Place of judiciary in Buhari’s corruption war

The fight against corruption has remained a herculean task to various successive governments over the years. Non has  been able to tackle the menace that has permeated all the spheres of the country’s life.

The focus has been on the judiciary. The fight against corruption in the judiciary  did not start today. Only recently, President Muhammadu Buahri had while declaring open  the 2015 Annual General Conference of the Nigerian Bar Association (NBA)  in Abuja, tasked lawyers  on the need to take the ethics of the profession very seriously.

He said: “lawyers who will not frustrate the course of justice, even though they defend their clients with all legitimate means and resources; Nigeria needs ethical lawyers who always keep the end of justice in mind and will never sacrifice the integrity of the legal system to cover the misdeeds of their clients, no matter how lucrative the brief may be .

“The fight against corruption is in reality a struggle for the restoration of law and order. Corruption and impunity become widespread when disrespect for law is allowed to thrive in society. Disrespect for law also thrives when people get away with all sorts of shady deals and the court system is somehow unable to check them. Ability to manipulate and frustrate the legal system is the crowning glory of the corrupt and, as may be expected, this has left many legal practitioners and law courts tainted in an ugly way”.

The call was necessary because by its statutory obligations, the judiciary plays a pivotal  role in the fight against corruption.By virtue of the provisions of the Constitution, all cases are referred to the court for adjudication. Invariably all corruption allegations, investigations and cases are referred to the court.

For the Judiciary to play its role in the fight against corruption therefore, it must be independent and free from any form of interference in terms of funding and political manipulation. Above all, it must be free from corruption.

Sadly, the nation’s judiciary, like any other sector is not immune from corruption. It is corrupt and heavily too. To demonstrate how deeply corruption has eaten into the heart and soul of the judiciary, the Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed made a shocking revelation that no fewer than 64 of the 1,020 superior court judges had been sanctioned in the past five years for corruption.

The CJN who made the revelation at a conference with the theme: The fight against corruption: the way forward”, organised by the Nigerian Bar Association (NBA) Anti-corruption Commission, said petitions were immediately investigated through internal procedures established by the National Judicial Council (NJC). Those found culpable, he said, were disciplined in accordance with established procedures, including being relieved of their jobs.

He, however, lamented that much as the judiciary was doing its best to eliminate bad eggs, the public, which has been criticizing the institution, seemed to be encouraging corruption.
Justice Mohammed argued that corruption persists because public officials and other persons who benefit from it are never investigated and prosecuted, when the judiciary disciplines its own. This is a worrisome dimension  because the honour of the judiciary is daily atrophied by the conduct of some of those entrusted with the dispensation of justice. And despite sanctions imposed on erring judges, some judicial officers have become neck-deep in the game of subversion of justice.
Cleaning the augean stable

For sometimes now, the prevalence of corruption in the nation’s judiciary has been a major concern to stakeholders, particularly the Nigerian Bar Association, NBA and the top echelon of the justice sector. Successive Chief Justices of Nigeria, CJN and the NBA presidents have vowed to rid the  institution of justice of the vice with little success achieved.

A retired Chief Justice of Nigeria, CJN, Justice Dahiru Musdapher had in his efforts to clean up the rot in the judiciary constituted a 28-member judiciary stakeholders committee comprising all retired Chief Justices of Nigeria to examine holistically, the rot in the judiciary and come up with clinical solutions capable of returning the nation’s third arm of government to its path of glory and honour.

The committee was headed by another former Chief Justice of Nigeria, Justice Muhammad Lawal Uwais.  In his inaugural speech during the meeting, Musdapher  drew the attention of the stakeholders to the quality and timeliness of the trial process, procedural inefficiencies, poor infrastructure, poor conditions of service for judicial and non–judicial officers, declining intellectual quality and reasoning content of delivered judgments, corruption, as well as the effects of an unrestrained quest for political power.

The NJC hammer
The NJC is the body charged with the responsibilities of welfare and discipline of erring judicial officers. The NJC under Muktar 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. In all, the following judges have fallen under the hammer of the NJC for corruption related cases.

