By Jane Echewedo
Mr. Joseph Otteh, a lawyer is the director, Access to Justice; AJ, a human rights and non-governmental organisation. In this interview, he spoke on the issues of Judges standing trial over corruption allegations and the associated moral burden; federal government anti corruption as well as the administration’s serial disobedience of court orders and other sundry issues.
THERE are arguments that judges who are currently facing criminal prosecutions on various anti-graft offences should not return to the bench if they are eventually set free by the courts. How do you react to this?
There are a number of professional and non-professional standards applicable to the judicial vocation. At the outset, every judge who has been convicted of a crime, particularly, the crime that reflects negatively on his integrity has also broken the code of conduct applicable to judicial officers. So, as with most professions, your service as a judge is governed by both the criminal laws and the applicable code of conduct for the profession or vocation.
Profession or vocation
Now, if you are convicted of a crime in Nigeria involving dishonesty, and or any serious offence, really that should translate into your removal from office, quite apart from the sentence that has been imposed on you by the criminal court.
Now, your question is what happens when he is not convicted? Should such a Judge return to office? It really should depend whether, quite apart from the criminal law, the Judge has been in breach of the code of ethics for Judges. The outcomes of the criminal law proceeding are therefore, not the only criteria on which the Judge’s fate is determined. There is also the code of conduct for Judges.
The question will thereafter be asked whether in spite of the Judge’s acquittal, he nevertheless violated the applicable rules relevant to his function as a Judge. Now, remember that the standard of proof when someone is facing a criminal trial is proof beyond every reasonable doubt. You can technically get away with an indictment because of the prosecution’s failure to prove a case beyond reasonable doubt. But it does not mean that the same standards will be applicable to an administrative misconduct charge against a judge. For example, the prosecution may be unable to proof that a judge corruptly collected ten million naira in order to influence the outcome of a case in his court.
The court might rule that there is no evidence that money was given to a judge with the aim of influencing his decision. But the standard of proof that is required to convict such a judge in a criminal trial is not the same when a question goes before the National Judicial Council (NJC). In this forum, the question might then be “was it ethical for the Judge to take such an amount of money?”
Now the NJC in its wisdom can say “well we think it is very unethical for a judge to collect a certain amount of money from a party that has a case in the judge’s court and, because of this, we find that there may be a case of misconduct established against the judge and then go on to remove the Judge. So the question of what motivated you to take this money – which would have been a critical ingredient of the offence in a criminal trial – may not play that kind of role in an administrative enquiry.
What will be your disposition to the argument that the current fight by the Federal Government against corruption in the country is one-sided ?
Well, no one is in doubt that we have a serious problem with corruption in Nigeria and corruption is responsible for a lot of the stagnation and atrocities (including gross human rights atrocities) we have to contend with in our country. So, corruption is a monster that needs to be fought with every ounce of vigour and determination we can muster. Now, it is very important, that the fight against corruption should be an undiscriminating, uncompromising fight and if you ask me, it should know no sacred cows. I think that is the only way to give credibility to the fight because it is important for it to have integrity and credibility because if it does not, then people are just going to laugh it off and just say the government is grand standing, using corruption as a pretext to fight political enemies or the political opposition. When you look at the history of corruption in this country, you will see that there have been times when such cynicisms has given a certain complexion to the struggle and compromised it. So, it is in our interest to ensure that we can fight corruption with our eyes blindfolded; without minding who is going to be affected.
There are notable concerns now and a lot of people are beginning to doubt whether this government has that kind of resoluteness and perspective; whether the fight against corruption is being pursued in an undiscriminating manner; whether there are sacred cows who cant be touched; whether that fight has been politicised or is one-sided. These concerns are worrying. We think that the government can do more to strengthen the transparency and objectivity of the fight it is waging. Let what is good for the goose, be good for the gander. In view of the several court orders granting bail to the former National Security Adviser, NSA, Col. Sambo Dasuki, the government has refused to obey the court orders. What is your take on this?
I think the current administration is simply self-obsessed with showing off its power anywhere it deems fit. It’s a regime that wants executive supremacy, over constitutional supremacy and does not shy from the haughtiness of wanting this or brazenness of acting so. We on this side are seriously concerned that the government is choosing to take this path of impunity, of disobedience to court orders, of subjugating one branch of government to another, of sitting on appeal and basically overriding decisions of the court.
We think that the failure to abide by the rule of law will ultimately be counter productive to the fight against corruption. Take for example, you break into people’s houses at midnight, you collect evidence and you don’t wait for the court to sit to provide that evidence to the court, you try those people in the courts of public opinion, you tell people how much you have recovered from those people.
Now, assuming the court was to hold that the search you conducted on those premises was an unconstitutional search and therefore the things that you have seized from those properties were illegally seized and cannot be tendered in evidence, what happens to all the posturing? What happens if a judge says, well, we are not going to try a particular person any more because you have continued to flout our orders to admit that person on bail; if we lived in a society where the judges were extremely indignant of what the executive branch was doing to the judiciary and wanted to fight those kinds of disrespect, you can have courts saying that they are not going to try criminal charges against these persons whilst government are remaining in disobedience to court orders.
Recently, the Lagos state Deputy Controller of prison, revealed that 32 prison inmates died in a particular prison in the state due to lack of fund. Will it then be right to say that the Federal Government has failed in its responsibility of catering for the prison inmates across the country?
I didn’t quite read the report myself, and I equally don’t have all the details. But if I assume they are true, and then it is a serious failure of government, it is a huge violation of the rights of those prisoners, of the rights of the relatives of those prisoners and will lend further credence to the claim that the Nigerian government has not prioritised the sanctity of human lives.
Sanctity of human lives
A development like this should ordinarily trigger massive concern from the government by way of investigation into what actually led to the death of those prisoners. If we take human life as important then we must show the utmost concern over any death. First of all, I think these deaths needs to be investigated; if they happened in Lagos state, they ought to be the subject of Coroner inquests so that we can understand what happened and then know exactly who may be implicated in that responsibility chain, and then the government can direct policies to ensure that things like this don’t happen again.
That is what a responsible government should do; if these things happened and the government fails to do very much then it is really troubling, and so we would not hesitate to call for an immediate inquiry into those claims and a determination of what actually happened and why they happened. The Prison Controller may have said the prisoners died as a result of lack of resources, but I think there is need to get perhaps a more comprehensive set of findings that tells us exactly what went wrong.