Worried at the challenges confronting the nation’s judiciary, some concerned Nigerians call for a stakeholders’ conference to put a stop to the ongoing rot in the system
When Justice Dahiru Musdapher finally bows out as the head of the nation's apex court, the Supreme Court next month, he would have put in more than five decades of service to the nation as a judicial officer.
With that number of years during which he climbed the steep and slippery slope of judicial hierarchy, wielding the awesome powers of life and death over lesser mortals in the name of delivering justice, there is no doubt that he has seen it all and therefore deserves a peaceful rest. And he is looking forward to it. “For me, I am tired, I have tried my best… and I have no regrets," he said in a hoarse and obviously tired voice during an interview with the magazine.
Although a towering giant in knowledge particularly in the area of jurisprudence, the diminutive 70-year-old man is bowing out precisely July 14, the eve of his 70th birthday. If he is retiring in grace, as many believe he is, he is however leaving behind a judiciary in tatters, a judiciary believed to be reeling in corruption and enmeshed in controversy.
But this apparent blot is not peculiar to his short tenure. He inherited the many ‘sins’ of the judiciary from his predecessors, some of who retired under controversial circumstances. For the Nigerian Temple of Justice, many say things began to fall apart from the days of the military when some judges and justices became pliable tools in the hands of power-drunk military leaders. Things got to a level in the early 1990s when some judges including Supreme Court justices were accused of collecting costly cars and other items as personal gifts from the executive at the federal and state levels.
Joe Okei-Odumakin, president, Campaign for Democracy, insists that there have always been allegations of corruption against the judiciary. “There have been charges of corruption against the judiciary over the years. There was the Justice Kayode Esho panel, which probed allegations of corruption in the judiciary and returned a damning verdict detailing sordid cases of corrupt practices by some judges. It was on the basis of that that some corrupt judges were kicked out of the judiciary,” Okei-Odumakin recalled, pointing out that “all these have proved that our judiciary has not been integrity-driven.”
Instead of abating, allegations of professional and ethical misconduct against supposedly honorary members of the hallowed third arm of government have increased in style and tempo, thus raising eyebrows about the quality of character of virtually all stakeholders in the temple of justice including legal practitioners and the police.
For example, a former president of the court of appeal had to deny allegations bordering on his integrity. It was also alleged that during the administration of late president Umaru Yar’Adua over N1 billion was accepted as bribes to influence the decision of the governorship election tribunal of a state. The authorities reportedly got wind of the deal and promptly dissolved the tribunal before judgment could be delivered.
The trial and conviction of James Ibori, former governor of Delta State, for money laundering and other corrupt practices, not in Nigeria, but in far away Britain was another embarrassment to the Nigerian judiciary. During his many appearances in the Nigerian courts, a federal high court sitting in Asaba, Delta State had dismissed all the allegations against the politician for want of evidence.
Justice Musdapher is no doubt aware of the rot in the judiciary. But he says the situation is not peculiar to Nigeria and that it is being addressed. What is peculiar, as he noted in the interview with the magazine (See box) is that in the Nigerian case, “we got complaints all the time about corruption but we ask for evidence and we don’t get any. You accuse a judge of corruption without presenting evidence, what can we do… Without the evidence, we do nothing.” But who brings the evidence? The petitioners and the police, he said, lamenting that while many petitioners have refused to testify against judges, the police in most cases had been doing a shoddy job.
The retiring chief justice did not also spare the lawyers or counsel whom he accused of asking for frivolous adjournments and buying more time for their clients and collecting higher legal fees instead of helping the Bench in the search for justice. What is intriguing is the fact that since the return of partisan politics in 1999, the judiciary has not been able to insulate itself from the shenanigans of the Nigerian politics. This is an issue that is no doubt contributing to its perception as a threat to Nigerians’ access to justice. Thus to Justice Musdapher, “most of the problems really affecting the judiciary are political, people are not satisfied normally in politics, and we have to be realistic. In Nigeria these days, the stakes in political elections or issues are very high. We have to accept that as a fact and anybody who aspires to become a leader in politics will ensure that no matter how, he will achieve that ambition. And then in the process, if he does not win, the judiciary has been compromised and if he wins the judiciary is all right…”
With this comment, what immediately comes to the mind of an average Nigerian is the raging controversy involving the suspended president of the federal court of appeal, FCA, Justice Ayo Salami, which has pitched critical institutions in the judiciary including the National Judicial Council, NJC, against the presidency on one hand, and the ruling party, the Peoples Democratic Party, PDP, and the opposition, notably Action Congress of Nigeria, ACN, on the other. The matter has also caused divisions within the Bar, and others with vested interests within the society, including human rights groups.
