Judiciary: Cleaning Up The Augean stable

As a participant in a national television programme of the publicly owned Nigerian Television Authority (NTA) called “Good Morning Nigeria”, few days ago, I was privileged to speak on the recently publicized national judicial policy churned out by the National Judicial Council (NJC) headed then by the just retired Chief Justice of Nigeria Justice Mahmood Muhammad.

Yours faithfully was sandwiched between two notable Senior Nigerian lawyers who wear the title of Senior Advocate of Nigeria namely Chiefs Adegboyega Awomolo and Awa Kalu.

From the tone of the discussion, the two formidable lawyers spoke in defence of the Nigerian Judiciary even as they seemed to have generously endorsed the policy guidelines enshrined in the now released judicial policy for Nigeria.

As much as I endorsed the spirit behind the policy based on the fact that the Judiciary being a strategic arm of the Nigerian government is meant to have clearly laid out ethnical codes of conduct for the members of the bench, I still have my reservations in some of the provisions which seem to want to maintain the status quo of conservative opaqueness.

The strong exception I took to the document tagged the New National Judicial policy was the article that actively seeks to whittle down the way members of the public could have access to information.

That section prohibits the media from publishing in the mass media any subsisting petitions against any member of the Nigerian bench brought before the National Judicial Council (NJC).

Apart from the fact that this provision runs foul of Section 22 of the Constitution, it also seeks to gag the Nigerian media and to further make the operations of the National Judicial Council to remain opaque and non-transparent.

Besides, banning media publishing of any subsisting petitions against judicial officers offends relevant sections of the Freedom of Information Act of 2011.

The Act liberalizing information and its access even stepped up the democratic ladder by stipulating sanctions for any willful damage of Information being sought by members of the public.

Section 11 of the FOI Act of 2011 provides thus: “It shall be a criminal offence punishable on conviction by a competent court with a minimum of 1 year imprisonment for any officer or the head of any government or public institution to which this Act applies to willfully destroy any records kept in his/her custody or attempts to doctor or otherwise alter same before they are released to any person, entity or community applying for it.”

In Section 22 of the Constitution, “the press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in this chapter and uphold responsibility and accountability of the government to the people.”

I also said it was practically impossible for the Judiciary to seek to stop the media from performing some of their core functions to inform, educate and enlighten members of public just as this same constitution stated in black and white thus: “Sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority” (Section 14(2) (a)). In addition the constitution states that any statute that runs contrary to any provisions of the Constitution remains illegal to the extent of that inconsistency.

Chapter four of the Nigerian Constitution is replete with provisions supporting freedoms of speech and expression and in any case the Right to Freedom of speech and information are essential for the existence of democracy.

But why has the debate on judicial probity and transparency resonated and has occupied dominant place in public discuss in recent times?

The invasion of the homes of Judges by the Department of State Services (DSS) has created unprecedented public interest in seeking to know how deep rooted the menace of corruption and bribery has pervaded the judicial arm of government poetically described as the Temple of Justice.

It must be noted that the other two arms government viz the Executive and the Legislature are swimming in varying degrees of organized corruption and economic crimes. It is for the pervasive corruption ever present like hydra headed monster in those two arms of government even as I write that good governance is scarcely practiced and the basis social infrastructures have all but collapse due to massive heist of public fund and over concentration of public funds to fund recurrent expenditures such as the over bloated bureaucracy of government. So the issue of pervasive of corruption in the Judiciary or otherwise is not to be seen in isolation.

Just as it focuses attention to massive corruption within the other two arms although with some reservations, the Economic and Financial Crimes Commission (EFCC) has also waded into the issue of alleged economic crime by some judges.

On the last count over 10 judges from the Federal High Court; Appeal Court and the Supreme Court are on the search lights of the Department of State Services in the presidency and the EFCC.

The President of the Court of Appeal is one of the most high profile judicial officials being mentioned amongst those undergoing investigation in one form or the other on the issue of corruption. In pursuing perceived corrupt judges, the Presidency has come under accusations of carrying out a vindictive agenda against judicial officers who failed to do the bidding of influencing election related judgments to favour his political family - All Progressives Congress. The two Supreme Court Justices being investigated mentioned Rotimi Chibuike Amaechi and Ogbonnaya Onu two of the closest cabinet level officials of Buhari of reaching them with offers of bribes dropping the name of the President as the one who sent them. Buhari denied sending anyone to buy court judgments for his political party but the delay in sending the name of a non-Northerner to succeed the out gone Chief Justice of Nigeria points to this same accusations of vendetta clothed as anti-graft operations carried out by the Department of State Services under the purview of President Muhammadu Buhari. The North has produced successive Chief Justin of Nigeria for nearly thirty years running.

