Afe Babalola (SAN)
Usurpation of powers of National Judicial Council
Firstly, I concede that corruption is endemic in our society and that if not properly tackled, it will continue to prevent the country from achieving the objectives of its founding fathers. I, however, do not believe that the method adopted by the DSS was appropriate in the circumstances or that it was totally unavoidable.
Nigeria operates a democratic system of government which anywhere in the world places emphasis on separation of powers between the three arms of government which arms are independent of each other. Of these, the judiciary enjoys primacy of importance when it comes to the issue of autonomy and independence as a judiciary which is not free from political interference will bring about the demise of a nation perhaps faster than corruption or any other vice would.
World over, one of the widely accepted means of guaranteeing such independence to the judiciary lies in the establishment of a judicial council.
In an article entitled ‘Guarding the Guardians: Judicial Council and Judicial independence’ the Law School of the University of Chicago stated, Judicial councils are bodies that are designed to insulate the functions of appointment, promotion and discipline of judges from the partisan political process while ensuring some level of accountability.
Judicial councils lie somewhere in-between the polar extremes of letting judges manage their own affairs and the alternative of complete political control of appointments, promotion, and discipline. The motivating concern for adoption of councils was ensuring independence of the judiciary after periods of undemocratic rule. To entrench judicial independence, most countries enshrined the judicial council in their constitution.
It is for this reason that the 1999 Constitution, in Section 153, provides for the establishment of the National Judicial Council and in paragraphs 21(b) & (d) of the Third Schedule grants to the council the power to exercise disciplinary control over judicial officers.
As the allegations made against the judges are said to arise from or pertain to their office as judges, I am of the view that the Constitution requires that any infraction by the said judges be firstly investigated and resolved by the National Judicial Council to the exclusion of any other body or authority. Aside from the fact that this is what the Constitution requires, arresting serving judges without prior sanction of the NJC presents some very unique problems. If the judge is arraigned and granted bail, what impediment is there to prevent him from continuing to sit as a judge pending the determination of the allegations against him? Even if he is placed on suspension pending the trial, it is still conceivable that he may retain his job if he is eventually acquitted of the allegations against him. Thus, his accusers may eventually still find themselves before his court in other matters. Would it not be better and more practicable to firstly have the NJC investigate the matter and possibly remove from him the toga and aura of a judge before such arrest and arraignment? That the DSS acted as it did on the grounds that it was conducting an investigation or a “sting operation” as it described it was therefore a clear usurpation of the Constitutional powers of the NJC.
What is equally worrying is that by the provisions of Section 4 of the National Security Agencies Act, the DSS acts under the coordination of an officer in the office of the Presidency. I state unequivocally that such a scenario derogates from the independence of the judiciary which the establishment of the NJC is designed to guarantee. In stating this, I am not unaware of claims that the NJC failed to act on reports made to it about the alleged wrongdoings of the judges concerned. I recall that in the week leading up to the raids, the NJC sanctioned three judges and even recommended the prosecution of one. As I believe that those particular decisions were taken after painstaking investigation, it is not inconceivable that what has been described as the failure of the NJC to act may, in reality, be attributed to the desire and if I might add, the duty, of the said body to conduct thorough investigations. Every individual, no matter his status, is guaranteed by the Constitution a right to a fair hearing.
On the whole the entire episode is one that unfairly denigrates the entire judicial system as an institution. It does a lot of disservice to the vast majority of judges and lawyers who carry out their duties and practice their profession in compliance with the best ethical standards. By conducting those simultaneous raids across several states in the dead of the night, the DSS has unwittingly created a wrong impression in the minds of millions of Nigerians that the judiciary is not only an unreliable but a criminal organisation. For the sake of our democracy, this is a misconception that must not be allowed to fester. No country, no matter how well intentioned its political leaders are, can aspire to greatness if its judicial arm is denigrated and held in contempt. While the judiciary itself must be awake to its huge responsibilities, its efforts in this regard will surely not be helped by the erosion of its independence.
Babalola, a Senior Advocate of Nigeria, writes from Ibadan, Oyo State.