Appeal Court Ruling on Judges’ Trial
The ruling of the Court of Appeal in Lagos on Tuesday last week, to the effect that the Economic and Financial Crimes Commission [EFCC] cannot prosecute a serving judge until he is dismissed from the bench by the National Judicial Council and recommended to it for prosecution has generated widespread public interest in this country […]
The ruling of the Court of Appeal in Lagos on Tuesday last week, to the effect that the Economic and Financial Crimes Commission [EFCC] cannot prosecute a serving judge until he is dismissed from the bench by the National Judicial Council and recommended to it for prosecution has generated widespread public interest in this country because of its many implications.
The ruling was delivered on the appeal to it filed by Justice Hyeladzira Nganjiwa of the Federal High Court, who was charged to court by EFCC before Justice Adedayo Akintoye of the Lagos High Court, Igbosere on a 14-count charge. In the charges filed on June 17, this year, EFCC accused the judge of allegedly receiving $260,000 and N8.65 million “from suspicious sources” through his bank accounts between 2013 and 2015. It accused Nganjiwa of using the money to enrich himself as a public officer, contrary to Section 82 (a) of the Criminal Law of Lagos state, 2011. EFCC also accused the judge of giving false information to its agents. Nganjiwa raised a preliminary objection at the high court which was overruled and he then went to the Appeal Court, which ruled in his favour.
The import of the Appeal Court ruling, unless it is set aside by the Supreme Court, has implications far beyond the fate of Justice Nganjiwa. Since last year EFCC has filed many cases against serving judges for alleged corruption. Sometime last year, the Department of State Services [DSS] raised eyebrows by clambering up the residences of judges at night, including two Supreme Court judges, in order to gather evidence of corruption. All these cases might now come to a screeching halt due to this ruling. Indeed, the two security agencies did acknowledge that suspected misdeeds by judges should ideally be reported to the NJC. According to them, they sent the information they gathered to NJC but it did not act on it for many months, hence their decision to act without its recommendation.
Last week, leading lawyers in the country mostly agreed with the Appeal Court ruling. Human rights lawyer Ebun Olu-Adegboruwa for example said under Paragraph 21(b) and (d) of the Third Schedule to the 1999 Constitution, NJC is to exercise the power of disciplinary control over all judicial officers. Without this, he said, “judges would become liable to doing the bidding of the executive, since it had become possible to pick up a judge and lock him up whenever he delivers a judgment that is not favourable to the executive.” He also recalled President Muhammadu Buhari’s slip of tongue statement to the Nigerian community in Kenya last year, when he said judges are the headache of his regime’s anti-corruption campaign. Olu-Adegboruwa however added that he hopes the ruling would not be a blanket one involving everything about a judge but will be limited to matters involving the discharge of judicial duties.
Chief Mike Ozekhome, SAN also said the ruling affirms the doctrine of separation of powers. He said, “The power of EFCC to try any person can be found in the EFCC Establishment Act of 2004. This Act is far inferior to the provisions of the Constitution, which gives NJC power of superintendency over judges.” Be that as it may, we must add here that the constitutional provision that NJC should exercise powers to employ, discipline, reprimand, sanction, suspend and fire judges makes sense provided it does so efficiently, honestly and impartially.
An NGO, Access to Justice (A2J) drew attention to another likely implication of the ruling when it said, “It would mean that at the level of the states, no Magistrate, Kadi, Area or Customary Court Judge could be investigated by the law enforcement agencies until the state Judicial Service Commission had first ‘stripped’ such a judicial officer of his or her judicial standing. The same applies to court employees who are under the disciplinary control of the state judicial service commissions. It would also mean that a police officer could not be investigated or prosecuted for any crimes committed in the course of discharging his functions until the Police Service Commission (PSC) had first stripped him of his standing as a police officer.”
To stretch the ruling to another level, it will also confer some kind of immunity on legislators. Just like the judiciary, the legislature is also an independent arm of government and by the same token, MPs cannot be prosecuted by executive agencies unless they assemblies’ disciplinary procedures have been exhausted. The same argument that the Executive could abuse its prerogatives and victimise legislators could be made in this case, as indeed has been alleged already in the trial of Senate President Bukola Saraki before the Code of Conduct Tribunal. The damage will however be limited if, as Olu-Adegboruwa suggested, the process is limited to matters done in the exercise of legislative functions, not other matters.
EFCC has already described the ruling as “a dangerous precedent that has no basis in law.” It also said that it will appeal the ruling to the Supreme Court. That is as it should be. We must all keep our fingers crossed and await the ruling of the apex court if and when the matter is taken before it.