Recall of Judicial officers by NJC: No need to hasten to status quo ante

*Chief Justice of Nigeria, CJN, Justice Walter Onnoghen

(Nigeria) By Joseph Otteh 

The National Judicial Council, NJC, at its 82nd meeting which ended June 1, has authorized the recall of six Judicial Officers earlier suspended from judicial duties following their indictment or investigation for criminal offences. 

Those to be recalled are:  Justice John Inyang Okoro of the Supreme Court, Justice Uwani Aji of the Court of Appeal;  Justice  Hydiazira Nganjiwa of the Federal High Court;  Justice Musa H. Kurya of the Federal High Court; Hon. Justice Agbadu James Fishim of National Industrial Court and Justice Adeniyi Ademola of the Federal High Court.

The NJC noted that only three Judicial officers have been prosecuted and one of them has been acquitted and discharged. The Council has implied that there is no further justification for the referenced Judges to be recused from performing their official functions.

NJC’s Decisions Can Be Defended in Only a Few Cases

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.

NJC Decision Flawed in Other Cases

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.

*Joseph Otteh is Director, Access to Justice