Is disciplining of judicial officers exigency or certainty of law?

It is no longer news that the houses of Judges of superior courts were broken into in the dead of the night by men of the Department of State Services (DSS). It is equally no longer news that the DSS is minded to arraign these officers in Nigerian courts.

What remains unattended to yet is: Does the DSS and indeed the executive arm of government by whatever name called have the power, under the constitution to exercise the powers, they have so far exercised, and also seeking to exercise over Judicial officers outside the National Judicial Council(NJC)?

A brief excursion into Nigeria here will do some help. Nigeria is a federation that operates a written and rigid constitution. Every institution derives and exercises their power from it. Any exercise of power outside of this constitution is always declared as unconstitutional, null and void and of no effect whatsoever. This is irrespective of their intentions and or how altruistic such exercise of power may be portrayed. This is the position of the law in the night when these inversions of the homes of Judicial officers were done.

Expectedly, this drew reactions on both sides. The Executive justified their action by labelling the affected Judicial officers as corrupt. They also implied and indeed portrayed the NJC in the media as corrupt, on the account of which they have refused to discipline these officers. This refusal, according to them, ignited the DSS raid, without sparing any thought on whether or not this is constitutional.

By this line of argument, the end justifies the means. The NJC fired back, insisting that it is within their exclusive constitutional powers to discipline erring judicial officers. This power excludes the Executive, by whatever name and whatever motive. Motive here becomes more suspicious if the accusation against the NJC borders on a function they had performed already. By this argument, the means must justify the end.

I have mentioned already, that Nigeria operates a written and rigid constitution. Every power exercisable by all organs of government MUST flow from this constitution as only the constitution allocates such powers. Importantly, this constitution is supreme. By supreme, it means supreme to the Executive and President; supreme to the Legislature and supreme to the Judiciary.

Interestingly, the safe custody, by way of interpretation of this constitution is entrusted on the Judiciary alone. Going to the constitution, Section 153(1) (i) created the NJC, when it provided: “There shall be established for the Federation, the following bodies: inter alia National Judicial Council”. Section 158(1) provided, in the exercise of its power to make appointments or exercise disciplinary control over persons, the NJC shall not be subject to the directions or control of any other authority or person.

Section 160(1) provides: subject to subsection 2, any of the bodies (National Judicial Council) may, with the approval of the President, by rules, or, otherwise, regulate its own procedure or confer powers and impose duties on any officer or authority for the purpose of discharging its functions.

On the powers of the NJC, the third schedule, part 1(21) (b) confers on the National Judicial Council the following powers: Recommend to the President the removal from office of judicial officers…, and to exercise disciplinary control over such officers.

The plain meaning of these sections are: a. The NJC draws up its own rules of procedure. Once these rules are approved, they are no longer open to exigencies. b. The core power of the NJC, in addition to the recommendation for the appointment of judicial officers, is the disciplinary control over Judicial officers. Discipline, according to the Black’s Law Dictionary is correction, chastisement, punishment, and penalty. It follows therefore that once any of these is involved as it affects Judicial Officers, it is within the core powers of the NJC to the exclusion of any other body or persons. C. In the exercise of these powers, by the NJC, it is not subject to the direction or control of any other authority or person. Thus, the Executive, including the president and or any of its organs and agencies is not the supervisor of the NJC. These are the undeniable provisions of our constitution that are written. That they are written, the Supreme Court of America in the locus classicus case of MADBURY VS. MADDISON said, is so that we do not forget or breach them at will. This is what the President of Nigeria swore to protect at all times and circumstances.

Some of our country men, borrowing the media microphone have shouted to the high heavens, insisting that these judicial officers be killed even if it is in breach of our constitution. Some of these countrymen included the “learned” and even the “silk”. Employing the language of politics, they scream, “kill corruption” or “corruption will kill us”.

According to this mob, the means to this “kill” is not necessary so long as the “kill” is achieved. At least, it served our exigency for today. Tomorrow they insist can wait. In their pretensions, they tend to suggest that we have no “yesterdays” to guide us on matters of this sort. In this unholy course, they are desperate to inflict on us all a sense of collective amnesia, throwing our reasons and heads to their fancies that they have refused to define.

Pathetically, they forgot that they are dealing with legal issues that are built on certainties, hierarchies and finalities. Certainties of what the law provides, hierarchies of the sequence of these laws and the finalities that they provide. These in turn, gives our lives and society order, predictability and progression. Anything that disrupts these disrupts our societal equilibrium, which is bound to provide a trip off.

A short peep into our recent history will help. In LAKANMI VS. ATTORNEY GENERAL, WESTERN REGION, the issue was; the question between the Constitution of Nigeria, (then the 1963 constitution) and the will of force,(then the Military Decrees), which should weigh higher? The Supreme Court then (as it is playing out again today) went with the constitution. The military responded with ouster clauses and the Judiciary caved in. They followed up swiftly by literally disbanding the Supreme Court, as they brought in outsiders into the Supreme Court. Their briefs were brief “our words and decrees must not be challenged!” This is how we began the journey into the steep that culminated in General Sanni Abacha as its peak.