Olotu: On February 26, last year, the NJC announced the compulsory retirement of Justice Gladys Olotu of the Federal High Court. In a statement, its Acting Director, Information, Soji Oye, said Justice Olotu breached judicial procedure by delivering a judgment in a case with Suit No. FHC/UY/250/2003, 18 months after the final address by all the counsel in the suit, contrary to the constitutional provisions that judgment should be delivered within a period of 90 days.
Inyang: Also, last year, the NJC recommended the compulsory retirement of Justice U. A. Inyang of the High Court of the Federal Capital Territory (FCT) for misconduct. Inyang was found to have “included in his judgment, references to the garnishee proceedings, which came after judgment had been delivered on
December 20, 2011. His Lordship also included the name of the counsel to Federal Road Maintenance Agency, FERMA, Chief Chukwuma Ekomaru (SAN) who came into the matter after the judgment of December 20, 2011 was delivered.

Achibong: In February 2013, the NJC recommended the compulsory retirement of Justice Charles E. Archibong, who was then serving at the Federal High Court, Lagos, following investigations conducted by the Council on series of petitions levelled against him.
Some of the allegations were that he dismissed a grievous charge against an accused without taking his plea and refused to release the Certified True Copy of his Ruling to lawyers.

He was also accused of issuing bench warrant on some Peoples Democratic Party (PDP) officials for contempt even when the counsel who was directed by the Court to serve them filed an affidavit that he had not been able to serve the contempt application. Archibong was said to have also made unfounded and caustic remarks on professional competence of some Senior Advocates of Nigeria and exhibited glaring procedural irregularities which showed that he did not have a fullgrasp of the Law and Court procedure.
Naron: NJC, in February 2013, recommended the compulsory retirement of Justice Thomas D. Naron, then of High Court of Justice, Plateau State following its findings that there were constant and regular voice calls and exchange of text messages between the judge and one of the lead counsel for one of the parties to the suit in the Osun State Gubernatorial Election Tribunal, contrary to the Code of Conduct for Judicial Officers in Section 292 (1)(b) of the 1999 Constitution.

