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Friday, 12 January 2018

Judges’ purported immunity and separation of powers

Judges’ purported immunity and separation of powers

UNAMBIGUOUSLY, Section 98 of the Criminal Code, CAP C38, Laws of the Federation of Nigeria, prohibits ‘official corruption’ by public officials, including inviting or receiving bribes, property or benefits for a favour in the discharge of official duties, and pegged the punishment to seven years imprisonment if found guilty of the act.

The classification clearly includes judicial officers and the condition precedent is commission or omission of deeds that are listed therein.

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Without a doubt, the theory of separation of powers is domiciled in the 1999 Constitution of the Federal Republic of Nigeria, providing for each of the three arms of government, to wit — executive, legislature and judiciary — some degrees of protection from interferences.

The concept which is traceable to the ancient Greek philosopher, Aristotle, was evident in the Second Treatise of Civil Government, a 1690 political script by John Locke, an Englishman. However, a French jurist, Baron de Montesquieu, through The Spirit of the Laws (1748) took it to the next level and thus, universally brand-named it.

Essentially, the objective is to entrench checks and balances in governance against absolutism.

Incidentally, the Court of Appeal in Hon. Justice Ngajiwa v FRN par Justice Obaseki Adejumo, JCA who delivered the lead judgment stated that by the doctrine of separation of powers in the constitution, the Economic and Financial Crimes Commission (EFCC) lacks powers to investigate or prosecute serving judicial officers except such judicial officers have first been dismissed or retired by the National Judicial Council (NJC), and consequently dismissed the appeal.

However, the court failed to put into consideration a scenario where a particular act by a judicial officer amounts to both a criminal offence and gross misconduct which implies that whilst the NJC battles it as a gross misconduct, the Police or EFCC freely investigates and prosecutes on the criminal aspects.

Emphatically, a deed could simultaneously amount to misconduct and crime, and distinguishably, the former only breaches professional ethics unlike crimes that are offences against the state.

In all fairness, the judgment is isolationistic for the judiciary. It implies that the court has diplomatically designed additional immunity clauses for the judiciary, on a par with the president, vice president, governors and deputies.

The legislatures, too, have severally moved motions to accord same to their principal officers, but still pirouetting. It, therefore, leaves the helpless masses as the only losers without any immunity as any misconduct pitilessly takes them to the maximum prison.

Imperatively, all the advocates of separation of powers have one object in common: that concentration of powers in a single authority is tantamount to political blunder and will inevitably open the doors for tyranny and oppression, synchronizing that absolute powers corrupt absolutely, according to Lord Acton, a British historian of the late eighteenth and early twentieth centuries.

Thus, the objective is stringently to restrain power in government circles and not for protectionist tendencies. Arising from the philosophy, for example, in the 1999 Constitution, the executive is involved in the appointment and removal of judges in Sections 292 and 231.

Similarly, the president assents to bills passed by the National Assembly in Section 58(3) whilst the legislature, on the other hand confirms appointments made by the president pursuant to Section 147. T

hen, in Sections 80 and 81, the legislature ultimately performs the duties of the custodian of the Federation Account as its authorisation is sacrosanct.

Interestingly, whilst the appellate court theoretically emphasized the doctrine, it ridiculed it in reality as its verdict contradicted the ultimate goals.

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The verdict pragmatically footnotes that judicial officers are sacred cows, and will only be charged if and when it pleases them. The court also went astray, forgetting that by the judgment, the NJC which is an arm of the judiciary has effusively usurped the powers of the executive to investigate crimes.

It preemptively boils down to the fact that allegations against judicial officers may no longer see the light irrespective of the weight of evidences as the power of investigation is purportedly vested in their colleagues unlike other countries where serving judges had been severally arrested by security agencies and made to face the law as other citizens.

By the existing constitutional arrangement, judicial officers are not immune to criminal prosecutions except while on official duties.

A judicial officer who commits criminal offences can be arrested outside the court premises as official duties are strictly limited to juristic obligations which bribery, treasury-looting, murder and other vices are not inclusive.

At the moment, immunity from criminal prosecution is provided for in Section 308 CFRN and covers only the government officials listed therein.

A salient question is: could a judge who pulled out a rifle and shot a person be left for NJC to investigate prior to prosecution by the Police?

Even whilst the immunity as stated above subsists, Section 143 supra unequivocally enabled the legislature which is a different arm, pursuant to checks and balances, to investigate the executive officials covered by the clause and if culpable, impeach them in lieu of prosecution unlike the present strange judicial missile that judicial officers are untouchable except by colleagues in the profession.

In a nutshell, the verdict is a mockery on the Montesquieu theory and must not get the green light at the apex court.

Umegboro writes from Lagos.

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