It has been clear for several years that all is not well in the Nigerian judiciary. Nigeria is a federal republic comprising 36 states and a federal capital territory. Each state and the federal capital territory has its own judiciary, with the highest tier being the High Court. In addition, there is a federal system of courts, with the lowest tier being the Federal High Court. All High Court appeals are brought before the Federal Court of Appeal, which sits in nine judicial divisions. Appeals against the Court of Appeal are brought before the Supreme Court. As a result, an increased number of senior judicial officers and the so-called 'zoning' of appointments to the appellate courts are required; therefore, the best candidates are not necessarily appointed and the quality of judges in the senior courts is mixed. There are many excellent judges in the judiciaries around the federation; however, there are also many whose appointments have not been a result of their quality.
All superior court judges in Nigeria are appointed following the recommendation of the National Judicial Council (NJC), created under the Constitution. In the case of federal judges, the recommendation is to the president and in the case of state judges, the recommendation is to the state governor. The NJC can also recommend the removal of judges from office and exercise disciplinary control over them. The NJC comprises 22 persons, of whom 17 are current or retired judicial officers. It is chaired by the chief justice of Nigeria and the deputy is the second most senior Supreme Court justice. Of the 22-person council, 12 are appointed by the chief justice to serve for two-year terms.
Corruption in the ranks of Nigerian judicial officers has been considered an issue since the return of democratic governance in 1999. However, the authorities have been accused of lacking any genuine desire to address the problem that was believed to occur most in political cases, especially election petitions. In occasional cases judges were penalised by the NJC. However, the penalties imposed were often viewed as being inadequate insofar as no judges were prosecuted. The most serious penalty imposed was dismissal, which seldom occurred, with the most common being compulsory retirement, which enabled the judge to retain retirement benefits.
All that changed on October 9 2016, when a number of Nigerian judges, from the Supreme Court to the High Court, were arrested on suspicion of having engaged in various acts of corruption. What made this even more striking was the fact that the arrests were effected by the State Security Service (SSS) – a security agency created in 1986 and responsible for internal security matters – rather than the agencies ordinarily expected to be concerned with such matters, such as:
- the Independent Corrupt Practices Commission, which was established to deal with corruption in the public services;
- the Economic and Financial Crimes Commission (EFCC), which was established to address economic crimes; or
- the Nigeria Police Force.
The use of the SSS was widely condemned, with the Nigerian Bar Association president condemning the action as a "Gestapo-style operation" (for further details please see "Judicial arrests in anti-corruption investigation rock legal community").
Some of the judges arrested were eventually charged with bribery offences and the cases are progressing through the courts. In the first case in which a decision was handed down, a Federal High Court judge was accused of receiving bribes and possessing sums of money that exceeded that which he should legitimately hold. At the end of the prosecution, a 'no case' submission was made (ie, the prosecution had failed to adduce sufficient evidence to establish a case against him). This was upheld and many observers considered the decision to be strange, given the evidence that had been presented. The prosecution has appealed the decision.
More recently, the Court of Appeal dismissed corruption charges against another Federal High Court judge (not one of those arrested in October 2016) on the ground that the EFCC, which had brought the claims, had had no power to do so. The court accepted the judge's argument that the prosecution amounted to the exercise of disciplinary control over the judge, and that this usurped the functions conferred on the NJC by the Constitution. The Court of Appeal held that since the offences with which the judge had been charged also infringed the Code of Conduct for Judicial Officers, the judge could not be prosecuted unless the NJC gave a verdict in respect of the judge and, in exercising its powers to exercise disciplinary functions, handed the judge over to a prosecution agency for investigation and prosecution. As this had not occurred, the Court of Appeal held that the charges were invalid and dismissed them. The court stressed that the decision was not intended to state that judges are immune from prosecution for so-called 'non-judicial acts' and explained that the decision related only to judicial acts that were also criminal acts (eg, accepting bribes in return for the delivery of judicial decisions). The EFCC intends to appeal the decision to the Supreme Court.
Many legal practitioners view both of these decisions as incorrect but have concerns that they may not be corrected in subsequent appeals. One legal practitioner opined that although the decisions may be incorrect, they are understandable as acts of self-preservation on the part of the judiciary, necessitated by the heavy handedness of the SSS when carrying out the October 2016 raids on judges.
In the meantime, on February 9 2018 the NJC announced penalties against two judges. The judge who was acquitted on a no case submission was compulsorily retired for reasons other than those for which he had been criminally charged. A second judge was dismissed for falsifying his records as an advocate, having claimed – in support of his application to be appointed as a judge – to have been counsel in several cases in which he had no involvement. The judge was ordered to repay all of the salary and allowances that he had received during the two-year period in which he had served as a High Court judge. While this is commendable, the claims against the judge could also be the basis for a prosecution for dishonesty. However, this option appears not to have been considered.
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For further information on this topic please contact Babajide Oladipo Ogundipe at Sofunde Osakwe Ogundipe & Belgore by telephone (+234 1 462 2502) or email (email@example.com). The Sofunde Osakwe Ogundipe & Belgore website can be accessed at www.sooblaw.com.