Kudos to the judiciary in asserting its heavily assaulted independence - By Mike Ozekhome, SAN OFR
On December 11,2017,the Court of Appeal, Lagos division, in the lead judgment delivered by Justice Adejumo Obaseki, quashed the 14 count charge against Justice Hyeladzira Nganjiwa before the Lagos State High Court and ruled that the EFCC does not have the powers to investigate or prosecute serving judicial officers except where they had been first dismissed by the National Judicial Council (NJC).
For the records, it is the NJC that has disciplinary control over judges as provided for in Section 158 and paragraphs 21(b) and (d) of the third Schedule to the1999 Constitution, as altered. Some commentators have either disagreed with, or supported this decision. I support it. I will give my reasons anon. As held by the intermediate court, there is such a principle of law known as the doctrine of separation of Powers (thank you, Baron de Montesquieu, for your 1748 treatise that has shaped governance and division of powers within government itself.
Thank you Adam Smith for the concept of division of labour). The doctrine of Separation of Powers is a complete bar to the Executive riding slipshod on judges (belonging to the judiciary),in spite of the clear provisions of section 158 of the 1999 Constitution as altered and paragraphs 21(b) and (d) of the third schedule to the said 1999 Constitution.
This doctrine has received constitutional imprimatur in Sections 4, 5 and 6 of the same 1999 Constitution. We must all unite to rescue the brazenly buffeted judiciary from the despotic jackboots of the Executive, which traduces judges with untrammelled impunity.
To do this, we need more of such creative judicial interventionist activism. Judges in Nigeria today are no longer safe, or free to deliver judgments without looking over their shoulders, for fear of rampaging Executive agencies that break down their houses in ungodly hours of the night, and terrorise and dehumanise them and their families. Judges now operate under a situation of fear, not wanting to deliver judgments against an intolerant Executive, even where the law is as clear as crystal.
They operate under morbid fear of blaring sirens of power and executive lawlessness, an Executive that treats judicial orders with disdain and utmost contempt. Remember the Dasukis and Elzakzakys of this world? Numerous courts, including the sub regional ECOWAS Court, have since, ordered their immediate release with payment of damages for unlawful detention, but the Executive has flagrantly refused to obey the said orders. This is an obvious invitation to chaos and anarchy.
Any attempt by the EFCC rely on its enabling law, the EFCC (Establishment) Act, 2004, a far inferior law to the grundnorm, to undermine the clear provisions of the Constitution, is liable to be struck down, by virtue of Section 1(3) thereof. Lord Denning, MR, in Comb v Comb, once famously declared in the following words, or words to the like effect: "What is the argument on the other side? Only this. That no case appears in which it has been done before.
That argument does not in the least appeal to me. If we never do anything because it has not been done before, the society will move on and the law will stand still, and that will be bad for both." It was with this rare insightful activist orientation that he ploughed new fields and opened up new legal vistas that resulted into imperishable creations such as the doctrines in the "High Trees" case, Mareva Orders and Anton Pillar Orders.
I totally support the Court of Appeal in this LANDMARK judgment that has the effect of clipping the tyrannical claws of the EFCC and its sister agencies in always viewing the judiciary as an annex of the Aso Villa. I salute the rare courage, daring bravado and jurisprudential correctness of this historic and epochal judgment.
On matters concerning alleged corruption by judges in the ordinary course of their judicial functions (not heinous crimes committed on a frolic of their own outside the call of their official duties), let such corrupt judges be smoked out by the NJC, heard out, given a right of defence, and be adequately dealt with in accordance with laid down punishment through cautioning, reprimand, suspension, forced retirement, or outright dismissal, as the case may be. When the judex is thus stripped of his stained judicial robes, the anti-graft agencies can immediately move in.
After all, time never runs against trial of criminal offences. It is most unfair, nay, reprehensible and unconscionable, to continually harass and intimidate judges and keep judges, who are already under close NJC scrutiny, a second tier form of "double jeopardy", in the nature of yet another close microscopic monitoring by an overbearing, unaccountable, extremely corrupt omnipresent "big brother" Executive. Paradoxically, this is the same Executive that has refused to remove the log from its eye before seeking out the speck in the judiciary's eye.
Are there some corrupt judges that work hand-in-gloves with some despicable collaborating lawyers of odious infamy?
