I must commend the vibrant and revolutionary approach adopted by his lordship as much as it gives impression of a judiciary repositioning to surmount challenges of fragrant violations of its rights as an independent arm of government.
I was particularly proud when his lordship observes at page 20 of the 35 page judgement as follows:
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I need to emphasise that the Constitution of this Country, being the grund norm, and the fundamental legal order of the state clearly recognizes and guarantees the doctrine of separation of powers and checks and balances…The doctrine of separation of powers and its administration must be carefully understood by all levels and organs/agencies of Government so as not to create anarchy.
However, the vexed issue, which is whether recourse to National Judicial Council (NJC) is a condition precedent to investigation of judicial officers by law enforcement agency for criminal acts committed in the course of their duties, needs to be properly addressed.
In addressing the issue, his lordship relied heavily on a number of subsidiary legislations including National Judicial Policy 2016, Judicial Discipline Regulation 2017 and Revised Code of Conduct for Judicial Officers which contain code of conduct for judicial officers and the case of Opene v. NJC (2011) LPELR-CA/A/324/07, to hold that the NJC has power to investigate misconducts which are also criminal acts in exercising disciplinary control over judges and that until it has done so, no criminal investigation outfit can take up assignment of investigation and prosecution in respect thereto.
His lordship stated further that it is in order to guarantee the independence of the judiciary the Constitution, under section 158(1), gives power to NJC to exercise disciplinary control over judges and as such recourse to NJC is a condition precedent to investigation of judicial officers and that any act done to the contrary by law enforcement agency is tantamount to denying the NJC its powers to discipline judges.
In Opene v. NJC, Galinje JCA said at pages 40 – 50 paras A – F
… The word misconduct used as a reason for removal of a Judicial Officer is known to those who framed the Constitution to be criminal offence and yet the responsibility to recommend to the president, the removal of such officer is given to the National Judicial Council.
If the Constitution intended that such misconduct must be subject to trial by court it would have said so…rather the Constitution gave the court power to try criminal offences also gave the NJC power to investigate allegation of misconduct against judicial officer and make recommendations for their removal.
It is my firm view that the procedure adopted by the NJC is sustainable…The appellant has constitutional power to investigate the criminal allegations made against the Appellant and to make a finding that the allegations are proved… (Emphasis mine).
Rule 10 of the Revised Code of Conduct for Judicial Officers of February 2016, prohibits the acceptance of gift, bequest, loan, favour, benefit, advantage, bribe etc. The Appellant in the case under review, a judge of the Federal High Court, was said to have committed acts of misconduct under the code and offences under the criminal law.
Firstly, it must be recognized and conceded that the NJC has the powers to exercise disciplinary control over judges for acts of misconduct to the exclusion of any other agency of government in line with the provision of the Constitution.
Section 158(1) provides:
In exercising its power to make appointments or exercise disciplinary control over person … the National Judicial Council shall not be subject to the direction or control of any other authority or person.
Paragraph 21(b) of the third schedule to the Constitution says:
The National Judicial Council shall have power to recommend to the President the removal from the office of the judicial officers specified in sub-paragraph (a) of this paragraph and to exercise disciplinary control over such officers…
Evidently, there is nothing in the foregoing constitutional provisions suggesting that recourse to NJC is a precondition to igniting the jurisdiction of the court by law enforcement agency in investigation and prosecution of a judicial officer for criminal acts as his lordship postulated.
But can it be said that the subsidiary legislations heavily referenced to work out the esoteric powers for the NJC in this case are so potent as to override the spirit of the Constitution which places the need to abolish all corrupt practices above the need to abolish abuse of power?
In section 15(5) of the Constitution, the need to abolish both evils is clearly stated but the need to abolish ”all” corrupt practices (which is evidently the “bigger evil” in Nigeria today) was mentioned first in the same subsection in realization of the fact that the fight against corruption is the surer way of halting any nation’s descent to a looming anarchy than the need for the operation of the principle of separation of powers.
In Hon. Muyiwa Inakoju v. Hon. Adeleke (2007)4 NWLR (pt. 1025)423, the court said:
The principle of separation of powers under the Constitution is meant to guarantee good governance and development …
There can be no development where the power of an agency set up to fight corruption is so dangerously inhibited.
Section 15(5) of The Constitution provides:
“The State shall abolish all corrupt practices and abuse of power.”
The draftsman was careful. The use of the word “all” was deliberate. The Constitution using the phrase “all corrupt practices,” was giving clear directive to those in government to ensure that the fight against corruption is carried out holistically in “all the branches of government and all sectors of the economy,” applying same law to all involved in line with the principle of equality before the law.
