In the concluding part of this two-piece report by OLADIMEJI RAMON, prominent voices in the legal profession blame alleged “esprit de corps among judges” or “protectionist verdict” for the inability of government to secure the conviction of judges put on trial for alleged corruption
Before his demise on March 7, 2021, Justice Sylvester Ngwuta returned to the Supreme Court to resume his job as a jurist after many months of hiatus during which he was away on “technical suspension” facing trials for alleged corruption before the Federal High Court in Abuja and the Code of Conduct Tribunal, Abuja.
Both trials ended prematurely, without the courts determining the charges, following the December 11, 2017 pronouncement of the Court of Appeal that a serving judge cannot be prosecuted in court for bribery and corruption unless the judge has first been probed by the National Judicial Council, found guilty and dismissed.
Similarly, Justice Hyeladzira Nganjiwa, in favour of whom the Court of Appeal delivered the landmark verdict, is back on the bench.
He is number 32 out of the 75 judges listed on the website of the Federal High Court and sits at the Lokoja division.
It is the same for Justice Mohammed Yunusa, who occupies number 23 on the list.
However, Justice Rita Ofili-Ajumogobia is missing on the list, despite that the NJC’s decision recommending her for dismissal has been quashed by Justice Binta Nyako’s verdict of November 28, 2019.
On the website of the National Industrial Court, Justice James Agbadu-Fishim is listed as a former judge. The NJC had in a press release dated October 4, 2018 announced his recommendation for dismissal from the bench.
Justice Yunusa’s peculiar return
Justice Yunusa’s return journey to the bench, after about a four-year hiatus, is peculiar.
Following a petition against him to the NJC by a group, Civil Society Network Against Corruption, the NJC announced on July 18, 2016 that it found Justice Yunusa guilty of professional misconduct, suspended and recommended him to the President for compulsory retirement from the bench.
Born on November 14, 1963, Justice Yunusa’s expected year of retirement is 2028, when he will be 65 years old.
While on suspension, awaiting the decision of the President on the NJC’s recommendation for his compulsory retirement, Justice Yunusa was put on trial by the EFCC on January 17, 2018.
In the course of his trial before Justice Sherifat Solebo at the Lagos State High Court in Ikeja, Justice Yunusa applied to the NJC for a review of the disciplinary action taken against him.
The NJC, by a letter dated December 23, 2020, lifted the suspension on Justice Yunusa and reinstated him.
With his reinstatement, the coast was clear for Justice Yunusa to benefit from the Court of Appeal’s decision in Justice Nganjiwa’s case.
So, he approached Justice Solebo, before whom he was being tried by the EFCC, and demanded to be discharged.
On January 25, 2021, Justice Solebo discharged him, ruling that “The 1st defendant (Justice Yunusa), having been recalled on the recommendation of the NJC, is a sitting judicial officer of the federation, hence immune from criminal proceedings.”
Displeased with the decision, the EFCC, through its counsel, Mr Wahab Shittu, immediately appealed the ruling, contending that it was unconstitutional for Justice Solebo to declare that Justice Yunusa, as a serving judge, enjoys immunity from prosecution for alleged corruption.
Also disagreeing with the Court of Appeal’s decision in Nganjiwa’s case, Shittu argued that Section 153(1), Paragraph 21(b) of Part 1 of the Third Schedule of the Nigerian Constitution “does not give rise to the interpretation that a criminal allegation against a judge must be first disposed of by the NJC before criminal proceedings against a judicial officer can be initiated by the state.”
He said, “The NJC is constitutionally vested with administrative and disciplinary powers against judicial officers while law enforcement agencies are vested with investigative and prosecutorial powers for criminal offences.”
Lawyers divided
Lawyers have been sharply divided in their opinions on the decision of the Court of Appeal in Nganjiwa’s case, upon which all other cases of corruption against judges have collapsed.
While many leading voices in the legal profession have hailed the decision of the Court of Appeal as the correct interpretation of the law, others, however, hold the strong view that the judgment was nothing but an effort by the judiciary to shield its own, in what some described as “esprit de corps”.
