Nigeria is at a cross roads in our march to nationhood. We are faced with critical questions whose resolution will determine our ability to take our place in the comity of civilised nations. These questions focus more on the software of democracy especially about the rule of law and its due process. The posers include whether we are ready to abide by the dictates of constitutionalism, obey the provisions of our various laws, and insist on separation of powers and the observance of all the due process of law.
The rule of law is fundamental to economic growth, job creation, environmental protection and mitigation of climate change, reducing corruption and general democratic consolidation. For a nation in recession, both the citizens and investors need the assurance of a rule-based approach to economic recovery, devoid of arbitrariness and the rule of whims and caprices of one person or a group of persons, no matter how highly placed they are. The separation of powers, though not a water tight separation, is an inseparable part of the rule of law. The ability of the legislature, judiciary and executive to do their jobs without undue interference reinforces the faith of the citizen in the democratic process.
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The recent invasion of the homes of some seven judicial officers in the wee hours of the day by the Department of State Services presents a challenge to all right-thinking citizens. Most of the reactions to the raid seem to be based on mob and herd thinking, a knee jerk reaction to the challenges facing the judiciary. Yes, some judges have not been doing their job well, so some Nigerians think they should get a dose of what the citizens feel. They should be punished. The arguments have ranged from the need to fight corruption and as such any means necessary could be deployed irrespective of what the law, decency and decorous conduct state. It seems we are entering the stage where everyone accused of corruption is presumed guilty and the onus falls on the person to prove his innocence. But this is far from what the fair hearing provisions of the 1999 constitution as amended state.
Recent arguments have centred on whether the judges who have been subject of suspicion should vacate their office. The contention is that being exalted members of the judiciary who sit on the Bench, in judgment over others, it will be improper and unthinkable for them to be sitting whilst facing criminal trial for alleged corruption or any other offence they may be accused of. Such continued sitting will denigrate the exalted office of the judge and reduce the judiciary’s rating in the sight of right-thinking men and women. On the face of it, this contention sounds reasonable and should be the norm.
However, the procedure for disciplining judges is for petitions to be filed with the National Judicial Council which investigates the petition and comes to a conclusion based on the evidence presented to it. The NJC has the powers to make recommendations for dismissal, retirement and other measures to the head of the executive arm. According to information released by the NJC which has not been controverted by the DSS, for some of the judges that were the subject of the raid, there were no petitions against them at the NJC; meaning that the allegations against them have neither been brought nor considered by the NJC. The NJC further states that some of the judges had pending petitions which had not been considered whilst others had petitions which had been considered and dismissed. In essence, the procedure for the constitutional disciplinary mechanism has not been activated or fully activated. The other procedure for removal of judges through the legislature urging the President to remove the judicial officer for infirmity of mind or body or for gross misconduct has also not been followed.
For the army and police, in matters of this nature, alleged offenders first face court martials and orderly room trials and are either found guilty or exonerated before any further action is taken by the civil authorities. But in the case of the judges, the equivalent mechanisms have not been activated. To refuse to follow the specific and constitutionally stipulated procedures for disciplining judicial officers and decide to take the general course of criminal prosecution whilst expecting the NJC to place the judges on suspension is a clear subversion of the due process of law. How is the NJC that has been stopped from performing its duty be expected to accede to the request of its traducers to suspend the judges? It will be recalled that the DSS alleges that the NJC has been derelict in its duties as the reason for their action. To follow the executive position will mean that the easiest way to deprive a judicial officer of his position will be for the executive to make an allegation, no matter how unfounded it may be and thereafter, the judge will be forced out of office.
The position that the struggle against corruption cannot be undertaken without subverting the due process of law is fallacious. And to cause an unnecessary dilemma that either the judges leave without due process or the judiciary will be ridiculed when the judges are charged to court is an avoidable position. It is something being foisted on the Nigerian public by the DSS. For Nigerians who are pointing to the scandals as alleged by the DSS as evidence or judgment of guilt, they miss the reality of our jurisprudence. An accused person is deemed innocent until found guilty and until we amend the constitution, this is still the law. Imagine the scenario; judges are tried and found not guilty by the courts after they have been suspended; how do you repair the reputation that has been damaged? It seems no one is interested in investigating the allegations contained in the response of the judges. The investigative authorities seem to have taken a position already and may not be properly positioned to investigate the allegations of the judges. But the allegations are specific and against known public officials who have merely offered a general traverse to specific allegations. In law, a general traverse cannot be a rebuttal to specific allegations.
The way forward is to stop the short-circuiting of the due process of law. Allow the NJC to do its duties and thereafter, take appropriate actions based on their findings. At least, there are instances in the recent past when the NJC had dealt with judges who violated their judicial oath. The impression should not be created by the executive that it has an axe to grind with the judiciary. I hope Nigerians know that the trial of these judges, if it will hold, will be before brother and sister judges and not military tribunals. If that impression of a war against the judiciary is sustained, the chances of a resolution of this challenge in the best interest of Nigeria will be remote as every arm will try its best to show its strength once the opportunity to act arises.
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