When will the sacked Lordships be prosecuted?

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The Judiciary, under Section 6 of the Constitution, is vested with the powers to uphold rule of law and maintain order in the society. It exercises these powers through the judges.

Every judge, upon appointment, is required to swear to a judicial oath and also pledge to abide by a code of conduct for judicial officers, handed down by the National Judicial Council (NJC).

In view of the important role they play in the justice administration process and the powers they wield, judges are seen as God’s representatives on earth, who are expected to always be above board.

Their conduct and decisions also go a long way in shaping public trust in, and perception of, the judicial system.

This is why many are often left in disbelief where judges are found to have contravened their code of conduct and ethics.

The latest examples are those involving the Chief Judge of Imo State, Justice Theresa Eberechukwu Chukwuemeka-Chikeka and the Grand Kadi of Yobe State, Kadi Babagana Mahdi.

The NJC, in a statement by its spokesperson, Kemi Babalola-Ogedengbe, said it resolved, at its 107th meeting held between November 13 and 14 that both judicial officers be recommended for compulsory retirement on grounds of alleged age falsification.

In the case of Justice Chukwuemeka-Chikeka, the NJC recommended her to the Governor of Imo State for compulsory retirement, with effect from October 27, 2021.

She is also required to refund to the NJC all salaries and allowance received in excess from 27 October 2021 till date.

The NJC said the recommendation was pursuant to its findings that Justice Chukwuemeka-Chikeka has two different dates of birth – October 27, 1956 and October 27, 1958.

It added: “However, 27 October 1956, appeared to be the consistent date of birth, but in 2006, the Chief Judge swore to an affidavit changing the date of birth to 27 October 1958.”

The Council found that “Kadi Mahdi has three different dates of birth – 10 December, 28 January and July – all in 1959, while his actual date of birth was 1952.”

It then concluded that “Grand Kadi Mahdi committed an act of misconduct in violation of Rule 02908 (i) and (ii) of the Public Service Rules, 2021 and ought to have retired from service 12 years ago.”

The NJC then “resolved to recommend Hon. Kadi Babagana Mahdi for compulsory retirement to the Governor of Yobe State and that he should refund all salaries and allowances received for the past 12 years.”

Before the NJC’s verdict, the Imo State House of Assembly had, on July 17, passed a resolution urging Governor Hope Uzodinma to sack Justice Chukwuemeka-Chikeka following her alleged indictment by an ad-hoc committee set up by the House to investigate the petition against her over an allegation of age falsification.

The House also resolved that its resolution and result of its committee’s investigation on the case be forwarded to the NJC for further necessary action.

This is not the first time judges would be dismissed on grounds of alleged age falsification.

In April 2020, NJC recommended the compulsory retirement of the then Acting President of the Customary Court of Appeal in Imo State, Justice Francis Chukwu¬ma Abosi.

The NJC said it recommended Justice Abosi for compulsory retirement following the alleged falsification of his date of birth from 1950 to 1958.

It said findings showed that Justice Abosi was supposed to have retired in November, 2015 when he clocked the mandatory retire¬ment age of 65 years.

The NJC rec¬ommended Justice Abosi’s compulsory retirement and deduction of the salaries he earned from November, 2015 till removal from his retirement benefit.

The NJC, a creation of the Constitution by virtue of Section 153, is saddled with many responsibilities.

It appoints, promotes and dismisses judicial officers, members and staff. It also screens and interviews candidates for judicial appointments.

Although many observed that the NJC has, over time, sanctioned quite a number of judges found to have run foul of the Code of Conduct for Judicial Officers, they are however uncomfortable that disciplinary activities of the council has been limited only to the enforcement of compliance or non-compliance with the Code of Conduct

The Socio-Economic Rights and Accountability Project (SERAP) stressed this in its report on judicial accountability, titled: “Go home and sin no more: Corrupt judges escaping from justice in Nigeria.”

SERAP noted that “the institutions constitutionally established to enforce accountability and discipline in the Judiciary have felt satisfied with applying only civil sanctions and have not deemed it fit to hand over corrupt judges to law enforcement agencies for prosecution nor recover the proceeds of corruption.

“This omission has left a destructive gap in judicial accountability in Nigeria. Judges are merely retired even when they have been found to engage in corruption against Nigerian anti-corruption laws and international standards.

“Corrupt judges not only keep the illicit proceeds of their crimes, they also get their pension and retirement benefits as if they have done no wrong while the victims of their corrupt acts are left without an effective remedy.”

Although not many are known, a case currently exist where the NJC reported a case of alleged criminal conduct on the part of a judge to a prosecuting agency.

The case is that of Justice Abosi, which the Independent Corrupt Practices and other related offences Commission (ICPC) said was reported to it by the NJC.

