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Lawyers seek Supreme Court’s word over appeal verdict on judicial officers 


Lagos State Division of Court of Appeal in its last week judgment gave the exclusive responsibility of disciplining erring judges to the National Judicial Council (NJC). NJC is an administrative body established to oversee the activities of judicial officers so as to protect the Judiciary from the whims and caprices of the executive arm of government.
 
The controversial judgment succinctly stated that the Economic and Financial Crimes Commission (EFCC) lacked the statutory powers to investigate or prosecute serving judicial officers.Going by the judgment, the restriction was not limited to the EFCC but included other anti-graft and security agencies, which may want to arrest and prosecute judicial officials for allegation of misconduct in the course of performing their judicial duties.
 
According to Justice Obaseki Adejumo, who delivered the lead judgment on behalf of the Court of Appeal, serving judicial officers can only be prosecuted for offenses such as murder, stealing, and if such offences were committed outside the discharge of their official duties.
 
“But once the offence was allegedly committed in the discharge of their duties, they must first be tried by NJC, and dismissed or retired before the EFCC can investigate or prosecute them”, the judge held.While some Nigerians, including lawyers have reacted sharply against the judgment, describing it as ridiculous, others felt it has brought to rest, incessant cases of harassment, arrest and media trial of judges by security and anti-graft agencies over alleged corruption.
 
An Abuja-based lawyer, Mr. Victor Oziegbe, for instance, faulted the judgment and suggested that the Supreme Court review it. Although he admitted that NJC is saddled with the responsibility of disciplining erring judges, he however believed that any judge default while in service should also be tried in court for his actions following investigations.
 
The lawyer’s position was that as a matter of precedent, NJC should conduct preliminary investigations into any allegation brought against judicial officers but, if found guilty, such judge should be handed over to anti-graft agencies for trial, since NJC does not have the mandate for prosecuting judges. He said: “In my opinion, I believe that judges should be prosecuted by EFCC in criminal matters. A criminal offence is a criminal offence and there should be no separation in it. If a judge commits a criminal offence, he should be tried.”
   
Mr. Oziegbe decried the degree of apathy and complacency with which NJC has handled the issue of corruption against serving judges and wonder if anti-graft agencies would have to wait indefinitely for NJC to act appropriately. He noted that though judges are expected to enjoy some level of immunity, if some of them should defile their revered office by accepting gratification, it should equally not be considered out of place for EFCC to prosecute them even while in office.
 
“Is accepting of gratification part of their duties? If it is outside their duty to collect bribe, then, security operatives should also go out of their duties to prosecute them,” he said.While condemning the last year’s raid on homes of some judges by security operatives, Oziegbe maintained that subsequent upon NJC’s recommendation, an erring judge should be tried in the law court.    
   
But a Senior Advocate of Nigeria, Sebastine Hon, held that it is only the court that would resolve the issue, irrespective of public perception. Citing Section 287(2) of the 1999 Constitution, which subjects everyone to abide by the decision, Hon however expect the Supreme Court to review the judgment.He said: “At the moment, what the Court of Appeal has said is the law, notwithstanding what anybody would say. 
 
“Section 287(2) of the 1999 Constitution as amended requires all persons and authorities, including subordinate courts, to abide by this decision.“Having said so however, I think a decision by the Supreme Court on this vexed issue is most imperative, if not because it is recondite, but also because of the mixed grill in terms of the public perception of the judgment.”
 
In his opinion, a constitutional lawyer and human rights activist, Kayode Ajulo agreed totally with the judgment. According to him, it goes a long way in emphasizing the independence of judiciary.Beyond that, he stated that though some people may not accept, judicial officers enjoy some level of immunity.He said: “I agree with that judgment. Unfortunately in Nigeria, we judge with sentiments. 
   
“I am privileged to have read side comments about the judgment and most of those people commenting have not even seen the sheet of paper the judgment was written. I agree with the judgment, though it is not just the judgment of Justice Obaseki. He only read the lead judgment. It was the judgment of the Appeal Court. 
 
“One thing we should know about the judiciary is that it is what you bring before the court that it will look at.“Today, people are saying that the judgment was trying to insulate members of the judiciary from scrutiny, it far from it. This judgment is so clear.”  
   
According to him, what the court did was to address the case of the constitutional power of the judiciary. At the end of the day, he stated, the court took into cognizance the three arms of government – the executive, judiciary and the legislature.“And again, the judge dealt on the independence of the arms of government and although Nigerians might not believe it, judicial officers have immunity. It is not absolute but they have some immunity in certain circumstances. In case of corruption allegation, NJC, which has the power to discipline any judicial officer, must be allowed to do its job before any other body can come in.
 
“We know how it is with Army officers, in case of any act of indiscipline, the army will discipline the officer first. If this can happen within the army, why not the judiciary? 

“And when it comes to corruption in the judiciary, it is an issue of technicality that is to be determined only by the NJC, if after investigation and the officer is found guilty, then you can through it open to the EFCC.“The court is not saying that erring judicial officers cannot be investigated but the disciplinary body has to do its job. If the court has not come up with that judgment, if we have a case before a judge tomorrow, all I need is to send EFCC after him,” he declared. 
   
Also speaking, another practicing lawyer, Mr. Tony Mozie, believes that judges don’t have immunity and as such, should not be shielded from prosecution.“It gives a wrong notion about the judiciary. The NJC is not a court and as such, cannot prosecute.“I suggest that EFCC is allowed to carry out investigation on any accused judicial officer because crime is crime and should not be allowed to be swept under the carpet,” he stated. 
 
For Austin Emumejakpor, the judiciary in that judgment was trying to grant immunity to itself through the back door.As a result, he disagreed with the court, insisting that EFCC does not lack the power to prosecute judicial officers while in service.

In this article:
NJCObaseki Adejumo
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