Surely, Chief Robert Clarke, octogenarian Senior Advocate of Nigeria with over four decades of active practice experience, who helped Justice Nganjiwa to secure the verdict of the Court of Appeal, is strongly convinced about the correctness and constitutionality of the verdict.
In an interview with our correspondent about three months after the contentious verdict, Clarke disclosed that many of his colleagues were displeased with him and “challenge me that I am representing corrupt judges.”
He said he, however, told them: “No, I am doing it in defence of the rule of law.”
Clarke said, “The rule of law is a cornerstone of democracy and when operating the rule of law, you must follow due process. When the executive wants to prosecute a judge, who is still a sitting judge in the court and decides to go and carry him from the courtroom and take him to court, that is not the rule of law; that is not due process because the constitution is very clear.
“Can the EFCC go to the Army barracks and arrest a Major General when the constitution provides that under the Army law, this is the duty of a court martial? Any officer that walks into the Army barracks to arrest a military man will find himself thrown into the prison there because there is a rule of law, that if a military officer does anything wrong, the first body to discipline him is the military tribunal.
“It’s the same thing with judges. The constitution says all judges are under the control of the NJC. All the discipline of judges is under the NJC, that’s what the constitution says. And the constitution interpreted what misconduct is. So, why should the government go and carry a judicial officer who is still in service. There’s separation of powers.”
Similarly, 92-year-old legal titan, Aare Afe Babalola (SAN), had in his intervention shortly after the raid on judges’ homes by the DSS in October 2016, said, “I am of the view that the Constitution requires that any infraction by judges be firstly investigated and resolved by the NJC to the exclusion of any other body or authority.
“Aside from the fact that this is what the Constitution requires, arresting serving judges without prior sanction of the NJC presents some very unique problems. If the judge is arraigned and granted bail, what impediment is there to prevent him from continuing to sit as a judge pending the determination of the allegations against him?
“That the DSS acted as it did on the grounds that it was conducting an investigation or a ‘sting operation’ as it described it was therefore a clear usurpation of the constitutional powers of the NJC.”
Also speaking with our correspondent, another Senior Advocate of Nigeria, Mr Babatunde Fashanu, submitted that: “ To bring erring judges to book has to be done through or in conjunction with the National Judicial Council, the body recognised by the constitution to discipline judges.”
Furthermore, Fashanu disagreed with the view that corruption cases against judges put on trial failed because fellow judges protected them.
“The fact that judges charged to court for corruption or related offences were freed shows that the prosecuting bodies did not do their home work properly or the judges were wrongly accused.
“If a case is well presented and prosecuted, it is difficult for anyone to shield anyone as what transpires is in the public domain which includes highly qualified legal critics,” Fashanu said.
He insisted that “better results would have been obtained if the NJC was allowed to be in charge as it ought to be,” instead of the judges being arraigned in court.
But 81-year-old Prof Itse Sagay (SAN), another strong voice in the legal circles and Chairman of the Presidential Advisory Committee Against Corruption, is firm in the belief that the corruption cases against the judges’ collapsed because judges were shielding their colleagues.
In an interview with our correspondent, Sagay submitted: “There is this esprit de corps. Regardless of what you have done, once you are in the judiciary, you are untouchable.
“I’m not going to mention names, but we had a case where all the evidence was there, and this time it was not an issue of the matter not being referred to the NJC but of a judge who sat and rationalised all the things his colleague in the dock did. If we do not break this esprit de corps issue, judicial corruption will not be solved.”
Faulting the Court of Appeal’s decision in Nganjiwa’s case, Sagay fumed: “What the judiciary did was the most terrible thing. Money was actually found in the home of some of them and it was reported. Some had even admitted to the offence, but suddenly they (judges) devised a new principle of law that before you can try any member of the bench, he or she has to be reported to the NJC. That means if the matter has not gone to the NJC, no matter how guilty that person is, you cannot touch them, so they were all discharged on the grounds that the report was not first made to the NJC. I don’t think that would help at all.”
Also, activist lawyer, Mr Jiti Ogunye, described the Appeal Court’s decision in Justice Nganjiwa’s case as “protectionist.”
Ogunye said, “Anybody in Nigeria, including judges, can be investigated. That’s the law.