In a statement issued on November 17, 2022 the ICPC said it arraigned Justice Abosi for allegedly altering an official document to falsify his age and confer an unfair advantage upon himself.

The ICPC added that Justice Abosi was arraigned before Justice U.P Kekemeke of the High Court of the Federal Capital Territory (FCT), Maitama Abuja on a three-count charge bordering on forgery and conferring unfair advantage on himself by ICPC.

It added: “Investigations revealed that during his appointments in 2010 and 2014, Abosi filed November 17th 1958 as his date of birth in the National Judicial Council Data before the Chairman of the National Judicial Council (NJC).

“However, luck ran out on him when the NJC wrote to the Nigeria Law School to verify his records.

“Unfortunately, findings from both the Law School and his alma mater, the University of Nigeria Nsukka, showed that he was born on the 17th of November 1950.

“Consequently, the NJC suspended the defendant from office and recommended him to proceed on compulsory retirement, which he complied with. The Council then went on to report the matter to ICPC.”

It could however, not been ascertained as at when filing this report whether or not a judgment has been delivered in the case.

Since the decision by the NJC in the cases involving Justice Chukwuemeka-Chikeka and Kadi Mahdi, lawyers have continued to commend the council for its efforts to rid the Judiciary of bad eggs.

They are also asking for more, to include that judges found wanting should not only be eased out of the system, but should also be subjected to the judicial mill via prosecution in deserving cases.

The lawyers include Prof. Yemi Akinseye-George (SAN), Prof. Chidi Odinkalu, Otunba Tunde Falola, Babs Akinwumi and Oluwole Adaja.

Prof. Akinseye-George was of the view that whether or not the NJC recommends prosecution of any erring judge, law enforcement and prosecuting agencies should take the initiative when aware of decisions taken by the NJC.

He added: “The NJC under the new CJN has taken a right decision in removing some of the bad eggs from the judiciary. This shows that things are changing in the judiciary.

“The new leader of the Judiciary is mindful of her place in history. However, she will be subjected to intense pressure but hopefully, she will remain focused on the historic mission of sanitising the judiciary.

“The law enforcement agencies can now swing into operation by filing charges and prosecuting the judges who have been removed from office by the NJC.

“Whether or not the NJC made a recommendation to the law enforcement agencies to prosecute the persons concerned is immaterial.

“What is important is that these indicted persons are no longer shielded by the judicial office as decided in Nganjiwa’s case.

“They are now open to criminal investigation and prosecution. Should the relevant prosecuting agencies fail to act on the matter, private individuals may approach the Attorney-General for fiat to prosecute these individuals for the federal offences they may have committed,” Akinseye-George said.

Odinkalu who commended the NJC for a job well done, said: “Madam CJN (Chief Justice of Nigeria), Kudirat Kekere-Ekun has acted swiftly on this matter of age falsification by the Chief Judge of Imo State.

“She has done the right thing the right way. Hopefully, this sets a tone in the reshaping of judicial standards under her tenure as head of the NJC.”

Otunba Falola noted that the exercise the powers donated to the NJC by the Constitution is limited to non-criminal matters.

He added: “In other words, the power of the NJC to discipline judicial officers does not extend to the offence of theft, fraud etc.

“Equally important to mention, is the fact that, in the exercise of its power, it is the prerogative of the NJC to recommend any punitive measure it deems necessary in respect of any erring judicial officer, regard being to the surrounding circumstances of each case brought before it.

“I think this is what actually played out in respect of these judicial officers. Again, the fact that the NJC did not recommend the prosecution of the affected judicial officers does not mean the state cannot do so.

“In other words, the state can interrogate and prosecute them. Our laws are replete with different modes of commencement of criminal trials in Nigeria.

“The Police, ICPC and other relevant security agencies with the power to prosecute, can swing into action and set the law in motion for their prosecution once there are complaints laid before them, backed up with concrete evidence,” Falola said.

Akinwumi said what the NJC did regarding the two judges is highly commendable in line with the exercise of one of its statutory powers/functions.

He noted that although the Constitution that donates the powers of discipline of judicial officers to the NJC, it (the Constitution) did not give it the power to recommend for prosecution by ICPC or the police.

Akinwumi added that either of the ICPC or police can actually initiate criminal proceedings against the sacked judicial officers since the judges are no longer cloaked with the immunity pronounced by the Judiciary in case of Ngajiwa v. FRN (2018) 4 NWLR (PT. 1609) 301.

In that case, the Court of Appeal held among others that “by the doctrine of separation of powers in the Constitution, the EFCC lacks powers to investigate or prosecute serving judicial officers except such judicial officers have first been dismissed or retired by the National Judicial Council (NJC).”

Akinwumi noted that “in these cases, the NJC had established case of forgery against them (th judges). Therefore, it is an appropriate case for any of the agencies to initiate criminal proceedings against them.”

