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Judges in the dock

By Ray Ekpu
18 October 2016   |   3:21 am
The recent raid of the residence of several judges including Supreme Court justices is causing more than a stir for several reasons. One, the raids were done largely in the dead of night, about the time that armed marauders operate.
Attorney-General of the Federation, Abubakar Malami (SAN)

Attorney-General of the Federation, Abubakar Malami (SAN)

The recent raid of the residence of several judges including Supreme Court justices is causing more than a stir for several reasons. One, the raids were done largely in the dead of night, about the time that armed marauders operate. Two, they were said to be done largely without search warrants. Three, they were done by officials of the Department of State Security (DSS) not by the Police, EFCC or ICPC, institutions that have been traditionally handling corruption cases. Four, in some cases doors and gates were said to be broken down by officials armed to the teeth with dangerous weapons. Five, many people thought that dealing with corruption in the judiciary was the responsibility of the National Judicial Council (NJC). The NJC holds that view for it has condemned the arrests as an attempt to intimidate and cow the judiciary.

Let me state here as I have done several times in the past: we must all support the fight against corruption wherever it exists – executive, legislature, judiciary or the private sector. If we don’t, corruption will kill the country. But as a corollary to the anti-corruption fight, it must be done with a high sense of fairness and decency.

Without a particle of doubt there is corruption in the judiciary. In the heat of these arrests of judges a lawyer friend explained to me that there are three types of judges in Nigeria (a) Government Judges – that is those judges who are malleable and can grant cases in the government’s favour for a fee or for promotion or both. When the government has difficult cases it heads to those courts and is certain to get its wishes done. (b) Cash and carry judges – these are said to be judges that are well known to be on the take. They are said to have agents among the senior advocates who collect “egunje” for them from whatever source. They share the money with the senior advocates and sometimes it is alleged, these senior advocates write the judgements for them to read. (c) The Integrity Judges – these are judges adjudged by lawyers and litigants to be forthright and fair and who deal with the cases that come before them based basically on the facts and the law. They remain the hope of the common man and the bedrock a fair judicial system.

I have met one of the cash-and-carry judges in court before and the lawyers in court said that he has four senior advocates who collect cash for him from litigants. He could not hide his bias; you could cut it with a knife. He made six quick rulings in one day and I learnt he was trying to make a decision that will affect a case in another court. As he made each ruling, all of them against one side in the case he would tell the lawyer against whom his hostility was directed, “you can go on appeal.” Why would a judge be the one advising a lawyer to go on appeal? I asked the lawyers present. They told me that he knew he was wrong in his judgement but he had done what his payers wanted. One of the lawyers told me that a Senior Advocate had mentioned a decided case to this particular judge. He said he didn’t know. The Senior Advocate promised to send the reference to him. When a lawyer in the SAN’s chambers took the reference to the judge he refused to accept it except the SAN brought it by himself. This judge has made quite a few controversial verdicts since then. I am watching to see how this gale of arrests will affect the rotten fellow.

There are many judges of integrity and high repute in the country and the arrest of a few suspects among the judges should not lead the public into thinking that our judiciary is unworthy of the respect we give it. It is. Some of the judges arrested have claimed that they were targeted because of the judgements they delivered against some persons or institutions. My stand on such matters has always been to ignore the motives and deal with the facts of the matter. One of the judges, Adeniyi Ademola, claimed that he signed the confessional statement at gun point. If the security operatives forced the judge to sign the statement against his wish, then they have gone overboard. Such tactics must not be accepted.

However, many people who learnt of the huge sums of money, in dollars, euro and naira, allegedly recovered from the judges were alarmed. But the judges are still innocent until proved otherwise. So going at them hammer and tongs is a bad advertisement for our democracy. What is the point of invading the house of any suspect, judge or ordinary citizen, at 1 a.m., the sort of time that armed robbers operate? The Chibok girls were abducted at 9 p.m. by terrorists who wore army uniforms. If the law enforcement agents operate under the cover of darkness and wear identical uniforms as the robbers and terrorists how will anyone know the difference? This is crudity at its crudest. This is a way of doing a good job with bad methods. Even if the law allows you, you do not need to break down doors at 1 a.m. to arrest a suspect except perhaps dangerous criminals and gangsters who are armed. Hacking down people’s doors at midnight is not a leap of genius because you do not build a sane and civilised society that way.

A few years ago, we had tried to buy arms from the United States for the fight against Boko Haram. Even though America is positively positioned against terrorism anywhere in the world; it refused to sell arms to Nigeria because of alleged human rights infringements by the Nigerian Armed Forces in North Eastern Nigeria. The Americans invoked Leahy’s Law, a law named after its sponsor, Senator Patrick Leahy of Vermon. This is a human rights law that prohibits the U.S. Department of State and Department of Defence from providing military assistance to foreign military units that violate human rights with impunity. What this means is that the international community expects all civilised nations that run democratic governments to treat even indecent people decently.

Recently, the Court of the Economic Community of West African States (ECOWAS) slammed Nigeria on the case of Sambo Dasuki, the former National Security Adviser, who has been in detention without trial for many months. The three man panel led by Justice Friday Nwoke said it was wrong to arrest Dasuki without a search warrant. It also said that arresting him on November 4 last year after he was granted bail by a court of law amounts to “a mockery of democracy and the rule of law.” The court ordered that Dasuki should be freed and the Federal Government was fined N15 million. The government can ignore the judgement if it wants but it is binding on Nigeria. Article 15 (4) of the Revised Treaty of ECOWAS states that “Judgements of the Court of Justice shall be binding on the member states, the institutions of the community and on individuals and corporate bodies.” Nigeria is a signatory to the treaty.

The NJC is angry that its judges have been arrested whereas it is responsible for disciplining judges. However, it does appear that the NJC has not fully woken up to that responsibility. Judges do not have immunity from prosecution, only Presidents, Vice Presidents, Governors and their deputies have immunity while in office. Corruption, we must admit, has not left the bench or the bar untainted. Senior Advocates hired by law enforcement agencies to prosecute cases have punched holes in those cases so that they could fail. Some judges are said to, even, receive bribe from both sides of a case and then deliver Delphic judgements, judgements that are capable of being interpreted in more ways than one. Courts with equal jurisdiction give conflicting judgements in one case, thus causing avoidable confusion. Litigants therefore use their lawyers, especially the senior ones, to find courts that can show them mercy if they speak to them in the “right language.”

The 1999 Constitution thinks highly of the freedom of Nigerian citizens. That is why it prescribed that suspects could be detained for only 24 hours, may be 48 hours if arrested at a weekend, before being brought to court. So how does a court, using its enormous powers, permit the government to detain Nigerians in this democracy indefinitely. Godwin Kanu, the Biafran activist, has been detained for about a year without trial by the directive of a court. Is that a court of justice or a government court? In 1962, Obafemi Awolowo and some of his followers were charged with treasonable felony and convicted. Awo served his jail term and came out of a prison and became the number two man in Nigeria under Yakubu Gowon. If Mr. Kanu is accused of treasonable felony, the proper thing to do is to put him on trial rather than procuring an indefinite detention of him without trial. This is not the image of a democracy that I have in my mind. That is the image of a dictatorship. If Kanu is tried later it will be in obedience to a law called Lydford Law, punishment first and trial later.

Let it be stated here again that the fight against corruption in any shape or form is a fight that must be fought. It is good to do so considering the considerable damage that this scourge has done to our country. But the means must be right so that the end will be justified. If the ECOWAS court or any other court outside of our shores gives us another thumbs down, it will be a damning verdict on our democracy and our civilisation.