By Barrister Adekunle Orafidiya

The recent decision of the National Judicial Council (NJC) to suspend some Judicial officers for misconduct has been well received as a long awaited first step in the quest for the sanitisation of the acknowledged rot in the judiciary. While the current Chief Justice of Nigeria and Chairman of the NJC, more than her predecessors, has shown within her short tenure, the eagerness to stem the rot, one would be quick to say that this step has become more eloquent for its tokenism and double standards. The case for which Justice Charles Archibong of the Federal High Court, Lagos Judicial Division was recommended for dismissal is so widespread on the bench at both Federal and State High courts that, if the public and practicing lawyers were to have an input, a countless number of judges should be kissing the bench goodbye.

However, the similarities in the cases of Justice T D Naron of the High Court of Justice, Plateau State and the suspended President of the Court of Appeal, Justice Isa Ayo Salami are compellingly noticeable. The devil in the detail though, is that while Justice Naron was indicted for interacting with Counsel who had a matter before him, the suspended PCA, who was “discharged and acquitted” by the Special Investigative Panel of the National Judicial Council in 2011, not only interacted with legal representatives, but also liaised with litigants (more on the proof of this assertion shortly).

I enjoin those who may be minded to celebrate the tokenism of these two recommendations for compulsory retirement as signifying a new day, a new dawn in the annals of the Nigerian judiciary, to advert their minds to the fact that the current Chief Justice of Nigeria, Aloma Mariam Muktar chaired a 3-man committee which adopted the position of the Auta Panel that had earlier reviewed the report of the Justice Umar Abdullahi Special Investigative Panel (so many Panels!). The interesting bit is that the Justice Umar Abdullahi Panel posited in its report (a report which, to employ a classic oxymoron, is as clear as mud)that it saw nothing wrong in the unethical practice of so-called senior lawyers communicating with members of the Bench; even when they have matters pending before them. So, what has now radically changed the view of the National Judicial Council? Or, is it that the Council acts 'as the spirit leads'?

Not being a Court of law, if the Umar Abdullahi-led Special Investigative Panel did not want to be perceived as acting out a script to protect one of its own, it ought not to have dismissed the lawfully obtained MTN call logs (incidentally now confirmed as authentic) tendered in evidence against Justice Ayo Salami with a wave of the hand, just because they were not certified. The Panel should have taken the time to probe whether the calls on the logs were made and received and if so, were they (the calls) appropriate, licit or defensible in the circumstance? What makes NJC's position desperately awkward is that none of the individuals mentioned on the call data records of Justice Ayo Salami have come out to categorically deny interacting with him and his close friend, Tunji Ijaiya, whose voice calls and text messages were like Siamese twins with those of Ayo Salami – whether they were put through (in the case of voice calls) or sent (in the case of text messages) to ACN chieftains, its legal representatives or other members of the Bench.

One lone voice of reason, Joseph Otteh, a director of Access to Justice, writing in the Guardian of Tuesday, August 16, 2011, opined in his reaction to the NJC Panel report thus: “The precedent set by the NJC's austerely legalistic approach to fact-finding is that it would be extremely difficult to hold judicial officers accountable for judicial misconduct when they hold illicit, unethical communication with parties involved in a case before them. If there are reasonable fears that a judicial officer is involved in suspicious, inappropriate communication with parties or their legal representatives during the trial of cases before them, no effort ought to be spared to resolve the concern and establish whether such communication took place.” I could not agree more. As to the appropriateness or otherwise of Justice Ayo Salami's liaisons, I refer to the Code of Conduct for Judicial Officers of the Federal Republic of Nigeria:

“In performance of his duties, a Judicial Officer should observe the following rules:

RULE 1 (2) (a): A judicial officer must avoid social relationships that are improper or give rise to an appearance of impropriety; that cast doubt on the judicial officer's ability to decide cases impartially, or that bring disrepute to the judiciary.