Adaja noted that the NJC’s recommendations in respect of both judges must be accepted by the Governors of Imo and Yobe states in compliance with the provisions of the Constitution before the law enforcement agencies can take any steps towards their investigation and/or prosecution.

“This is the mandatory requirement of the Constitution which is the grund norm, and must be complied with.

“If a judicial officer commits a criminal offence such as murder, manslaughter, theft, arson or armed robbery which are crimes committed outside the scope of the discharge of his official duties, such judicial officer may be apprehended, arrested and prosecuted by the law enforcement agencies without any recourse to the NJC.

“Remember that judicial officers are not covered from civil or criminal proceedings like the President, Vice-President, Governor and Deputy-Governors,” Adaja said.

Akinseye-George, Falola, Akinwumi and Adaja suggested the urgent need to reform the appointment process to judges to make it more stringent to ensure that inappropriate individuals do not find their way to the Bench.

Akinseye-George, who is the President of the Centre for Socio-Legal Studies (CSLS), noted that among other measures to curb judicial misconduct include strengthening the process of appointing judges.

He argued that every wrong appointment to the bench is a potential source of embarrassment to the entire judiciary.

The law professor added: “Lobbying for judicial appointment must be prohibited. The process must be defined by new legislation and made as rigorous as the procedure for appointment of Senior Advocates of Nigeria.

“The process must be made public and the members of the public including the Bar must be invited to comment on the character and competence of each candidate.”

Akinseye-George also suggested that the position of heads of court should be tenured, and that all heads of courts should serve for a fixed tenure of say, five years and then retire or return as a judge or justice of the court.

He added: “A situation where a head of court remains in office for over five years may do more damage to the system unless the majority of the judges of the court vote in a secret ballot to retain him or her as head.

“For example, in order to be appointed a Dean of the Law Faculty at the University of Ibadan, every qualified professor must enjoy the majority of yes votes from other professors and lecturers in the Faculty Board.

“We had a situation where the only qualified professor was not elected as Dean as he did not obtain the majority of yes votes from his younger colleagues.

“So the judges of every court must have a say in whether a head of court should serve a second term or not.

“A situation where a head of court becomes so powerful as to be able to dictate to other judges what to do is not good for the independence of the judiciary.

“There are some heads of court who are so powerful that their colleagues fear them. This is not good for the independence of the judiciary,” he said.

Akinseye-George stressed the need for the NJC to issue new guidelines for monitoring and evaluation of the performance and productivity of judges to match the improvement in their remuneration.

“For many years we advocated for this new enhanced judicial remuneration. The next step is to make sure that the judges deliver judgements faster and more efficiently.

“The existing judicial performance measurement system is now outdated. The raising of the retirement age of high court judges to 70 does not mean that a judge must necessarily be retained until 70 even if he or she is not meeting the standards.

“There must be new minimum standards designed to measure the performance of judges. Anyone who is not meeting up should be retired from the system to make room for more vibrant candidates,”Akinseye-George added.

Falola noted that falsification of age is one of the serious infractions of the law a judicial officer can be accused of, suggesting that to curb such criminal acts among judicial officers, stringent measures should be adopted in their selection and appointment.

Such stringent measures, he said include that “the appointment process should be more vigorous and stringent to the extent that a potential judicial officer should be made to produce certified true copies (CTCs) of his/her academic records right from the primary school level up to the Nigerian Law School, with a verifying affidavit confirming the accuracy of those records.

“Adopting the foregoing method will send a strong signal to those judicial officers who are found in these criminal acts. A judicial officer, who falsifies his age is worse than an armed robber who goes about the street robbing citizens of their valuables.

“He should not be trusted with the power to adjudicate on the affairs of the citizenry. He is as guilty as the criminal who appears before him,” Falola said.

In his opinion, Akinwumi said to curb such ignoble conduct among judges would start with the appointment process, which must be made transparent and without manipulation.

He added: “The pre-appointment screening by the Department of State Services (DSS) or other agencies should be made more relevant.”

This consideration, he said, should also apply to pre-appointment assessment carried out by the Nigerian Bar Association (NBA) on intending judges.

He added: “The public may be allowed to have input just as the public has input in the appointment of Senior Advocates and their snippets investigated.”

Adaja was of the view that to avoid such cases of judicial misconduct in future, the NJC must thoroughly scrutinise the credentials and resumes of persons to be recommended for appointment as judicial officers.

“Thus, persons of questionable character should not be recommended for appointment as judicial officers.

“Secondly, the NJC should put mechanism in place to verify documents and information submitted by applicants to be appointed as judicial officers.

“There are easy, fast and reliable modes of verifying credentials, results and other information from agencies and institutions across the country,” Adaja said.