By Obi Nwakanma

Nigeria is possibly the only country in the world with a “National Judicial Council” charged with such wide powers as to regulate the courts and sanction judges. It is like the parliament for judges.

According to Section 153 of the 1999 Nigerian Constitution, the aim for establishing the Nigerian Judicial Council (NJC), was to insulate the judiciary from the caprices of executive power and to guarantee the independence of the judicial arm of government under a constitutional government. Scholars of state and nation are bound to agree that the instruments girding the Nigerian nation as a modern republic organised under the federalism principle ought to come under serious review.

The 1999 Constitution sometimes reads like a manual on psychosis. It is contradictory as a document guaranteeing federalism and a republic. It is ambivalent where it ought to be direct and slippery where it should indeed, be firm. It is about the only constitution in the world claiming to establish a “republic” in which “traditional rulers” are still mentioned. The ambivalent status of the Nigerian constitution itself is mostly evident in its concentration of extreme power in offices and in individuals rather than in institutions.

The power of the Presidency, for instance, is extreme. The powers granted the President of the Senate and the Speaker of the House of Representatives is extreme and makes them, not parliamentarians, but lords of the parliamentary manor. The members of the National Assembly – the term by which we describe the joint sitting of Nigeria’s bicameral legislature – are constitutionally weakened by this concentration of power or authority at the heads of the Assembly rather than on the sacred centre or organ of parliament fully constituted.

However, the constitution itself ironically bribes the Assembly into silence, by guaranteeing unseemly privileges to individual members of the National Assembly; privileges that seduce each member into self-satisfied trances. In their trance, they often fail to see their duties and the contradictions of the extreme hierarchies we have established under this republic. Indeed, in the in-built mechanism guiding the process of legislation, parliamentary activism is limited to the preservation of the realm rather than of the commons.

This much I learned once during a very short, very brief visit I once made to the offices of my pal, the Honourable Eziuche Ubani, journalist and legislator, and member of the House of Representatives. You would think that he would be a gladiator – a knight and champion of the people in parliament given his background as a crusading journalist when to crusade counted. His heart may have been firm and his convictions robust. But as Eziuche Ubani came to find out, the in-built mechanics or procedure in parliament limits any activist inclination on behalf of the people. It is not the parliament of the people.

The National Assembly is a parliament of the realm. So is NJC: its aim is the protection of the realm. In any case, NJC is a constitutional aberration. The Chairman of the NJC is the Chief Justice of the Supreme Court. The council is also overlaid with members drawn from specific interests all drawn from the practitioners of law and the magistracy. To draw from my previous example, the Chief Justice of Nigeria “ordained” to chair an extra-parliamentary institution which grants him executive authority embodies a contradiction.

This contradiction is in two folds: one, I do not think that Nigeria requires an extraordinary body to regulate judicial conduct. A properly constituted parliament has that oversight. Two, as events of the last three weeks is proving, the office of the Chief Justice is occupied by humans with individual foibles.

Occupation of that office alone does not guarantee good behavior. It is the law establishing that office that guards against bad behaviour. For the law to be effective, in other words, it must be framed with disinterest. The details of legal conduct it seems to me must be embedded within the Judicial Act – or any act of parliament that establishes the judiciary, and that should be enough. NJC is, thus, in my view, an over-extension of the state and an embezzlement of parliamentary function.

I’m making this statement with particular regard to the fallouts of the Kastina-Alu/Ayo Salami scandal. It raises the precise question in this matter: who guards the guardians of the law? When they break the law, who sanctions the judges of the Supreme Court? Whereas NJC is established to protect the judiciary from the whims of a powerful executive, the verities of its existence is compromised by its own constitution; by the single fact that the Chief Justice is at the head of NJC. It is probably time to review the basis of this body.

I think that the National Assembly should commence, following proper investigations, the impeachment of any Federal Officer of the Law who is accused of judicial misconduct. This is the precise meaning of the separation of powers and the rule by which one arm is the watchdog of the other. It is the Assembly of the Nation that constitutes the law of the nation.

It is true that judges in Nigeria have full tenure until their retirement at age 70. That tenure should only be subject to review only by the parliament of the land. In the United States from which Nigeria borrows much of its ideas, it is the Congress that commences the impeachment of federal judges, including the judges of the Supreme Court. Indeed, Articles 3, Section 1 of the US constitution says: “the judges, both of the Supreme Court and the inferior courts shall hold their offices during good behaviour…” Of course, the question of what constitutes “good behaviour” is left ambiguous.

However, a firmer language establishes in Article 2, Section 4 of the same constitution that, all federal officers in the United States including the President, the Vice-President, and the federal judges which include the justices of the Supreme Court, who are all considered civil officers of the United States, shall be removed from office on impeachment, on proof of “bribery, treason, or other high crimes or misdemeanor.”

The impeachment of Federal Judges in the United States begins from the House of Representatives, and on impeachment, a trial is conducted on the floor of the senate. It is pretty much the same as the impeachment procedure for the president or the governor in the State legislature. The fallout of the Ayo Salami and Katsina-Alu issue lends itself to this moment which must be the opportunity to restructure Nigeria’s judiciary and establish a truly independent and honest court system.

We must recognise, of course, that there could never be an honest court without an honest police service. We must also recognise at this moment that the Chief Justice of Nigeria and the President of the Federal Court of Appeal, have spliced open a can of worms, and have put the integrity of the Nigerian courts to jeopardy. NJC  cannot, and must not be allowed to suppress this moment.

The National Assembly must, therefore, for one moment in this democratic cycle, rise and commence the investigations, and where necessary, the impeachment of the Chief Justice and the President of the Federal Court of Appeal  on grounds of conducts unbecoming of judges. That is the rule of law.