Published On: Sun, Nov 6th, 2016

How ex-CJNs sold out independence of the judiciary to the executive, by Justice Ayo Salami

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  • ayo-salamiGives reasons why corruption festers in the judiciary

  • Says appointment of judges, composition of NJC must be reviewed

Justice Isa Ayo Salami (retd)! Remember him? He was the President of the Court of Appeal who during his tenure accused his boss, long-time friend of many decades and Chief Justice of Nigeria (CJN), Justice Ignatius Aloysius Katsina-Alu of attempted justice perversion in a dispute arising from the 2007 gubernatorial election which produced Alhaji Magatarkadar Aliyu Wamakko as Governor of Sokoto State.

Ayo Salami J had alleged that the then CJN invited him into his office at Supreme Court, requesting him to influence the panel of justices in the case to give judgment in favour of the sitting governor which he claimed he refused to do.

At the time, the Court of Appeal was the final court of law on gubernatorial election dispute. All appeals that strayed into the Supreme Court on gubernatorial election then were not taken on merit by the panels of Supreme Court on the account that section 246(3) gave the Court of Appeal the final say on dispute from such election. In summary, such cases were terminated in limine.

But in a manner that amounted to a judicial coup, the case of the governor of Sokoto State, Alhaji Magatarkadar Aliyu Wamakko came to the Supreme Court after the President of the Court of Appeal, Justice Salami had purportedly refused to agree to the request by the then CJN, Justice Katsina-Alu to influence judgment in favour of the sitting governor and the apex court which should be the guardian of the 1999 Constitution, the basic law of the land, breached without conscience, the provision of section 246(3) of the 1999 constitution to take the case and terminated the appeal before the Court of Appeal which was sought to be influenced on the account of abuse of court process.

Series of events followed the interface between the President of the Court of Appeal and the Chief Justice of Nigeria with the NJC setting up panels upon panels on the matter, entering funny verdicts. The incident eventually led to the forceful retirement of Justice Salami.

In a paper delivered at the 2016 annual lecture of the Nigerian National Merit Award, titled: ‘ Corruption Eradication and the Nigerian Ethical Revolution’ , Salami spoke about his controversial retirement from the Bench under Chief Justice Aloma Mariam Mukhtar, saying the incumbent CJN, Justice Mahmud Mohammed, played a role in the episode.

The former appellate court President also traced how some past Chief Justices of Nigeria traded away the independence of the judiciary to the executive,  why corruption festers in the Nigerian judiciary while stating that the rules make it easy for the Chief Justice of Nigeria (CJN) to manipulate the National Judicial Council (NJC) in disciplining judges accused of corruption.

Sit back to enjoy excerpts from Salami’s paper, very intriguing!

THE PROBLEM WITH THE JUDICIARY

The problem with the Nigerian judiciary is that some dishonourable people not cut out to be judges got into the system and, after that, made it to the highest level of their judicial careers. Another major factor the problem has festered is that many Nigerians do not want the truth to be told. Whoever dares to tell the truth is marked down for persecution. Members of the Bar often narrate horrific stories or tales of certain high-ranking judicial officers who act as couriers of bribe, but, they are never ready to come out with details.

Such a person is engaged at a fee to reach out to judges in order to influence decisions in certain sensitive cases. At times, the bribe they collect for and on behalf of such designated judges never come to their knowledge, not to talk of its being delivered to them. It is also alleged  that some  legal practitioners, in addition  to their legitimate fees, demand  fees from their clients purportedly to influence the judge or judges handling their cases. It is the activities of these wicked legal practitioners and retired judges who can be rightly described as interlopers that have given the Nigerian judiciary a negative image. There are, of course, honourable gentlemen in the judiciary who will not accept a farthing from anyone and who can stand up to anyone. Many of the justices and judges in Nigeria are hardworking, patriotic and honest and can compare favourably with judges and justices from any of the Commonwealth countries.

However, there are many lazy, ignorant and dishonest judges in the system. It is these bad eggs that have desecrated the temple of justice, and they need to be flushed out to enable sanity return to the system.

