Tuesday, June 25, 2013

The Nigerian Judiciary Stands Accused

Atobatele: The judiciary stands accused

WEDNESDAY, 26 JUNE 2013 00:00
Nigerian Guardian

OBVIOUSLY, the last has not been heard about the can of worms opened by retired Justice of the Federal High Court, Okechukwu Okeke on the judiciary. The revelation by the judge that he had 35,000 cases pending at his court at the time he retired is perhaps the least of the emerging controversy. That fact, if true, is grossly damaging to the image of the judiciary and the courts, both representing an institution touted to be the last hope of all citizens. If such pressure applies to one judge, it most probably extends to other judges, thus compounding problems of injustice and fairness. The more intriguing aspect of Justice Okeke’s revelation related to his lamentation that he was ‘a victim of injustice in the Nigerian judiciary’, by virtue of the ‘warning letter’ he received from the National Judicial council (NJC).

The Council, the apex body for the country’s judiciary is a creation of the 1999 Constitution as amended, and is vested with powers to exercise disciplinary control over judges and other judicial officers nationwide. Justice Okeke had accused the council of issuing him a warning unjustly over a petition against him and apparently without giving due consideration to his response. His observation pitted him directly against the NJC, which had considered it necessary to publicly issue a statement it titled ‘setting the records straight’, and in which the council counter accused the retired judge of allegedly misleading members of the public.

An offshoot of this episode has equally become messy for the judiciary’s image. And that is Okeke’s charge, while speaking at a valedictory held in his honour last month, that a serving justice of the Supreme Court allegedly tried to influence a case involving a convicted Managing Director of a bank. According to him, the Supreme Court Justice sent his daughter to him (Justice Okeke) with a directive that he should vacate the order granting Asset Management Corporation of Nigeria (AMCON) the takeover of a property of the bank, one of which the daughter and son-in-law to the Supreme Court Justice lived in. Justice Okeke claimed that the daughter again visited him in his chambers on March 8, 2012 with the same instructions from the judge. The retired judge, overall, accused the Supreme Court Justice of being behind his travails with the NJC.

If anything is clear from this trading of blame, it is that all is not well within the judiciary. And that the head of that institution, Justice Mukhtar, still has a lot to do, in fulfillment of her promise to stamp out corruption. Said Justice Mukhtar to the Senate Committee that screened her appointment at the time: “Corruption is in every system of our society and I can’t pretend that it is not in the judiciary. What I intend to do to curb this is to lead by example and hope that others will follow. As chairman of NJC, I will encourage internal cleansing based on petitions…”

The justice Okeke’s can of worms is a veritable excuse for the CJN not just to abide by her promise to lead by example, but to also go beyond hoping for others to follow. She needs to put in place strict measures to ensure that others follow. The first of this of course is to fully investigate and make public findings in all petitions made against judges. It is true that the country’s current democracy is permissible of many expressions, including petty and frivolous ones aimed, often, at scoring cheap political points. Yes, the CJN must sift these, but she must not throw away the substance with the flimsy. In its advertorial, the council admitted that newspapers’ publication of Justice Okeke’s speech (How I became a victim of judiciary’s injustice) “cast aspersions’ on the council in particular and the judiciary at large”. But according to it, the NJC received five petitions written against Justice Okeke while he was serving as a judge. After obtaining his responses to the allegations contained in the first three petitions, the NJC considered them at its meeting of April 24 and 25, 2013.

“In the course of deliberation, Council noted that Hon. Justice Okechukwu Okeke would be retiring from service on May 19, 2013. At the end of deliberation, Council noted the three petitions and the reactions by Hon. Justice O. Okeke and decided to warn him to desist from such acts that are prejudicial to the integrity of the judiciary and administration of justice. It is to be stressed that Hon. Justice Okeke’s responses to the remaining 4th and 5th separate petitions did not form part of the decision of the Council at its meeting which was held on April 24-25, 2013.”

The NJC went on to observe that the 5th petition against Justice Okeke relates to the AMCON case where the judge gave an exparte order in favour of AMCON. “By the provision of Rule 2(2) of the Code of Conduct for judicial officers of the Federal Republic of Nigeria, ‘a judicial officer must avoid the abuse of the power of issuing interim injunctions, ex-parte. A meticulous examination of the 5th petition and the response by Hon. Justice Okeke has shown that the exparte order granted by His Lordship in favour of AMCON established a case of misconduct contrary to Code of conduct for Judicial Officers of the Federal Republic of Nigeria. However, the said petition and reaction were not considered by Council because of time constraint. Council is therefore constrained to state that Hon. Justice Okechukwu Okeke misled members of the Nigerian public into believing that the National Judicial Council issued him a warning letter based on the exparte order he gave in the AMCON’s case: the fifth petition.” The council concluded that from the totality of the facts as stated, Justice Okeke’s speech was not correct, and it was “nothing but a figment of his imagination, as the warning letter issued to him by Council was not as a result of the exparte order he granted in respect of the AMCON’s case.”

There is a vacuum begging for filling in the NJC’s action to set the records straight. Majorly, why and how did it arrive at the conclusion that the AMCON’s case established a case of misconduct, contrary to the code of Conduct, against Justice Okeke; when it declared, in just the next breadth that “the said petition and reaction by Hon. Justice Okeke were not considered by council because of time constraint.” By announcing a verdict before consideration, the NJC has been unfair to Justice Okeke. The only avenue where a prima facie case can be said to be established against an accused person is in court; and then after the court has duly considered a relevant application and response against it by the parties. The NJC not being a court (never mind that its head is actually the Chief Justice), cannot in good conscience give a publicized ‘ruling’ as it did in its advertorial. Nevertheless, Justice Okeke will be free to counter the NJC, except that by their professional culture, judges, whether in or out of service, do not normally join issues publicly.

That principle perhaps account for the seeming silence of the Supreme Court justice to whom Justice Okeke pointed an accusing finger for allegedly attempting to influence a case. However, sources from the grapevine indicated that the Supreme Court Justice has stated that his daughter was not the cause of Justice Okeke’s travail. He reiterated the NJC’s finding that Justice Okeke was not just economical with the truth; he also ‘misled’ the world by his representations. In particular, the Supreme court Justice said he did not ask his daughter to see Justice Okeke; and that his daughter acted on her own volition by seeing him; and even then, in the company of other residents, their lawyer and also the lawyer to one of the parties.

A judge’s character should not be smeared on mere suspicion or on allegations that are less then substantial. But the brickbats being thrown raise public curiosity, and call for a thorough inquiry. As it is, the NJC has been drawn into the arena, not as an umpire, but an interested party. Tongues definitely will wag, and the CJN is tasked as to how to handle it. She cannot be seen to be protecting the personal interest of her fellow judge at the apex bench; nor can she afford to conduct a secret investigation that will further raise more eyebrows. She needs tact, courage and wisdom to handle this can, and she cannot pretend that all is well and therefore keep quiet, hoping that Nigerians will soon forget.

The entire episode is an unhealthy development for the judiciary, which has been in the limelight for the wrong reasons of corruption, slow pace of justice delivery, a dearth of basic infrastructure and tools; and a need for a cleansing. Critically, the development portends some effects on the court system, and ultimately, the judiciary institution suffers, along with the country’s credibility to the outside world. This is one case that should not be allowed to adorn the toga of the justices Salami – Katsina-Alu crisis. Again, the ball is in the court of Chief Justice Mariam Aloma Mukhtar.

• Atobatele, a consultant in legal affairs, wrote from Abuja.

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