ARREST AND PROSECUTION OF SERVING JUDGES: THE ROLE OF NATIONAL JUDICIAL COUNCIL

“All that is required is that the NJC be allowed to carry out its duties before Judges are brought before a court of law to face criminal prosecutions”.

On the 11th December 2017, the Court of Appeal delivered what many have described as a landmark judgement concerning the exclusive powers of the National Judicial Council to look into matters pertaining to the discipline of serving judicial officers. In interpreting section 158 of the Constitution, the Court held that a judicial officer could not be arrested and arraigned before a court of law where the complaint against him bothers on an infraction of his oath of office and that in such circumstances, such a Judge must firstly be found wanting by the NJC and removed as a Judge, before he could be hauled before a court to face criminal prosecution. In justifying its position, the Court of Appeal considered that the doctrine of separation of powers necessitates that the Judicial arm of government be guaranteed independence and that as the National Judicial Council is designed as a mechanism to insulate the Judiciary from outside influence, it must be allowed to carry out its constitutional duties without interference. The Court specifically made the following pronouncements amongst others:

“Whenever a breach of judicial oath occurs, it is a misconduct itself, then the NJC is the appropriate body to investigate such breaches by the judicial officer and if found to be so, such judicial officer shall face disciplinary action and the NJC may recommend the removal of such a judicial officer to the appropriate authority which is either the President in the case of a Federal Judicial Officer or the Governor of the State Judicial Officer and/or take other actions appropriately. When this is done and accepted by the appropriate authority in compliance with the provisions of the Constitution, then the relevant law enforcement Agent or Agency is at liberty to make the said judicial officer face the wrath of the law.

Any act done by the law enforcement  Agency in violation of the above is tantamount to denying the NJC its powers to discipline Judges in accordance with the provisions of section 153(1) and paragraph 21 part 1 of the third Schedule, of the 1999 Constitution (as amended). See paragraph 21 (a) & (b) of the Third Schedule, Part 1 of the 1999 Constitution (as amended) respectively. Whenever there is an allegation of official misconduct against a judicial officer and the above stated process is not adhered to, it amounts to jumping the gun and the ipso facto a direct violation of the Constitution. Recourse to the national judicial council is a condition precedent as clearly set out by the Constitution, and any attempt by any Agency of  Government to by-pass the  Council will amount to failure to observe condition precedent thereby leading to flagrant violation of the Constitution.

Quite understandably, the Judgement has attracted diverse reactions and comments from Nigerians. While some, including the Economics and Financial Crimes Commission (EFCC) have criticised the Court for what they see as a bid to confer immunity on judges, others see it as a much welcome development that is sure to strengthen the observance of democratic principles in our country. I belong to the former group. Indeed, on the 13th October 2016 I issued a statement in which I made the same point which have now been validated by the Court of Appeal. For avoidance of doubt and for purpose of clarity, I wish to reproduce excerpts from my statement which read thus:

“Nigeria operates a democratic system of government which anywhere in the world places emphasis on separation of powers between the three arms of government which arms are independent of each other. Of these, the Judiciary enjoys primacy of importance when it comes to the issue of autonomy and independence as a Judiciary which is not free from political interference will bring about the demise of nation perhaps faster than corruption or any other vice would. World over, one of the widely accepted means of guaranteeing such independence to the Judiciary lies in the establishment of a Judicial Council. In an article entitled ‘Guarding the Guardians: Judicial Council and Judicial independence’ the Law School of the University of Chicago stated as follows:

Judicial councils are bodies that are designed to insulate the functions of appointment, promotion, and discipline of judges from the partisan political process while ensuring some level of accountability. Judicial councils lie somewhere in between the polar extremes of letting judges manage their own affairs and the alternative of complete political control of appointments, promotion, and discipline…The motivating concern for adoption of councils…was ensuring independence of the judiciary after periods of undemocratic rule.To entrench judicial independence, most…countries enshrined the judicial council in their constitution.

It is for this reason that the 1999 Constitution in section 153 provides for the establishment of the National Judicial Council and in paragraphs 21(b) & (d)  of the Third Schedule grants to the Council the power to exercise disciplinary control over judicial officers. As the allegations made against the judges are said to arise from or pertain to their office as Judges, I am of the view that the Constitution requires that any infraction by the said Judges be firstly investigated and resolved by the National Judicial Council (NJC) to the exclusion of any other body or authority…Would it not be better and more practicable to firstly have the NJC investigate the matter and possibly remove from him the toga and aura of a Judge before such arrest and arraignment?…What is equally worrying is that by the provisions of Section 4 of the National Security Agencies Act, the DSS acts under the coordination of an officer in the office of the Presidency. I state unequivocally that such a scenario derogates from the independence of the judiciary which the establishment of the NJC is designed to guarantee. “

One major criticism levelled against the judgement is that it seeks to confer immunity on Judges contrary to the provisions of Section 308 of the Constitution which limits immunity to the President, Vice President, Governors and Deputy Governors. This is absolutely unfounded. All that is required is that the NJC be allowed to carry out its duties before Judges are brought before a court of law to face criminal prosecutions. The Judgement does not in any way bar such criminal prosecutions. Indeed the Court made it it clear that the NJC would have no role to play if the offence alleged against a Judge is not one that has to do with the violation of his oath of office. On the whole I welcome the decision. I however enjoin the NJC itself to rise up to the challenge thrown up by critics of the decision who particularly refer to what they see as the slow pace of its disciplinary procedure of Judges as a reason to doubt its efficiency in the discharge of its duties. Dutiful discharge of its duties will serve to strengthen democracy and the separation of powers in the manner envisaged by the constitution and interpreted by the Court in the judgement in this decision.

AARE AFE BABALOLA SAN, CON