By Wahab Abdullah, Dapo Akinrefon, Godwin Ositse, Ikechukwu Nnochiri
LAGOS — Senior lawyers have lent their support to the National Judicial Council, NJC, which weekend recalled some indicted judges, just as chairman of the Presidential Advisory Committee Against Corruption, PACAC, Professor Itse Sagay frowned at the development, saying “it is absolutely wrong to recall a judge whose case is on-going.”
The National Judicial Council, NJC, headed by the Chief Justice of Nigeria, CJN, Justice Walter Onnoghen, recalled the judges at the end of its 82nd meeting on June 1, a development that has continued to elicit reactions.
According to the NJC, the recalled jurists include Justice John Inyang Okoro of the Supreme Court, Justice Uwani Abba Aji of the Court of Appeal; Justice Hydiazira A. Nganjiwa of the Federal High Court; Justice A. F. A. Ademola of the Federal High Court who has been discharged and acquitted; Justice Musa H. Kurya of the Federal High Court; and Justice Agbadu James Fishim of National Industrial Court of Nigeria.
It will be recalled that the NJC had said its decision was predicated on the fact that of the eight judges asked to withdraw from their judicial duties on the request of the Attorney-General of the Federation, Mr. Abubakar Malami, SAN, pending the conclusion of investigations on corruption allegations against them, only three had been charged to court.
NJC, in a statement by its Director of Information, Mr. Soji Oye, weekend, asked various Heads of Court to direct the six suspended Judges to resume their judicial duties with effect from June 7, “as there are already backlog of cases in their various court for the past eight months.”
Reacting yesterday, chairman of the Presidential Advisory Committee Against Corruption, PACAC, Professor Itse, SAN, said: “It is absolutely wrong to recall a judge whose case is ongoing. ‘’It is wrong for the NJC to have recalled that judge. That is just my view. It is wrong because the case is ongoing. The matter has been filed and we don’t know what the outcome is going to be. If the outcome is negative for the judge, then he has to leave again, so it does not make sense.
“Second, with regards to the other judges who were not charged, that is charges were not brought against them and that is why they were recalled, on principle, there is nothing wrong with that. But I want to ask a question, before recalling them, did the NJC consult with the anti-corruption agencies and the DSS, that arrested them in the first place? If you didn’t consult the agencies (EFCC and DSS), it can result in an embarrassing situation.
“If you consult them and they say they are no longer interested in pursuing the cases, then you can recall them. But if you consult them and they say they are trying to dot on the charges they are going to file in a week or two, then you don’t recall them because after you recall them in such a circumstance and charges are filed against them, what you have is that a judge today becomes an accused in another court.
‘’The image of the judiciary is going to be severely damaged. So, I don’t think the NJC has used its discretion judiciously in this matter.’’
Meanwhile, two of the affected judges — Justice Sylvester Ngwuta of the Supreme Court and Justice Rita Ofili-Ajumogobia of the Federal High Court, are already standing trial before different courts.
Though Justice Ademola of a Federal High Court in Abuja was equally charged to court, he had been tried, discharged and acquitted of all 18-count criminal charges the Federal Government preferred against him.
SANs back NJC
But most other lawyers Vanguard spoke with yesterday threw their weight behind the NJC. They maintained that the NJC acted within the law, adding it would amount to gross injustice to continue to keep the affected Judges in abeyance when no form of corruption charge had been entered against them in court.
In his reaction, Mallam Yusuf Ali, SAN, said: “You can’t keep the Sword of Damocles on people’s head forever. The event leading to this problem happened more than six months back, and there is presumption under our law that you cannot bring allegation without proof. So, they are presumed innocent and they are public officials, if tomorrow, if they find proof, they can bring charges against them, then they can be summoned. But it’s not good to keep them in suspense. They were kept in suspense in their professional life, their family life etc. So, if there is nothing against them, they have to go back to their work. It is good the NJC took that decision now.”
Also reacting, Babatunde Fashanu, SAN, said: “The public may not be happy about it, they will feel that they were just being protected. However, they cannot be kept perpetually without trial, except that there is conviction that they have cases against them which is yet to be resolved. They can also be kept if there are other pending cases or petition before the NJC. However, in absence of such, they have to return to their work.
“As at now, the Judges are presumed innocent since there is no petition and no case against them before the NJC. For instance, one of them has been acquitted while no charges are preferred against others, there is no justification to keep them at bay.”
FG should apologize to the judges
Constitutional lawyer and rights activist, Chief Mike Ozekhome, SAN, took a slightly different position, saying the NJC acted belatedly.
He said the Federal Government ought to apologise to the Judges “for the public odium, embarrassment, obloquy and shame their unjustified arrest, detention and media trial impacted on them.
“The state should stop persecution, rather than prosecution. We are not in a Banana Republic or in George Orwel’s Animal Farm. Until the appellate court upturns the earlier judgment of the lower court, such judgment subsists and is enforceable.
“The only exception is if there was a stay of execution, since a mere appeal does not operate as a stay of execution. It is, therefore, right for the NJC to recall the judges to work. It was even too late in coming.”
Norrison Quaker, SAN, said in his reaction: “It is a welcome decision, this is because majority of the judges asked to return to work have not been charged to court almost six months they were accused of graft. The one charged to court was discharged and acquitted. If you look at the pattern adopted by NJC, you will observe that those who have been investigated, tried and freed and those that no charges are filed against are the ones recalled.
“I believe their trial will have nothing to do with cases brought before their court in whatever manner. However, those who are not comfortable among them can proceed to retirement.”