Yes! By all means, ferret and winnow out and deal with these few Judas Iscariots. But, for God's sake, do this in accordance with due process and laid down constitutional and statutory provisions. Let the aggrieved party appeal the judgment.
That is the civilised thing to do, not unleashing further threats, abuses, curses and expletives on the already beleaguered judiciary as an institution. I am ready, able and willing to defend, pro bono, this ground breaking judgment that would help the cause of justice, lubricate the tired wheels of the rule of law, reshape our legal jurisprudence and remove the judiciary from the searing clutches and apron strings of the other two arms of government, especially the Executive.
This will give the judiciary true autonomy and independence.
NOW THIS
THE SORE AND SOUR STORY OF SARS
SARS, acronym of Special Anti-Robbery Squad, has, for too long, been a sore and sour point in our security apparatus system. Following sustained and collective outcry against acts of impunity by operatives of the Special Anti-Robbery Squad (SARS), the presidency and the Police top hierarchy have finally reacted to calls by Nigerians in the social media for scrapping of SARS. Among the allegations against SARS operatives were complaints of wanton and illegal arrests, acts of extrajudicial killings, physical assaults, intimidation, accusations of fraud and forcefully dispossessing people of their money and property.
The IGP had urged aggrieved members of the public who have any complaints in the past or present of any violation of their rights by any SARS personnel anywhere in the country, to report such incidents through certain authorised channels.
Quite frankly, with my background as a Human Rights Activist who deprecates human rights violations under any guise, I commend the IGP for this salutary step which will ultimately reduce the level of human rights abuses in the country if properly reorganised as stated by the authorities concerned. However, some of these outrageous and devastating acts of terror that have been and are being meted out to the Nigerians by the rampaging operatives of SARS are normally instigated by fellow Nigerians against one another.
For instance, there are cases involving recovery of simple debts which have nothing to do with crime being reported to SARS by another more powerful and highly connected Nigerian for urgent acidic and devastating action. Yet, SARS, ever ready to do the money bags' bidding deservedly end up being the fall guy.
If we did not have a justice system that does not appear to easily recognise the rights of ordinary peasant Nigerians and remedy their violations with promptitude, the urgent and inescapable need for restructuring SARS might not have arisen at all. Though the wheels of justice grind slowly, Justice, a destination is always assured.
AND THIS
RELEASE OF 500 PRISONERS FROM KANO PRISON: WAS THIS NECESSARY?
Recently, the media was awash with the presidential pardon and release of 500 in mates of the Kurmawa Central Prisons in Kano State.
This act of prerogative, the PMB government claimed, was part of Federal Government's efforts to decongest Nigerian prisons. Ordinarily, this should not have caused the ruckus and brouhaha the incident generated. It's because this government has so fed Nigerians with so much poisonous diet of lies (and lies have expiration date), that every step and initiative of the government is viewed with utmost suspicion.
Why not? When did presidents start releasing prisoners, a simple administrative extra-judicial jaildelivery function usually carried out by governors and Chief judges of states.
Nigerians want to know why this apparent nichodemus act was not extended to prison inmates in Ebonyi and Anambra states when the same president visited those states?
Why the apparent discrimination, favoritism and preferential treatment to indigenes of his Northern zone. Some others wonder why the president should unleash on the society, a large number of criminal elements when he has not kept any of his promises to care for the teeming youth who are unemployed, leading to mass exodus to Libya and other countries, where they are recruited into modern day slavery in the most bestial and dehumanising manner, barbecued and ultimately killed in the most horrific manner. What of spirally crime rate? Is this a ploy to build an army of hardened criminals towards 2019 elections, some other Nigerians wonder aloud. We are all watching
VERY KEENLY.
THOUGHT FOR THE WEEK
"The rule of law is the basis for any democracy. And without the rule of law in democracy, you have chaos."(Meles Zenawi).
LAST LINE
Hope Nigerians are reading, digesting and awaiting the next explosive discourse of Sunday Sermon on the Mount of the Nigerian Project by Chief Mike Ozekhome, SAN, OFR, FCIArb, LL.D?
• Follow me on twitter @ MikeozekhomeSAN
Source: https://newtelegraphonline.com/2017/12/kudos-judiciary-asserting-heavily-assaulted-independence/