It was therefore in obedience to a constitutional directive in section 15(5) that the State set up the ICPC and the EFCC. Therefore the laws setting up the anti-corruption bodies in Nigeria are not ordinary legislations that can so lightly be pushed aside to give way to the operation of ordinary subsidiary legislations helping to regulate ethical behaviour of a group of people.
The power of the NJC in exercising disciplinary control over judicial officers on ethical issues is akin to that of a commission of inquiry. Like a commission of inquiry, the NJC is a fact finder who submits report to an appropriate authority.
The NJC is not a criminal investigation outfit who submits the outcome of its investigation to court of competent jurisdiction and as such the NJC is not part of the criminal justice system and cannot therefore carry out criminal investigation in the sense envisaged in Opene’s case and could not have been empowered by the Constitution to do so.
In Barigha-Amange v. Adumein (2016)13 NWLR (pt. 1530)349, the court said:
A judicial commission of inquiry (which is analogous to NJC) is not part of the criminal justice system…(Words in bracket mine).
It is the duty of the appropriate law enforcement outfit to take responsibility and set the criminal justice system in motion when a crime is committed. He cannot be tempted to dispense with that legal obligation. The court in Barigha-Amange’s case, said further:
…It is the State that has a mandatory duty to investigate a crime and place the culprit before the court …The obligation to set in motion the criminal justice system on the occurrence of a crime can neither be substituted by any other device nor dispensed with.
It is the statutory duty of the EFCC or the police to investigate and prosecute for criminal acts in their respective statutes. How they propose to go about it cannot be dictated to them by even the courts. It is a matter within their discretion. See IGP v. Ubah (2015)11 NWLR (pt. 1471)405; Onali v. Okenwa (2010)7 NWLR (pt. 1194)512; Fawehinmi v. IGP (2002) 7 NWLR (pt. 767)606; Agbi v. Ogbeh (2005) 8 NWLR (pt. 926) 40; AG, Anambra State v. Uba (2005) 15 NWLR (pt. 947)44; Hassan v. EFCC (2013) LPELR.
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Criminal investigation involves technical processes of reconstruction of the circumstances of an unlawful act with a view to filing charges. It involves arrest, search, at times bringing in experts to conduct forensic examination where necessary.
Investigators are trained for the job of criminal investigation. Even the executive arm will not carry out crime investigation except through its law enforcement department where there are trained personnel to carry out the job skillfully.
The judgement is a major setback in the global campaign for the need to professionalise criminal investigation process whereby not even all law enforcement personnel would be qualified to embark on the assignment of criminal investigation except those specially trained for such assignments.
At page 29 of the judgement under review, his lordship said:
The NJC is created by the Constitution to solely regulate the affairs of the appointed judicial officers without interference from any authority.
It is only and only when, the NJC has given verdict and handed over such judicial officer (removing his toga of judicial powers) to the prosecuting authority that he may then be investigated and prosecuted by the appropriate security agencies.
With due respect, this is an unusually fallacious procedure. What happens when an investigative outfit receives intelligence that “cash in hand” bribery involving a judicial officer is about to happen?
Sting operation, which is the most effective strategy under such circumstance, is ruled out by the operation of the judgement under examination. Proving bribery allegation against a judicial officer will then becomes an uphill task under such circumstance.
The foregoing situation will herald a regime where justice will no longer be available to the poor. The attendant disorder and anarchy will make nonsense of the benefit derivable from the smoothest operation of the principle of separation of power and independence of the judiciary which were so heavily canvassed as if the doctrine of separation of powers is an end in itself. See again Hon. Muyiwa Inakoju v. Hon. Adeleke (supra).
Moreover, the need to remove a judge toga of judicial power after NJC verdict before making him available for trial as postulated by his lordship, at page 29 of the judgement, is an unusual adversarial procedure. The toga ought to be removed after court’s verdict.
In conclusion, based on the foregoing, it is my firm view that the EFCC is not legally programmed to wait for the NJC to finish. What the EFCC is empowered to do by law is entirely different from what the NJC is empowered to do.
By the law setting it up, the EFCC is part of the criminal justice system while the NJC is not. If there is any overlap warranting one of the agencies to wait for the outcome of the activities of the other, then it is the NJC that must wait.
No country can experience sustainable development by continually or habitually putting the cart before the horse in the way and manner of doing things.
I am not unaware of the situation in the country that may have acted on the mind of the court in giving the judgement but like our people say, one does not construct a palm oil making factory because of one ripe palm tree. In my respectful view, his lordship misinterpreted the Constitution.
The EFCC has a legal obligation to set in motion the criminal justice system on the occurrence of a criminal act the law empowers it to investigate. I am therefore of the firm view that both criminal charge and disciplinary proceedings may go concurrently.
Basil Momodu Esq.
Legal Research and Law Publishing
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