Interestingly, the excuse and media trial of Mr. Lakanmi then was that he was corrupt. Our constitution and laws therefore, must be destroyed in pursuit of Lakanmi. Interestingly, the head of our Executive arm today was in the top echelon of government, serving in their highest ruling body during this period of infamy, and gross human right abuses.

Without any scintilla of doubt, the constitution envisaged the need to discipline judicial officers. That is why it made it copious provisions for it. Coming from our recent history of executive impunity, it laid down detailed provision on how this is to be achieved. Knowing that the Judiciary must always be the last man standing, the key to our liberties is placed in his hands, with a strict mandate not to share it with any other authority or person. The logic is simple. A judicial officer must not be under any form of apprehension in this discharge of his functions. In the event that he falls short of the standard of his office, laid down procedures are kept on how to deal with him. This laid down procedures are kept in the hands of this body called the NJC, who themselves must function independently and without fear or intimidation. This intimidation therefore and or absence of it is inbuilt in the persons that occupy these offices. It follows therefore that what the DSS did on the night of October 7, 2016, when they broke into the houses of the Supreme Court Justices and other judicial officers, ransacked their houses, files, arresting and detaining them in their offices is the definition of intimidation of judicial officers. It will produce only one outcome- control of these officers in the discharge of their duties. Like I observed earlier, the mob reaction is that they are corrupt and therefore should not be entitled to the protection of the laws and constitution of the Federal Republic of Nigeria even when this protection is available to other Nigerians.

Some, citing the Administration of Criminal Justice Act have called these judicial officers common criminals, pontificating that they are equal before the law. Thankfully, I was a member of the team that produced the Act. I have checked through it, searching my memoirs with the sole question: was the Administration of Criminal Justice Act intended and or enacted to be superior to the constitution? Will any such section of the ACT not be declared null and void and of no effect? Put more clearly, if the constitution provides and put the discipline of judicial officers in the hands of the NJC alone, how does the provision of the Administration of Criminal Justice Act come in? How does the DSS, which is an inferior organ to the NJC (being a creation of statute, as against the constitution) come in?

We need to be clear on this; whereas the Nigerian police and all the other bodies in the constitution, derives their life and existence from the constitution, the DSS does not enjoy such luxury.

Its attempt therefore to usurp the powers and functions of the Police, and or the NJC is a breach of our grand norm, the equivalent to a coup d’état. The argument therefore that this abuse and breach is exigent and therefore should not be questioned is “ouster clause”, seeking to re-enter into our body polity through the back door. That a section of the media and those who ought to know better are applauding this coup is a throwback to the dark years, we should be ashamed of.

Already, some well-meaning individuals are beginning to worry, wondering if all the efforts put into this media trial, conviction and sentencing is all about corruption and nothing more? Cross check on these facts again on those arrested: 1. Two Justices of the Supreme Court. 2. One Justice of the Court of Appeal 3. Three Judges of various State High Courts 4. One Judge of the Federal High Court 5. One Judge of the Federal High Court whose house broken into in his absence. Of these numbers, the NJC stated (without contradiction yet) that there is no compliant against two of the Supreme Court Justices.

The DSS could not prove their case against Justice Pindiga of the High Court, Gombe State and therefore thrown out. The one from the Federal High Court has his complaint still been investigated. The other two have been disciplined and recommended for removal as judicial officers with a call to the Police to take it up from there. If as the NJC asserted, there is no compliant against the Supreme Court Justices from any quarters, including the DSS, on what was the infraction of their rights based?

If the other two have been recommended for removal as judicial officers by NJC awaiting executive action, on what basis are they accusing the NJC of shielding corrupt officers? If NJC did not find the other officers culpable, is the DSS intransigence not giving the meaning of trying to arm twist the NJC to have their way contrary to constitutional provisions?

If only one of such complaints is pending before the NJC, would the DSS have lost anything by waiting and abiding till its outcome? All these questions are anchored on whether the DSS have the constitutional powers they are exhibiting ab initio.

As many of such questions agitate the mind, one cannot but reflect on the very important office of the Attorney General, the only ministerial office created by the constitution, as the go-between. By my understanding, he should have a deep understanding of the workings and constraints of the Judiciary, which includes the NJC, as well as the Executive, and all the other arm of government. One of such constraints is that NJC members are not full time functionaries. They rather do the NJC work in addition to their other constitutional duties. In times like this, he should rise to the occasion. He should remember that while he owes a duty today to his employers, he owes a life long duty under the Legal Practitioners Act to the Courts, and all that they represent . That is because all his privileges flow from there.

Okeke is a Lagos based Attorney at Law.