INJUNCTIONS OF THE HOLY BOOKS ON THE ROLE OF THE JUDICIARY

Before proceeding further, I propose to set out what the Books of the two prevalent religions in the country have to say on the attributes of a judge. I am doing this on the tacit understanding that all Nigerian judges or justices are either adherents of Islam or Christianity. There may be judges who belong to other religions, but I have not come across one. I tender my unreserved apology if my judgment is incorrect. The Holy Bible in the book of Deuteronomy Chapter 16, verses 18-­-20, says; “18   Judges and officers shalt thou make thee in all thy gates, which the Lord thy God giveth thee, throughout thy tribes: and they shall judge the people with just judgment. “19   Thou shalt not wrest judgment; thou shalt not respect persons, neither take a gift: for a gift doth blind the eyes of the wise and pervert the words of the righteous. “20    That  which  is  altogether  just  shalt  thou  follow,  that  thou  mayest live, and inherit the land which the Lord thy God giveth thee.” And in the Holy Quran in Surat Nisaa Chapter IV verse 135, it was revealed to the Holy Prophet (SAW) as follows: “O you who believe! Stand out firmly for justice, as witnesses to Allah, even though it be against yourselves, or your parents, or your kin, be he rich or poor, Allah is a Better Protector to both (than you). So follow not the lusts (of your hearts), lest you avoid justice; and if you distort your witness or refuse to give it, verily, Allah is Ever Well-­-Acquainted with what you do.” on appointment, viz; “to do justice to all manner of people without fear or favour, affection or ill will so help me God.” The two Holy Books, the Holy Bible and the Glorious Quran, demand from judicial officers to refrain from – a)   perverting the course of justice; b)   showing partiality; c)    accepting bribe; and d)   subverting the course of righteousness. The things judges are required to do and those they should avoid are very clear and unambiguous. The problem, however, lies in the will, the innate ability or the conviction or conscience to avoid those that are not permissible or forbidden and to do what is right.

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THE JUDICIARY NOT THE ONLY BODY TO BLAME

The issue of fighting corruption bedeviling our country cannot be solved by focusing on the judiciary alone. Corruption affects everything and everywhere in the country. There should, therefore, be a critical examination of all the facets of our national life, for instance, redefined or re-­-orientated in a manner that will abhor corruption

a.)   A system or culture which appreciates politicians who obtain their wealth improperly but disparages an erudite judge or scholar  a failure requires redemption.“

b.)   A system which makes our children prefer appointments in customs, immigration and police to the arduous task of being a lecturer in our tertiary institutions, a doctor in our general hospitals or a state counsel in the federal or state Ministries of Justice is a system that must be defenestrated.“

c.)   The mentality  that makes  members of  the legislature  to prefer appointments to certain committees of the assemblies or ministers to prefer appointments to certain ministries of government on account of the juiciness of such committees or ministries must be re-­-examined and discouraged.

For their consideration has never been on the ground of demonstrating the beauty of hard work or opportunity to serve the people they claim they are representing. Corruption is the product of a failed system – educational, social, political and economic and the earlier it is tackled from the roots rather than engaging in a game of responsibility shifting, the better it would be for all of us.

FOCUS ON THE JUDICIARY

It should not be assumed that the judiciary does not have a role to play; in fact, it cannot absolve itself from blame. Just as it is not open to a doctor to reject blame for incompetence or negligence on account that the patient was careless in infecting himself with the ailment for which he is being treated, so would a judicial officer not be exculpated if he failed to perform his duty according to law and practice.

THE NATIONAL JUDICIAL COUNCIL

The National Judicial Council (NJC)  is a shadow of its old-­-self; it seems to me that it no longer appreciates the reason or purpose for its creation. A very important part of its duties is to protect and insulate judges from the executive. This explains why there is no representative of any other arm of government in the constitution of the Council; even the Honourable Attorney General is not made a member of the body.

However, there was a time in the recent past when a member of the National Judicial Council doubled as the Chairman of Council of Legal Education, a parastatal under the supervision of the Honourable Attorney General. This clearly was an anomaly. Furthermore, at the time when my matter (which is well known to the public and which I have left in the hand of God for just judgment) was being considered at the National Judicial Council, the then Attorney General of the Federation was alleged  to have  boasted to a state governor, that he uses his telephones to direct the proceedings of the Council.

It is this body that Honourable Justice Uwais  recommended that  the  selection of  the  Chairman of  the  Independent National Electoral Commission should be entrusted to. My Lord and the members of the Electoral Reform Committee sincerely believed that the National Judicial Council he left behind remains what it was  – but it is clearly not. All the Chief Justices that served during the tenure of President Goodluck Jonathan believed that they were beholden unto him and were prepared to obey his command.

For instance, when I was invited by Honourable Justice Aloma Mariam Mukhtar, CJN, and Honourable Justice Mahmud Mohammed, JSC, who was then the next most senior justice of the Supreme Court, and now the incumbent CJN, to discuss the issue of whether I would be prepared to accept the decision of the National Judicial Council to stay for three months and then leave the service, the options were laid before me.

They were whether I was agreeable to come and spend three months and then proceed on retirement or the impasse would continue. I opted to return, spend three months and proceed on retirement.

They were apparently taken aback as they did not anticipate this response from me. My Lord, Mukhtar, was obviously uncomfortable with my choice and was visibly shaken. She asked if I took proper advice on the issue and I assured her that I did. She then stated that if she were me, she would seek further advice. She left the meeting and returned to her desk. I was given one week to think over it. She did not find time for me until about a fortnight or more later.

