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As the NJC upholds Odili’s perpetual injunction: Who judge the Judges?

By Osita Mba

In a letter dated 29 March 2010, the National Judicial Council notified me of the outcome of my petition     against Justice Ibrahim Buba for gross incompetence and flagrant abuse of powers amounting to judicial misconduct and breaches of the Code of Conduct for Judicial Officers in relation to his perpetual injunction restraining the EFCC from carrying out its statutory functions with regards to the alleged looting of the Rivers State treasury by Dr Peter Odili.

The terse letter, signed by the Secretary to the Council, Mr Danladi Halilu, simply stated as follows: “Your petition of  November 20, 2009, on the above subject-matter and the response to same by Ibrahim Buba of the Federal High Court, were considered by the National Judicial Council at its meeting which was held on February 24 and 25, 2010. After deliberation, Council found that your petition was unmeritorious and consequently had absolved Justice Ibrahim Buba of the allegations therein, please.”

Since the petition was widely publicised and thus elicited numerous enquiries from interested members of the public, it is fair both to Justice Buba and to those that have expressed interest in the outcome that his exoneration should receive similar publicity. However, the unsatisfactory manner in which the Council dealt with the matter and the peculiar circumstances surrounding Dr Odili’s perpetual injunction raise serious issues that merit further discussion.

The Council did not give any indication whatsoever as to why it considered the petition to be “unmeritorious”. Also, it did not provide any detail regarding Justice Buba’s response. This procedure, which I understand to be the Council’s standard practice, undermines the Council’s credibility. Clearly, the Council cannot maintain public confidence if it is not seen to be transparent in the handling of complaints against judges.

Indeed the first paragraph of the preamble to the Council’s Code of Conduct for Judicial Officers makes clear that “an independent, strong, respected and respectable Judiciary is indispensable for the impartial administration of Justice in a democratic State.”

The NJC
The Council is one of the Federal Executive Bodies created by section 153 of the 1999 constitution. It is charged with responsibility for all matters relating to broad issues of policy and administration of the Judiciary with a view to securing the independence and integrity of that arm of government.

Council is comprised of: the Chief Justice of Nigeria,  who is the Chairman; the next most senior Justice of the Supreme Court who is the Deputy Chairman; the President of the Court of Appeal; five retired Justices selected by the CJN from the Supreme Court or Court of Appeal; the Chief Judge of the Federal High Court; five Chief Judges of States appointed by the CJN; one Grand Khadi appointed by the CJN; one President of the Customary Court of Appeal appointed by the CJN; five members of the Nigerian Bar Association appointed by the CJN (who shall sit in the Council only for the purposes of considering judicial appointees); and  two persons not being legal practitioners who in the opinion of the CJN are of unquestionable integrity.

The Council is empowered by the Constitution to recommend to the President and the Governors, from among the list of persons submitted to it by the Federal Judicial Service Commission, persons for appointment to senior judicial offices including the Chief Justice of Nigeria, the Justices of the Supreme Court, the President and Justices of the Court of Appeal, the Chief Judge and Judges of the Federal High Court.

It also has the power to recommend to the President and the Governors the removal from office of these judicial officers and to exercise disciplinary control over them. Section 158 of the Constitution provides that in exercising its power to make appointments or to exercise disciplinary control over judges, the Council shall not be subject to the direction or control of any other authority or person.

Section 159 provides that the quorum for a meeting of the Council shall be not less than one-third of the total number of its members at the date of the meeting while section 160 provides that the Council may, with the approval of the President, regulate its own procedure or confer powers and impose duties on any officer or authority for the purpose of discharging its functions by rules or otherwise.

It is evident that the composition and powers of the Council, which are designed to secure its independence, potentially violates the principle that nobody should be a judge in his own cause, as there is an apparent risk of institutional bias where judges exercise disciplinary control over fellow judges. Therefore, it is of fundamental importance that the Council should, in dealing with complaints against judges, ensure that justice is not only done, but is manifestly and undoubtedly seen to be done.

Furthermore, in view of his exalted positions as the Chairman of the Council and the appointor of most of the Council’s members, the CJN enjoys great discretionary powers that carry grave responsibilities as far as the activities of the Council are concerned.

Odili’s Valedictory Party in May 2007.
On May 26, 2007 (shortly after Justice Buba’s issued the first set of injunctions in favour of Dr Odili on March 23, 2007), the crème de la crème of the Nigerian judiciary, including a number of the Council’s members, led by the then CJN and Chairman of the Council Justice Idris Legbo Kutigi and his two predecessors (retired Justices Muhammadu Uwais and Alfa Belgore) attended a valedictory party organised in honour of Dr. Odili to mark the end of his eight years’ tenure as Governor of Rivers State.

Senior judicial figures, just like the rest of us, are no doubt entitled to basic human rights, including the right to freedom of association. However, the second paragraph of the preamble to the Council’s Code of Conduct for Judicial Officers provides that “a Judicial Officer should actively participate in establishing, maintaining, enforcing, and himself observing a high standard of conduct so that the integrity and respect for the independence of the Judiciary may be preserved.” Furthermore, rule 1 of the Code emphasises that “a Judicial Officer should avoid impropriety and the appearance of impropriety in all his activities” while rule 1.2 (a) specifically provides that “a Judicial Officer must avoid social relationship that are improper or give rise to an appearance of impropriety, that cast doubt on the Judicial Officers ability to decide cases impartially, or that bring disrepute to the Judiciary.”

It should be noted that the appearance of impropriety outlawed by rule 1 of the Code and public confidence in the impartiality of the Judiciary raise issues that must be viewed from the standpoint of the perception of the public. The question is not what a Judicial Officer does or does not do, but what right-thinking members of the public think he has done or might do.


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