The dust raised by Monday’s judgment in an appeal filed by Justice Hyeladzira Nganjiwa of the Federal High Court is yet to settle.
In a lead judgment delivered by Justice Abimbola Obaseki-Adejumo, the court struck out a charge filed by the Economic and Financial Crimes Commission (EFCC) against the judge.
The graft-fighting agency, in a 14-count charge, accused the judge of corrupt enrichment and giving false information contrary to Section 82 (a) of the Criminal Law of Lagos State.
Justice Nganjiwa had appealed against a ruling of the Lagos State High Court.
He urged the appellate court to determine whether in view of the constitutionally guaranteed doctrine of independence of the judiciary, the lower court is right to conclude that the executive arm of government, acting through the EFCC, can directly prosecute a sitting judge without first following due process as provided in the Constitution, by referring the matter by way of petition to the National Judicial Council (NJC).
Justice Nganjiwa’s lawyers, led by Robert Clarke (SAN), contended that although judicial officers were subject to prosecution, they must first be subjected to NJC’s disciplinary jurisdiction before such an officer can be arraigned for criminal prosecution.
Besides, the lawyers said the Constitution guarantees the separation of powers, therefore, NJC’s powers to discipline judges cannot be interfered with by other arms.
But, the EFCC argued that the doctrine of judicial immunity does not protect serving judges against criminal proceedings being instituted against them.
The commission claimed Justice Nganjiwa engaged in extra-judicial acts which contravene the law, therefore, he was charged.
The prosecutor said Section 158 of the Constitution does not grant any judge immunity from criminal prosecution and did not create any condition that must be met before a judge can be prosecuted.
A human rights group, the Access to Justice (A2Justice) faulted the verdict.
In a statement by its Executive Director Joseph Otteh, the group disagreed with the judgment.
It said: “The ruling has grave implications for the ability of law enforcement agencies to function freely without hindrance and seriously infringes on the doctrine of separation of powers and the rule of law, that recognises that each branch of government is independent of the other and should function independently, without one branch seeking the permission of the other to execute the duties of its department.
“The decision essentially says that law enforcement agencies must not execute their responsibilities when it involves judicial officers until the NJC has, in essence, given them permission to do so.
“The decision will have negative derivative consequences as well. It would mean that, at the level of the states, no magistate’s, Khadi, Area or Customary Court judge can be investigated by law enforcement agencies until the State Judicial Service Commission (SJSC) has first ‘stripped’ such a ‘judicial officer’ of his or her ‘judicial standing’.
“The same applies to court employees, who are under the disciplinary control of State Judicial Service Commissions.
“It would also mean that no member of the police force could be investigated or prosecuted for any crimes committed in the course of discharging their functions until the Police Service Commission has first stripped them of their ‘standing’ as police officers.
“The same too applies for public officials whose agencies retain a disciplinary body with powers of oversight on their conduct.
“The constitutional basis or justification for this decision is, with respect to the Court of Appeal, contestable.
“Even the NJC itself, as we understand it, has not asserted an exclusive or preeminent right to discipline erring judicial officers first before anti- corruption agencies can do their work.
“It is important to remember that not all sanctions of the NJC result in the stripping of the ‘judicial standing’ of a judge and judges can be ‘warned’ only, with nothing further recommended against them.
“Additionally, the NJC does not ‘remove’ a judge from his or her office. It can recommend the removal of judges, but it is ultimately the head of an executive branch (the President or State Governor) that does the removal of judicial officers.
“Until that is done, the NJC has adopted the practice of ‘suspending’ that judicial officer. So, what the judgment may mean is that unless a judge is effectively removed from office by the President or Governor, law enforcement agents cannot do their work. And where a Judge is not so removed, their work cannot also be done.
“The judgment of the Court of Appeal will not advance efforts to reform the judiciary and fight the vices that have persistently undermined it.”
But, a Senior Advocate of Nigeria (SAN) Abiodun Owonikoko said he was amazed at some critics of the decision.
He said: “They create the false impression that even if the faulted gestapo approach were to hold, there was ever any way that conviction or any form of sanction would have been possible outside of court trial.
“The EFCC and DSS only have powers to investigate; their power of prosecution is merely delegated. That prosecutorial power can be taken over at any stage by the Attorney-General.
“So, what really is the issue that subjecting judicial officers to pre-prosecution disciplinary process of NJC will promote corruption or indiscipline?
“It’s a very sound reasoning that will redraw and restore the limits of executive incursion and overreach on
“The judgment accords with the proper, purposive construction of the separation of powers scheme under the constitution.
“The fact that bodies established by ordinary Acts of parliament like EFCC and DSS were surreptitiously undermining and sidestepping the NJC is bizarre.
“They have now arrogated the power to directly summon, interrogate and arraign serving judicial officers on matters that border on the discharge of their judicial function – sometimes matters where those agencies are in fact litigants.
“We hope the judiciary will, however, celebrate the judgment with an even higher sense of responsibility. They should not see it as blank cheque for immunity against their duty.
“They should uphold the integrity of their calling and continue to earn the respect and trust of the public and the other arms of government. Good enough the incumbent CJN has hit the ground running and is swiftly guiding the NJC to live up to its mandate of delivering a trustworthy disciplined and respected judiciary.