Buhari has been accused of carrying out regional agenda so his inexplicable delay in sending for confirmation the name of the rightful successor to the office of Chief Justice only because he is not from Northern Nigeria is troubling.

These series of Controversial activities of especially the Department of State Services under the direct control of President Muhammadu Buhari has drawn criticism from the immediate past Chief Justice of Nigeria who think the invasion of the homes of judges amounted to unconstitutional attempt to undermine the independence of the Judiciary.

It could well be stated that the retired Chief Justice of Nigeria eased himself out of office within a tumultuous time that the Nigeria Judiciary is enmeshed in alleged corruption. Supporters say the anti-corruption operations lately carried out by the Department of State Services is a smokescreen to witch-hunt officials of the judiciary.

The new Chief Justice of Nigeria who must be confirmed expeditiously by the Senate has his job cut out for him.

His main agenda is to clean up the mess and redeem the image of the judiciary. Even as controversy has trailed the failure of President Buhari to do the needful by appointing the Chief Justice of Nigeria and not acting Chief Justice of Nigeria, we will still demand that the new head of the nation’s judiciary must clean the Augean stable.

By tradition, the most senior justice of the Supreme Court, Justice Walter Onnoghen, might be the choice of the president in line with Section 230 (4) of the 1999 Constitution as amended, which provides: “If the office of the Chief Justice of Nigeria is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed those functions, the president shall appoint the most senior justice of the Supreme Court to perform those functions.”

By virtue of Section 231 of the 1999 Constitution as amended, it is the prerogative of the ‎president to appoint a CJN.

Section 231 (1) explicitly provides: “The appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate.”

‎At its emergency meeting held on 11 October, 2016, the National Judicial Council (NJC) recommended Justice Onnoghen, being the most senior justice of the Supreme Court, for consideration for appointment as CJN.

But the process of appointment was stalemated by the failure of the president to indicate his acceptance of the NJC recommendation by forwarding its nominee to the Senate for confirmation.

Senior lawyers raised alarm saying that unless the president exercised his powers under Section 230 (4) of the Constitution, there might be a leadership vacuum that could precipitate a constitutional crisis in the third arm of government.

The lawyers argued that except the president activated this section of the Constitution, the most senior justice of the Supreme Court could not automatically assume the leadership of the judiciary.

By swearing in someone in an acting capacity today, the president would have activated this proviso even as he leaves in abeyance the process of appointing a substantive chief justice of the federation. That was exactly what has happened.

‎But a Senior Advocate of Nigeria, Chief Sebastian Hon, had called on the president to act with dispatch and ensure that the name of the next CJN was forwarded to the Senate for clearance.

Hon, in a statement, ‎said it was scary that the name of the next CJN had not been sent to the Senate with less than a week before the incumbent, Justice Mohammed, would retire.

He said: “The tenure of office of the incumbent Chief Justice of Nigeria, Mahmud Mohammed, will expire at 12 midnight on 9th November, 2016.

“The name of Hon. Justice Walter Onnoghen, the next most Senior Justice of the Supreme Court, has since October 10, 2016, been forwarded to the president, who is expected, constitutionally, to forward it to the Senate for confirmation.

“Till this moment, Mr. President has not forwarded Justice Onnoghen’s name to the Senate for confirmation. This is scary, to say the least.

“Senate confirmation hearings are not jamborees but are grave constitutional exercises, requiring incisive investigative and at times confrontational posturing. In other words, the Senate needs to obtain the bio data of the CJN nominee ahead of time, to enable the upper legislative chambers to conduct a thorough investigation cum confirmation exercise.

“The time to act is now, as the Senate must confirm Justice Onnoghen latest on Tuesday, to further enable his swearing-in just before or just after Justice Mahmud bows out.

“The image of the Judiciary has nosedived in the recent times; and Mr. President must be seen to be preventing any further dent on the image of this crucial arm of government.

“Mr. President should once again act as the father of the nation, by forwarding Justice Onnoghen’s name for confirmation – since he is the only southerner entitled to occupy the seat of the CJN for close to 30 years.

“This gesture will go a very long way in cementing our sectional divides. Again, the time to act is now!”

This brings us to the need to emphasize the imperative of establishing stability in the hierarchy of the judiciary so the issues of violations of ethical codes by judges and other gross manifestations of corruption are tackled within the due process of the Nigerian constitutional law and not the whims or capricious tendencies of the President.

* Emmanuel Onwubiko is Head of Human rights Writers association of Nigeria and blogs @ www.emmanuelonwubiko.com