“The Nganjiwa and FRN case decided by the Court of Appeal says that before you will proceed against a judge, the NJC must discipline the judge first. But, with due respect, that’s not the law. And that is why when that judgment was rendered we called it a protectionist judgment – that the court was trying to grant immunity to judges when there is no provision of the constitution granting immunity to judges. The law that we know is that judges can be investigated and prosecuted.”
Similarly faulting the judgment, a senior lawyer, Mr Ajibola Oluyede, said it wasn’t surprising because judges “have a lot to protect.”
He said, “No judiciary with such a brazen case of corruption will say let’s go through the NJC first. A criminal is a criminal; it doesn’t matter where you are. In many other countries, even Presidents face prosecution. So, to now try to put yourself on a pedestal, it won’t last, because ultimately someone is going to come around and he’s going to push that kind of judgment into the dustbin, where it belongs.”
In an opinion piece titled, “The court that killed accountability,” activist lawyer and former Chairman of the National Human Rights Commission, Prof Chidi Odinkalu, also flayed the judiciary for “normalising corruption and abuse of power.”
Odinkalu accused the judiciary of “putting judges beyond the realm of accountability.”
Odinkalu said, “Justifying itself, the Court of Appeal observed: ‘If a judicial officer commits theft, fraud, murder or manslaughter, arson and the likes, which are crimes committed outside the scope of the performance of his official functions, he may be arrested, interrogated and prosecuted accordingly by the state directly without recourse to the NJC.’
“With these words, Nigeria’s Court of Appeal says collecting bribes is within the scope of a judge’s official functions? By the way, if the Court of Appeal had bothered to read Nigeria’s Code of Conduct for Judicial Officers, it would have found that Rule 1(1) of the code requires all judicial officers to respect and comply with the laws of the land…”
Touching on the case of Justice Yunusa, Odinkalu sneered: “The NJC reinstated him as a judge. How lawyers can appear before him and call him ‘My Lord’ knowing that he is forever tarnished is another matter.”
Also, a former National President of the Committee for the Defence of Human Rights, Mr Malachy Ugwumadu, submitted: “The judiciary has a self-preservatory agenda or inclination…It’s a padi-padi (esprit de corps) thing.”
Corruption in judiciary: Myth or reality?
In the report of a survey titled, ‘Nigeria Corruption Index: Report of a pilot survey 2020,’ the Independent Corrupt Practices and Other Related Offences Commission asserted that at least N9.4bn in bribery exchanged hands in the judicial sector between 2018 and 2020.
In the report made public December last year, the ICCP said, “Demands are made by court officials, including judges, while bribe offers and payment are made by lawyers and litigants.
“The total amount of money reported by the justice sector respondents as corruptly demanded, offered and paid between 2018 and 2020 was N9.45bn.”
The ICPC, which is headed by a Senior Advocate of Nigeria, Prof. Bolaji Owasanoye, explained that the surveyed captured the views of 901 justice sector players, including 638 lawyers, 124 judges and 25 court clerks and registrars.
According to the ICPC report, 9.9 per cent of the lawyers interviewed admitted giving bribes, especially in connection with electoral cases.
Incidentally, despite being lawyer to some of the judges put on trial by the Buhari regime, Clarke lamented that corruption exists in the judiciary.
In the interview with our correspondent, he said, “Let me be honest with you, I’m not happy with the judiciary today. There are some of us, we know that there is corruption in the judiciary, how deep the corruption is, for those of us who work within the court and within the judiciary, we know it ourselves.
“As I said, corruption has permeated every facet of our society, the judiciary (is) not exempted. It is a bad day in Nigeria when a lawyer who has a good case and is a good lawyer goes to court and on the day of the judgment, judgment is given to the other party. It’s happening but that does not mean that overall the judiciary has failed. The judiciary has not failed. It’s only individuals; the system is still strong, you can get justice. But certain individual judges have spoilt it by undermining the rule of law.
“My dream judiciary is one where, as a lawyer, I am given a brief, I go to court, I argue it and I know I have done well to come out and be sure that no intervening force will disrupt that judgment, by somebody coming to bribe the judge. It happens, we cannot deny it.”
