published statements of some of the judges affected by the October 2016 “sting operations”, aver that senior government officials reached them in their homes, and offered significant inducements to them, in order for them to rule in their favour at the hearing of some election cases in the Supreme Court.

Joseph Otteh, Director, Access to Justice