RULE 2 (A) (1): A Judicial officer should be true and faithful to the Constitution and the law, uphold the course of justice by abiding by the provisions of the Constitution and

RULE 2 (A) (9): A Judicial Officer shall be bound by professional secrecy with regard to his deliberations and to confidential information acquired in the course of his duties other than in public proceedings.

RULE 2 (C) (1): A Judicial Officer should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where........

RULE 3: A Judicial Officer should regulate his extra-judicial activities, to minimise the risk of conflict with his judicial duties.

EXPLANATIONS (iii): Violation of any of the rules contained in this Code shall constitute judicial misconduct or misbehaviour and shall entail disciplinary action.”

Here, then, is the conundrum for the National Judicial Council: If Justice T D Naron could be recommended for compulsory retirement based on proven allegations of interacting with Counsel in a matter before him, it is my well considered view (without prejudice to the shipload of cases in which the suspended PCA is mired) that Justice Ayo Salami ought to have been indicted long before now, for violating virtually all the provisions of the code of conduct for judicial officers.

To drive the point home: a juror (not a judge), Joanne Frail, 43, of Blackley (UK) was jailed for 8 months because she contacted a defendant on the social networking site, Facebook , after he (the defendant) had been cleared in a drugs case. Sentencing Frail, the Lord Chief Justice said in a written ruling “Her conduct was directly contrary to her oath as a juror, and her contact with the acquitted defendant constituted flagrant breaches of the proper conduct of the trial.” Why is our case different? Why do we not overlook age, status or influence and do what is right by ensuring in every case that “the punishment fits the crime”? This is the reason why well ordered United States of America would have no compunction in sentencing a 74-year-old (at the time) Bernard Madoff to 150 years in prison in June, 2009 on one count of securities fraud (Ponzi scheme). And to be sure, perverting/obstructing the course of justice is, to my mind, the greatest Ponzi scheme of all. Just why we continue to slap errant members of the Bench on the wrist with retirement – compulsory or not- (in which case they are entitled to claim gratuity and continue to draw pension for as long as they live) beats the imagination. Is there no provision for dismissal and trial in NJC's rule books? I just wonder.

The National Judicial Council said it found that Justice T D Naron was in constant contact with a Senior Advocate who had a matter before a Panel the jurist headed - by voice calls, SMS and MMS. Considering that the law enforcement and security agencies had a hard time extracting confirmation of the authenticity of Justice Ayo Salami's call data record from MTN, how then, did it happen that Justice T D Naron's call logs were released and in all probability, certified, by the same telecoms company without much ado? When were the call logs critical to the indictment of Justice T D Naron obtained? Did they span longer than the 3 months which MTN claims is the limit of its storage capacity? Did the logs (of Justice Naron and the Counsel in question) contain incoming and outgoing components as opposed to the single-component call logs MTN supplied in the Justice Ayo Salami case?

There is no gainsaying the fact that the Nigerian judicial system is in a shambles. But we can still pull it back from the brink by unearthing the extent of and dealing decisively and holistically with, the obvious rot that has permeated this extremely important arm of government.

Appointments to the Bench should be given more vigorous scrutiny in order to ensure that only individuals who have been found worthy in learning and character make it there.

The judiciary, and indeed, our entire legal system is at a crossroads, and because we all stand to lose as stakeholders in the Nigerian project (of which our legal system is an important part), it behoves us all to rise as one and ensure that those who are bent on further destruction of our justice administration and delivery system are checkmated.

The Nigerian judiciary's stature and prestige has sunk to an all-time low, while its authority has waned considerably. A corrupt judiciary will certainly not deepen democratic ethos in our land.

Perverting the course of justice is a high crime and ought to be dealt with as such. The National Judicial Council needs to do much more than just scratch the surface.

In closing, I would like to pose two rhetorical questions: Can the National Judicial Council be said to be acting in an even-handed manner? Is MTN non-partisan?

* Adekunle Orafidiya is an Abuja based legal practitioner

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