A former Chairman of the Nigerian Bar Association, Ikeja, and publisher of Squid Magazine, which exposes corrupt practices in the judiciary, Mr Adesina Ogunlana, told our correspondent that, “The perception (of corruption in judiciary) is right. It’s not only that there is corruption; corruption is responsible for many things. It (administration of justice) is slow, inefficient and it’s more of legalism and less of justice in most of the situation.
“The legal profession really needs to reinvent itself. The issue of corruption has spread even to the higher level of the bench.”
Ugwumadu, on his part, told our correspondent that the issue of corruption in the judiciary is not a matter of perception but the reality.
Ugwumadu said, “You are concerned about perception but I am concerned about the fact of corruption in judiciary. I think the starting point is to face the question frontally and that is to say, it is not only about the perception; it is that even the judiciary itself has had the cause to express concern about the tendency and incidences of corrupt practices in the judiciary. And in particular, I reference Honourable Kayode Esho’s report in relation to election petition tribunal judges and Justices, and he made very profound statements that clearly established that there are concerns at that level with respect to that issue (corruption).”
The NBA President, Mr Olumide Akpata, alluded to the existence of corruption in his address at the ceremony marking the commencement of the Supreme Court’s 2021/2022 Legal Year.
Akpata said, “At the maiden edition of the Legal Year of the Court of Appeal, I did not mince words when urging our Justices to man their courts against the invasion of those who are only intent on perverting the course of justice. I have also at some point called for improvement in the welfare of all judicial officers in Nigeria. At the recently concluded All Nigeria Judges Conference, which was last month, I called on our judges to take up the courage to confront the monster of judicial corruption tarnishing the image of the judiciary.”
Politicians corrupting judiciary
The report by the ICPC linked corruption in the judiciary to “the stupendously high amounts of money offered as bribes to judges by lawyers handling high-profile electoral and political cases.”
The assertion by the ICPC is buttressed by Clarke’s recollection of how “Prior to the so-called democracy that we started in 1999, the judiciary was perfect, even though there might have been a few bad eggs.
“We, lawyers, were happy at the judgments coming from the courts. We were sure when stepping into the courtroom that we were going to get justice. But since 1999, it has changed because the politicians brought money – stolen money – to the life of every Nigerian.”
According to Clarke, the stolen money in the hands of politicians found its way into the judiciary through the hands of lawyers who specialise in election petition cases.
He said, “We now have a class of lawyers in Nigeria who are election lawyers and they make more money than any lawyer in Nigeria. And they are not fools; they see how governors are stealing money; so, when the governors have problems, they run to the lawyers, who bill them, and they pay.
“Now, not satisfied with giving plenty money to lawyers, they have now gone to the judges. They would tell the lawyers: leave me with the judges. And then they have bastardised the judiciary. That is the problem that the politicians have created.”
Also alluding to the influence of politicians on judges, Odinkalu recalled that, “In 2007, 86.35 per cent of the offices contested (in the general elections) ended up before the judges who ultimately decided the winners and losers. Unsurprisingly, the judges were under considerable pressure of different kinds.”
Odinkalu’s assertion is likely the reason the nation often witnesses a flurry conflicting ex parte orders being issued by judges during election seasons.
A former Chairman of the Independent National Electoral Commission, Prof. Attahiru Jega, in a recent lecture delivered during the 2021 Law Week of Ibadan NBA, asserted that “cash and carry judgments” had become a feature of the country’s electoral process.
Jega said, “Some senior lawyers have become stupendously wealthy defending corrupt public officials, or handling electoral litigation for governorship and presidential candidates.
“Similarly, many judges have become notorious for corrupt enrichment for ‘cash and carry’ judgments, especially in election matters generally and in election tribunals, more specifically.
“Some election tribunal appointments were in the past widely said to have been made to senior judges about to retire, who allegedly ‘sold’ judgments, most likely to the highest bidders, enriched themselves and quickly retired to avoid being sanctioned by the NJC.”
Jega called on the judiciary to urgently address the issue of corruption and save itself from crisis.
Odinkalu warned: “No one wants to invest in a country in which judges lack the capacity for indignation over credible charges of judicial corruption. This is why Nigeria bleeds investments and even those who end up investing in Nigeria don’t choose it as the place for resolving their investment disputes. They think Nigerian judges are bought and sold on the open market and the Supreme Court is unwilling to face this down.”