The NJC suspended Justice Salami on August 18, 2011 after he refused to apologise to Aloysius Katsina-Alu, former chief justice of Nigeria, CJN, following the report of a panel set up by the council. The council indicted Salami for allegedly breaching the code of conduct by lying on oath against Katsina-Alu, when the latter was the CJN and chairman of the council. The NJC based its action on the reports of two panels headed by justices Umaru Abdullahi and Ibrahim Auta respectively, which investigated him and Katsina-Alu for alleged misconduct. The Auta-led panel had in his report advised that Salami should tender a written apology to Katsina-Alu and the NJC. It also recommended that Salami be cautioned in writing having purportedly breached Rule (1) of the Code of Conduct for judicial officers.
President Goodluck Jonathan suspended Salami on the NJC recommendations even when it was clear that Salami was in court challenging the purported order. Nine months later, the NJC now under the leadership of Musdapher as CJN, is asking the President to reinstate Salami upon the recommendation of a sub-committee made up of Justice Mamman Nasir, Justice U. Kalgo and Justice Bola Ajibola. An ad-hoc committee headed by Aloma Mukhtar, Musdapher’s likely successor, also worked on the sub-committee’s report and reported back to the NJC.
Musdapher admitted that the Salami case is complicated. It really is, much more because it started when the two warring justices, Salami and Katsina-Alu veered into the political arena while on the hallowed Bench. From published reports and facts deposed to in the courts, Katsina-Alu then as CJN fired the first salvo by dabbling into the Sokoto governorship election petition case which he arrested at the point the court of appeal was about giving its verdict.
Salami in a sworn affidavit told the court that Katsina-Alu had asked him to compromise justice in respect of the Sokoto case, a move he resisted. “The first defendant (Katsina-Alu) asked me to disband the panel I had set up for the appeal on the excuse that if the panel allowed the appeal and removed the governor, the ripple effect would lead to a removal of our highly revered Sultan of Sokoto.” Salami’s refusal to play along naturally irked the former CJN who saw it as an act of insubordination.
What happened next was the ‘promotion’ of Salami to the Supreme Court, an act Salami declined describing it as a move to get him out as president of the court of appeal to allow certain people perpetrate injustice to pending election petitions and appeals. To Salami, his ‘promotion’ was questionable as he was already senior to most of the justices in the apex court and almost at par with the CJN himself.
As the issue festered due to the insistence of Salami to defend his integrity through court processes and Katsina-Alu’s unwillingness to lose face and promote insubordination and misconduct allegedly by a junior officer, the NJC membership got divided into two: supporters of Katsina-Alu and loyalists of Salami. Then politicians messed things up through allegations against either party. While the opposition parties particularly the ACN hold out Salami as a courageous and incorruptible judge, the ruling party, the PDP sees him as an agent of the opposition and friend of Bola Tinubu, ACN leader and former Lagos State governor.
PDP’s grouse against Salami is the loss of Ekiti, Oyo, Osun, Edo and Ondo states’ governorship election petitions to ACN and Labour Party (in Ondo) at the court of appeal, which Salami led. The PDP is still in court trying to push its case for Salami’s indictment for alleged misconduct in the election petitions involving the party especially in Osun State. This is perhaps why the party is objecting to any move by the NJC to reinstate Salami. For instance, the chairman of the party in Osun State, Ganiyu Olaoluwa said that the decision of the NJC to reinstate Salami “amounts to an affront on the judicial system and the import is that, if members of the Bench could ignore pending court matters, other Nigerians will be right to do so, and the country will surely head for a state of anarchy.”
However, Tinubu, ACN leader, observed that, “for reasons only they know, the Federal Government seems eager to provoke crises where there would be none if only they obey the rule of law… Nigerians know this is part of a larger script to terminate the career of a courageous judge (Salami) and amputate justice and subvert the rule of law.”
The situation now is such that is degenerating into a Frankeinstein monster with President Jonathan caught in between doing justice and playing politics. If he vetoes the NJC latest recommendation, he will be seen to be doing his party’s wish and that of Mohammed Adoke, the attorney-general of the federation and justice minister, who had maintained that Salami should remain suspended from his post pending when substantive issues in the court on the controversy are dealt with. On the other hand, if he endorses the NJC advice, he will be risking contempt of court although this position will be acclaimed by the opposition and professional bodies such as the Nigerian Bar Association, NBA, as doing justice to Salami and the larger Bench that is now trying to redeem its already battered image. Either way, the President is literally trapped on an issue he did not originate. When he intervened last August, his spokesman, Reuben Abati said Jonathan acted “in the best interest of the judiciary to avoid a vacuum and maintain stability. If he had withheld accent he would have been criticised still.” To him, the President is not a party to the case, “it will be unfair to drag him into it.”
Unfortunately for Jonathan, the NJC has dragged him into the fray this time around. The ball is now in his court. Should he ignore it and cause a constitutional crisis in view of reports that the acting FCA president’s tenure cannot in law be extended indefinitely? What is the way out of this mess that is putting the judiciary in a bad light?
