“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.
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 thority…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
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.
“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.
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 thority…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
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.
Read more https://nairalaw.com/arrest-and-prosecution-of-serving-judges-the-role-of-national-judicial-council/