‘Majority of judges are upright’
But Ugwumadu said despite the reality of corruption in the judiciary, the majority of judges are clean.
He said, “Perception is very important in all forms of evaluation. But what is more important is that there are more than enough judges who are upright, steadfast, and extremely industrious and dedicated to their duty.
“I am a practising lawyer; we go to court and we see judges who are angry that things are not working the way they should work. And you can see how they apply the law, by playing down on things that will undermine the attainment of justice. That caveat needs to be entered.”
Ogunye chided the ICPC for merely quoting bribe figures without mentioning names of judges and lawyers involved, thereby giving the impression that the entire judiciary is corrupt.
“That can demoralise hard-working judges because when you tar the totality with the brush of corruption, you destroy the entire and I don’t think that that’s fair,” he said.
Sagay equally believes that there are only a few bad eggs on the bench giving the entire judiciary a bad name.
He called on the good ones to help themselves by exposing the bad ones.
“The fact that the good ones will not separate themselves from the corrupt ones or partner with any organisation that wants the corrupt ones out does not help. Instead, they feel offended and try to accommodate those who are bad, even though they know they are bad. I have seen that at every level of the judiciary and it saddens me,” Sagay said.
Reforming the bench
Stakeholders say reforming the bench must begin with a review of the process by which judges are appointed, so as to make it merit-based and bring men and women of high integrity to the bench.
They also called for better remuneration and welfare for judges to insulate them against temptation for bribery and corruption.
Furthermore, they want the NJC to go beyond merely sending indicted judges on premature retirement without prosecuting them.
They also called on the NBA to go hard on lawyers responsible for inducing judges.
On judges’ appointment, Oluyede submitted, “I have already said that it will take 25 years of serious actions to reform the judiciary. But they can start with judges’ selection process and ensure that all those that apply are properly vetted.
“The selection process has to return to what it used to be. In those days people became judges based on recommendations of others unlike today when anybody can become a judge, so long as they know somebody at the top, politically.
“Today, everybody wants to become a judge, not to deliver judgments but because they see it as another avenue to comfort and wealth.”
On his part, Ugwumadu said, “We have all lampooned a system that has reduced recruitment into the judiciary to political influence and affiliation. This has very far-reaching implications. The law is a very rigorous discipline that requires the fecundity of mind, sense of fairness, sound knowledge of the law, deep passion and disposition to do justice and a general sense of responsibility and patriotism to the nation. Where all of these are thrown overboard in favour of patronage and you keep seeing the same faces from the same circles of influence, at that point, there is a problem.”
Similarly, Ogunlana said, “What the judiciary can do to improve is that the appointment system should be reviewed. Magistrates, judges, not many of them in my respectful view, are appointed on merit.
“Those appointed as judges ought not to be just any lawyer; they should be the very best, those in the upper divide in terms of dedication, understanding, courage, general character.”
The NBA President made the same call in his speech at the Supreme Court event.
He said, “We must borrow a leaf from other jurisdictions by further opening up the process with a view to ensuring that anyone aspiring to this high office is subjected to a rigorous, transparent and clearly defined process which will demonstrate his or her suitability for the office. This is the only way to silence the critics and restore the much needed public confidence in the process of selection of judicial officers.”
Oluyede added that “Judges must be given the social and economic support to resist temptation; otherwise it will be difficult because you can’t put a lion beside a goat and think that when it’s hungry it’s not going to eat.”
In a report titled, “Go home and sin no more: Corrupt judges escaping from justice in Nigeria,” a group, Socio-Economic Rights and Accountability Project, observed that between 2009 and 2014, about 64 judges were indicted for misconduct by the NJC.
SERAP, however, faulted the fact that the indicted judges were merely sent on retirement without prosecuting them.
The Director, Access to Justice, Mr Joseph Otteh, believes that the NJC at best gives indicted judges only a slap on the wrist.
Otteh said, “Not every judge who has been indicted for corruption – even by the NJC – has been required to render accountability before a criminal court, and this is where we must question the transparency of the standards taken by law enforcement institutions against judicial corruption.”