Ex-Abia Acting CJ, Nwanosike: The NJC in July 2013 announced the compulsory retirement of the Acting Chief Judge of Abia State, Justice Shadrack O. E. Nwanosike over alleged falsification of his date of birth.
NJC said it found that Nwanosike falsified his date of birth, which invariably affected his retirement age. It directed him to proceed on compulsory retirement.
Justice Musa Anka: In 2011, NJC ordered an immediate sack of Justice Musa Ibrahim Anka, of the Zamfara State High Court, having found him guilty of gross misconduct (bribery and corruption). It found that the judge received bribe from one Zubairu Abdulmalik in order to deliver judgment in his favour.
Anka before then had been on suspension by the council since July 2010, following a petition written against him by Zamfara State Directorate of State Security Service (DSS), alleging that he received bribe from Zubairu Abdulmalik in order to deliver judgment in his favour.
Agumagu: On March 26, 2014, the NJC rose from its general meeting with a decision to suspend  President of the Rivers Customary Court of Appeal Justice Peter Agumagu for allowing himself to be sworn-into office as the state’s substantive Chief Judge.
The NJC refused to recognise him as the CJ on the ground that the normal procedure for the appointment of a CJ was not complied with. He challenged the decision at the Supreme Court, but three appeals he filed were dismissed. NJC suspended him after saying it did not recommend him to former Governor Rotimi Amaechi for appointment as the Chief Judge. Agumagu was, however, dissatisfied with his suspension. He consequently filed an application for a judicial review of the NJC’s directive suspending him.
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 and cannot leave their stations without the authorisation 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 SAN has discovered that the game is up. The CJN has asked judges who cannot deliver at least four judgments in a year to be prepared to quit the judiciary as the nation cannot continue to keep indolent judges on the bench. She has directed that sitting of courts should commence at 9am 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 NBA will monitor and drive the reform agenda of the CJN in order to restore the confidence of Nigerians 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. Also five lawyers were removed from the roll of legal practitioners for having been convicted of sundry acts of professional misconduct.
Why corruption persist in the judiciary
The most worrisome of these challenges in the fight against corruption apart from political will of the leadership, is the nation’s criminal justice system in Nigeria, which is so weak and cumbersome. Its application has really caused a lot of set back and impediments in Nigeria’s criminal prosecution procedurals.
Immuntity clause
Other factors include, weak mutual legal assistance which normally arise through some of the following: location of the evidence in the criminal case in foreign jurisdiction, difficulty and unwillingness of witnesses to come forward for the trial, illicit proceeds moved and laundered in an international banking system through increasingly obscure means, the slowness of the mutual legal assistance process.
Immunity against prosecuting certain categories of political officeholders is another major impediment in the fight against corruption in Nigeria. Section 308 (1) of the 1999 constitution of the Federal Republic of Nigeria, puts restrictions on legal proceedings, arrest or imprisonment, or the compelling of appearance by process of court, against the President, Vice President, Governors and Deputy Governors.
The implication of this immunity clause is that, even when it is alleged, investigated and confirmed that these official have engaged in corrupt practices, it is impossible to arrest or prosecute them until after their tenures, when the illicit funds or assets have either dissipated or laundered.
Slow judicial process
The legal infrastructure and the slow judicial process, is another major setback in our criminal justice system that is causing impediment in the fight against corruption. The accused persons and the counsel take advantage of every available criminal justice as that of the United Kingdom e technical loophole, to prolong the prosecution, thereby subjecting the appellate process to abuse. With this it  frustrates  the entire process. It has also been pointed out by legal professionals that, our criminal justice system, which we inherited from England and Wales, favours the accused person and puts a high burden of proof on the accuser with a transparency ranking of 78 per cent.
Threats to lives of witnesses
Threats to lives of witnesses and absence of witness protection programme, is another major setback in our criminal justice system . According to an EFCC Report, not less than 19 key officers of EFCC have been assassinated, as at 2013.
This is no surprise considering the risky nature of their work, and the low protection nature of their operations exposed them to grave risk. As a result of this, witnesses and operatives are really not enthusiastic to pay the supreme prize that might be attached to the task of prosecuting criminal trials.
Coupled with this, is the inconsistency and uncertainty of judicial process. The pronouncements of courts of coordinate jurisdiction, on certain matters relating to the prosecution of corruption cases have been inconsistent or even contradictory. This has been a major setback that complicates, prolongs and stalls criminal prosecution.
Inadequate funds
The fight against corruption is further militated by inadequate resources are another big challenge militating against fighting corruption in the country, especially when it comes to cross-border corruption. It is very expensive retaining the requisite team of experts for the prosecution of persons accused of committing cross-border corruption. Cross-border crime requires huge expenses to finance the investigation, as it involves sending teams across borders to investigate and seek foreign collaboration, this certainly requires huge amount of resources.
Calls for special courts
The body language of President Muhammadu Buhari’s administration is tilted in favour of setting up a special courts strictly for the purpose of prosecuting corruption cases. The courts if so established would be for the sole purpose of expeditious trial of corruption and related cases that have for long been suffering due to a combination of factors, such as court congestion and the complicity of some unscrupulous members of the bench and the bar to scuttle high profile corruption cases.  In 2012, former President Goodluck Jonathan muted the idea of special courts . He did that   while swearing in former Chief Justice of Nigeria (CJN), Justice Mariam Aloma Mukhtar.  His words “Our citizens complain of delayed trial particularly in cases of corruption, terrorism and other matters of serious concern. These complaints have led to frequent calls for special courts or designation of special judges to handle them with the required experience and speed… the entire country is in agreement that justice delayed is justice denied”.
Though Justice Mukhtar courageously saddled herself with the task of cleaning the Augean’s stable – corruption and related vices – that had greatly eroded public confidence in the nation’s judiciary, she tactically ignored Jonathan’s suggestion, saying instead, that “there is no need for a special court. A judge, two or three in the states, can be designated to take care of that…”
Unfortunately, no special arrangement, to public knowledge, was made to address the intractable problem of delayed prosecution of corruption cases, despite how pervasive and monstrous corruption had become in the land; and government’s avowals of its resoluteness to fight same. Everybody is waiuting for the current leadership of the judiciary to provide a new direction in the corruption war.