“Some judges were recently retired compulsorily by NJC to public acclaim even when the executive failed to secure conviction against them in court. It shows the NJC system works and should be insulated m undue executive second guessing and interference.”
Fashanu, leaning on Owonikoko’s submission urged the EFCC to approach the apex court is dissatisfied with the judgment.
Activist-lawyer Ebun-Olu Adegboruwa said he welcomed the “landmark judgment”.
According to him, the decision “is sound in law and logic” adding that it would help to assert the “much desired independence and autonomy of the judiciary.
“In recent times, judicial officers have been under mindless attack by the executive, arising from the expressed disaffection for the third arm of the realm, by the President, who has stated severally that the judiciary is his headache.
“The hallowed democratic principle of separation of powers requires that the three arms of govt should be independent of each other but work together for the effective administration of the realm.
In the present dispensation, the executive has totally hijacked and captured the Legislative and Judicial arms, both of which have not been allowed to function effectively and independently, as anticipated by the Constitution.
“It is, therefore, a welcome relief indeed that judicial officers will no longer be under the fear and tremor of intimidation of the executive, in the discharge of their official duties.
“A judge should be free to deliver his judgment according to his conscience and according to law, without fear or favour, without affection or ill will.”
He added that by virtue of Paragraph 21(b) and (d) of the Third Schedule to the 1999 Constitution, the NJC is to exercise the power of disciplinary control over all judicial officers.
“Thus, where there is an allegation of corruption against a serving judicial officer, such should be tabled before the NJC first, as it is a matter arising from the discharge of official duties by the judge. “Otherwise, judges will become liable to do the bidding of the executive, once it is possible to just pick up a judge and lock him up, whenever he delivers a judgment that is not favourable to the executive.
“However, this judicial immunity should not be a blanket one; it should only be limited to matters involving the discharge of judicial duties.
“Consequently, a judge involved in the common crimes of murder, rape, etc, all committed outside the performance of his judicial duties, should still be held accountable in the normal course of criminal justice administration.
“So, I salute the rare courage of the justices of the court of appeal, who have taken this landmark step to free our nation from dictators and fascists in political garb and I commend the boldness of My Lords, for rescuing the judiciary from the choking harassment of the executive.
“Since time does not run against the prosecution of offenses in law, the government can always commence prosecution against any judicial officer found wanting after the NJC has concluded its own statutory roles in the discipline of such judicial officer.
“I also commend the EFCC for its rare display of courage in confronting the menace of corruption in our land. The proper step in this case is to appeal against the judgment, in line with the best traditions of respect for the rule of law and due process, and cease to attack judges in the media for the discharge of their official duties. In it all, Nigeria will be the better for it,” Adegboruwa said.
Verdict tragic, self-serving, says Sagay
Presidential Advisory Committee Against Corruption (PACAC) Chairman Prof Itse Sagay (SAN) yesterday described the Court of Appeal judgment striking out the charge against Justice Hyeladzira Nganjiwa as a “tragedy”.
He said judges do not have immunity from prosecution for corruption.
Sagay described the judgment as “a negative step”, adding that it was self-serving and not back by the Constitution or any law.
He disagreed with the appellate court’s position that NJC must first discipline a judge before anti-graft agencies can step in.
The law professor said: “That is purely self interest, self protection. There’s nowhere in the Constitution where that is stated. Yes, there is provision for disciplinary measures by NJC over judges, but there’s nowhere in the Constitution that judges are given immunity from interrogation, arrest and prosecution. Only the President, governors, the Vice President and deputy governors are given immunity.
“This is a creative judgment. In other words, the judges are making law, although they have no power to do that – taking over the power of the legislature in order to protect themselves from the consequences of their own misconduct. That’s what has happened. Judges are now a special breed of Nigerians.
“If you have a civil servant who can be interdicted in the civil service, is there any law that says he cannot be prosecuted? There’s no difference between a judge and a civil servant in this regard. They have their own internal cleansing system.
“The NJC and the civil service have in-house provisions for dealing with their members. That does not affect the overall authority of the state. It’s contained both in the Constitution and in our criminal law. So, what they have done is not in the law. It is a new law made by themselves. It is wrong because they have tken over the duties of the legislature.
“It’s just to protect themselves from the consequences of misconduct and it’s a tragedy. And it’s an aspect of the underdevelopment of Nigeria and its rule of law process.” Sagay said.
Sagay said the examples cited by the Court of Appeal about the Presidency setting up a panel to probe members of the executive before the EFCC stepped in, was inapplicable.
The PACAC chief explained: “Those do not apply. The fact that the Presidency decided to set up a panel does not mean that EFCC could not have gone after them, at all. It doesn’t mean that. All the examples they have given are wrong. There’s no example that can suspend the application of the Constitution and our criminal laws. None.
“There are many occasions in which NJC was reluctant to discipline its men who have committed crimes, who have been corrupt or engaged in misconduct. For instance, in the case of Justice (Adeniyi) Ademola, before he was arrested, he was cleared by the NJC. There are tens of such cases, which NJC turned down petitions in which there were concrete reasons to believe that they (the judges) did something wrong.
“Are they saying the state should fold its arms and be looking on, because they’re reluctant to do the right thing?
“I think the judgment is completely against the rule of law and it’s against our whole administration of criminal justice system, because it promotes a group of people above the law. And it’s a negative step.”