Mr Paul Usoro, SAN, said that the security authorities ought to have carried out a proper investigation before arresting the suspects.
He was of the opinion that since nothing concrete had been found to hold on to them, they should return to their jobs.
“They cannot be suspended for ever, if nothing has been found on them,’’ he said.
According to Mr. Usman Uztaz, SAN, “the NJC took a good decision. You cannot continue to keep somebody in suspense over a yet-to-be-filed charge. If you don’t have a case against somebody, to continue to subject that person to perpetual punishment will be against both natural and constitutional rights.
“To continue to punish someone you have not made any case against is contrary to the law of God and the law of nature.”
Mr. Dayo Akinlaja, SAN, said: “My candid view is that there is absolutely no legal impediment against recall of the suspended judges that have no corruption cases pending against them. In the first place, they were suspended not because that was what the law dictated, it was purely to pamper public sentiment at that time.
“The NJC, I believe, took the decision then to assuage public feeling. It was a spontaneous reaction that was made on the spur of the moment. I don’t think there is any reason whatsoever they should not be recalled since nothing has been pinned against them.
“However, taking into consideration that one of the Judges, Justice Ademola, was arraigned and had been discharged and acquitted by the trial court. The issue or argument that his matter is already on appeal may raise some moral questions. This is considering that the appellate court could still direct that he should go back and face trial before the court of first instance, that is if the appeal is decided against him.
“Therefore, his own case is somehow different. But even at that, it still boils down to the issue of morality. Issue of morality takes a bow when confronted by the law. When morality and the law meet, morality certainly gives way to the law.”
Another lawyer, Chief Sebastian Hon, SAN, also applauded the NJC over the decision, describing it as a most welcome development.
“The NJC, even though is, under the Constitution, not subject to any body’s direction or control, decided to tacitly support the anti-corruption drive of the government in the first place by suspending those judicial officers — even when they were not arraigned and convicted.
“Since the Executive could not arraign them or secure conviction, the NJC just did the needful, as some of us urged them to do. No country treats its citizens the way those judicial officers were treated; and the NJC just woke up to its constitutional and moral responsibility – by taking this bold step.”
Speaking in similar vein, Mr. Chris Ebare, a maritime lawyer, said the development was welcome and good for both the judiciary and the nation because after the saga, Nigerians have had a different perception of the of the judiciary.
Ebare also said that since the judges had been found not to be culpable, there should be no need for the suspension to continue. “The NJC is a credible institution that will not support any form of injustice and corruption.”
For Chris Asoluka, a former Commissioner in Imo State, it is within the purview of the NJC to review the suspension of the judges, which it had done.
NJC’s decisions can be defended in only a few cases — OTTEH
Joseph Otteh, Director, Access to Justice, said “Concededly, there are a few instances where the NJC’s decision can stand up to scrutiny: the failure of the government to formally bring charges against some of the judicial officers accused of corruption after many months of investigation would be taken to mean that, in spite of all the grandstanding and boisterous noisiness in defence of its “sting” operations, the government has nothing on them at the end of the day, notwithstanding that it had tarred everyone with the same brush. For the future, the government must reflect and learn from its misjudgements and forwardness, when it comes to investigating allegations of corruption against Judges. No judicial officer should have to go through the terror of being so publicly humiliated in the absence of strong and compelling justification.
“However, not all the cases fall into this category; some judges have been charged to court and proceedings are still continuing against them. The NJC’s en-bloc recall of the Judges on its current list papers over the cracks. One of the judges on its list is currently charged before the Code of Conduct Tribunal even though he has not been formally arraigned at this time. Some others are named in several other indictments against persons they are said to have acted in concert with. Some of the evidence elicited during the trial of some of the judges on the list are extremely perturbing. While a court may not see fit at this time to conclude that the evidence tendered at trial yet reaches the thresholds to convict for a criminal offence, the evidence non-the-less creates deep impressions about the weaknesses of the Nigerian judiciary in the minds of reasonable observers of the trial and should not be swept under the carpet.
“It is important to note that the NJC does not itself have powers to undertake criminal prosecutions but it has its own sphere of disciplinary responsibilities and authority over Judges. The Judiciary has a Code of Conduct for judicial officers: whether or not the provisions of that code have been broken is a legitimate and expedient inquiry that the NJC needs to pursue quite apart from whatever is the outcome of a criminal trial prosecuted by third parties.
“We think that the NJC’s recall decision suffers from two major flaws: first, it did not make a plausible differentiation and distinction regarding the respective situations of the various Judges on its list. It treated different cases alike and literarily gave everyone, deserving or not, a free pass.
“Second, given the inexorable necessity of restoring public confidence to the Judiciary, the NJC ought to have done more to demonstrate that we are not returning to the status quo ante, or returning to the state of “normal” Nigerians had been used to in matters relating to judicial integrity. The NJC has a responsibility, quite apart from what third parties (such as prosecutors) do, to police the Judiciary and safeguard the integrity of the judicial institution.
“We do no think the NJC has sufficiently discharged that obligation to its fullest extent before recalling the Judges. The NJC ought to have adopted a more proactive standard that will ensure that all misconduct allegations against Judges, irrespective of the existence of criminal proceedings related to them, and irrespective of whether those allegations are referred to the Council by anyone else, are thoroughly investigated by the Council to insure that no one whose conduct has been the subject of reasonable suspicion, is again asked to sit in judgment over others. By asking the Judges to be recalled en-bloc, the NJC gives the public the impression that our Judiciary is quite content to remain in its un-regenerated, uninspiring form.”