Wole Olanipekun, SAN, and former president of the NBA, described the Salami-Katsina-Alu matter as technical and confusing. He blamed the situation on the composition of the NJC, which made it play the role of a judge in its cause. According to him, members of the NJC include the CJN and some justices in the Supreme Court and some appellate courts. They are also members of the Federal Judicial Service Commission, FJSC, involved in the discipline of judges. “At the FJSC, all the personnel at the NJC are members [of FJSC] and they make recommendations to NJC. The fundamental principle of law states that you must not be a judge in your own cause. It is abnormal. Where are the checks and balances within the NJC and the FJSC?”
He pointed out that the NJC erred by suspending Justice Salami and asking the President to approve his retirement in the first instance. “That means that while suspending him, they should have been categorical. They should have said for not apologising, this is your punishment: we place you on suspension for three months and in that case they didn’t need to go to the President. They only would have just asked the President to appoint the most senior person in the court of appeal to act and at the end of the three months suspension, he gets back to office,” he reasoned.
However, for Jiti Ogunye, human rights lawyer, the solution to the apparent impassé is “for the NJC to direct Justice Salami, in an unambiguous manner, to resume his duty as the president of the appeal court, copy Justice Adamu (acting PCA) and by the same letter direct him to handover to Salami. Let us now see if Justice Adamu would say ‘no, I was appointed by President Jonathan.’ The minister of justice is exploiting the miscommunication to politicise the issue.”
Ogunye believes that “the logjam is not too real but artificial and deliberately created to give impression that the matter is mired in the court and therefore is not going to get result. The way out is for the National Judicial Commission exercising its power under Section 292, sub-section 1 (a) (i) of the constitution and Section 2 of the said schedule by directing Justice Salami to resume duty as the president of the court of appeal.”
Apart from the suspicion that the NJC was playing the role of a judge in its cause, some people also allege that some of its members might have been politically partisan. In this regard, fingers are being pointed at Rotimi Akeredolu, former NBA president, one of the governorship aspirants of the ACN, an opposition party in Ondo State. It is alleged that he was seen in the crowd of ACN governorship aspirants for the 2013 governorship race as far back as November last year. Sources feared that there might be more of such people in the NJC.
Although Olanipekun is unhappy that judges are being accused of corruption, he blames the situation on a “combination of factors” including the incursion of the military in politics and the way and manner of picking judges, saying, “We do not investigate the roots, (and) antecedents of a would-be judge in Nigeria… It is the fault of the system. It is the fault of the government; it is the fault of the National Judicial Council, it is the fault of each of the judicial service commissions in the states; it is also my fault. It is also the fault of each chief judge of a state; it is the fault of the chief justice of Nigeria and also the fault of those who recommended me because they know I should not have been there (at the Bench).”
Okei-Odumakin on her part traced the rot in the Judiciary to the fall of general ethics in the country. To her, “it will be a miracle if the judiciary had been immune by the general charade. Also, the corrupt political system, which has thrown up odious men and women as political leaders, has had an unsavoury effect on the integrity of the judiciary. The politicians have used their ill-gotten wealth to penetrate the judiciary for their selfish ends and the greatest area of exposure of the judiciary to the rogue politicians has been their adjudication over election petitions while the politicians use illicit funds to influence judgment in their favour. The election petition process has produced what a news magazine called “billionaire judges.” As Okei-Odumakin aptly puts it, there is no doubt that corruption has become a glorified thing in our society and this has rubbed off on the judiciary.
Now, the question is, who bells the corruption cat. In other words, where lies the solution to the corruption malaise in the judiciary? Olanipekun calls for a state of emergency to overhaul the whole judicial system in order to purify it. This, he said, requires a conference of the legal profession whereby “we map out strategies at restructuring the legal profession. I am not in support of a situation whereby we can call names. There are things people like us would not say publicly but when it is in-house, you can talk. As a lawyer, if we have a conference of the judiciary, I can accuse some people.” Okei-Odumakin calls for “general ethical revival in the polity” and payment of proper remuneration after which the judges that engage in corrupt acts will be made to face the music.
But Justice Musdapher prefers a gradual reform of the system. Already, he has started the reforms, which include amending relevant sections of the constitution particularly areas dealing with court rules and procedures, re-writing archaic laws and introducing e-litigation at the Supreme Court “to ensure that things are done a little bit faster.” The outgoing chief justice says all the above need more time to execute. Unfortunately for him, his time at the Bench is up and he must quit for a successor to implement the reforms and retrieve the system from impending collapse. The challenge now obviously goes to his successor who also needs the cooperation of all the stakeholders in the system – the executive, the legislature and the larger society. Will the judiciary be cured of this malaise? That is the question on the lips of many people who are apprehensive that complete loss of confidence in the judiciary may compound the current state of insecurity in the country.
Additional reports by Wola Adeyemo, Juliana Uche-Okobi and Folashade Adebayo