Meanwhile, she had embarked on the appointment of Honourable Justice Zainab Bulkachuwa as the acting President of the Court of Appeal. Indeed, she had already forwarded her recommendation to President Goodluck Jonathan, who had, in turn, forwarded it to the Honourable Attorney General for his comments.

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I feigned ignorance of the steps being taken which explained her conduct when we first met.

On arrival, she asked me if I had sought proper advice on the matter. I answered in the affirmative and requested that the letter be written in a manner that it does not create the impression that I was being forced out of office and assured her that I still stood by my earlier acceptance to abide by the Council’s decision to return to the office for three months and retire. She then retorted:  “They do not want you again, and the justices are no longer behind you”.

I do not know how she arrived at her conclusion that most of the justices were no longer in my support. But I was sufficiently of the presence of mind to ask her who were the “they” that did not want me, and she replied: the government.

I suggested to her to advise the government to take its case from the National Judicial Council to the floor of the Senate, which has the constitutional power to recommend my removal.

She, at that stage, kept quiet. It was then Honourable Justice Mahmud Mohammed (JSC as he then was) cut in to ask for my letter giving notice of retirement. I suggested to them to give me a letter recalling me, and I would, in turn, give them my notice of retirement terminating at the end of the three months proposed at their meeting which period both of them had allegedly agreed to frustrate to endear them to the executive arm of government.

They insisted that I should give them notice of my retirement without receiving a letter recalling me. It was then Mahmud Mohammed (JSC) told me that they (National Judicial Council I presume) are an agency of the government and would do what the government wanted. I told them that without a letter from the Council, they should forget about my issuing them with a notice of retirement.

Knowledge is power! If I were not aware of what was going on, I would, wittingly or unwittingly, believing that they were working in good faith, have given them a notice which they were possibly going to abuse. The game plan was probably that, on receiving my letter, they would tell me that the notice of retirement was accepted with period of notice waived, and I should proceed on retirement immediately to the satisfaction and pleasure of the President and utter neglect or dereliction of their constitutional function of protecting the judiciary from the executive.

This gives me a fresh remembrance of the tenure of Mohammed Lawal Uwais, CJN. He was described “as straight as a bullet, he can’t bend” by his predecessor, Honourable Justice Bello, CJN.

After the 2003 general elections, President Olusegun Obasanjo was apparently informed that some senators and members of the House of Representatives, elected from Anambra State, would not be loyal to him.

He replaced the three senators and 15 House of Representative members who contested and won the election and were presented with certificates of return with another set of senators and members of the House, who were not nominated at the party’s primary, not to talk of contesting and winning election.

He caused the Independent National Electoral Commission to issue his selected  senators and House of Representative members with certificates of return. The truly elected members successfully prosecuted their election petitions before election tribunals set up for the state. The tribunals rightly returned all the three senators and members of the House of Representatives.

The imposed members of the House of Representatives and senators appealed to the Court of Appeal. The court, while delivering its judgment in the first case to be heard regarding a senatorial seat, was chased out of the court hall on the allegation that some members of the panel had been bribed.

The President of the court was, therefore, compelled to constitute another panel to take the appeals in Enugu. The new panel, which I led, comprised of justices from other divisions of the court. On the first day of our sitting, members of the panel were served with copies of a petition alleging corruption and undue influence.

I was served the previous day because I arrived on Sunday and was in the court to read the files on Monday. President Obasanjo minuted on copies of the petitions to the then Chief Justice of Nigeria, Uwais, stating that he was in Enugu over the weekend and heard about the rumour of offering bribe to us. He then directed Honourable Justice Uwais and the Attorney General to investigate the matter.

Honourable Justice Uwais turned down his request and wrote the President that the allegation against the justices could only be investigated by the National Judicial Council under the Constitution and not by a committee of Chief Justice of Nigeria and the Honourable Attorney General of the Federation as constituted by President Obasanjo.

Our present crops of Chief Justices of Nigeria would have fallen head over heels in obliging the President! The petitions were duly endorsed for our respective comments. The petitions and our answers were sent to a committee of the National Judicial Council, which, after hearing both sides, exonerated all of us, including the then President of the Court of Appeal, Honourable Justice Umaru Faruk Abdullahi.

President  Obasanjo wrote to congratulate all of us, except Umaru Abdullahi, whose only role was constituting the panel, although he was also accused of taking bribe.

The reason he was singled out for non-­-commendation by the then Commander-­-in-­-Chief was best known to the two of them, particularly Chief Obasanjo.

What I am driving at here is that Honourable Justices Dahiru Musdapher and Aloma Mukhtar did not resist the Presidency from undermining the independence of the judiciary.

They allowed the erosion of the separation of powers. Even after I was declared innocent, they failed to muster the courage to recall me.

Rather, the two of them, jointly and severally, fiddled while the time for my retirement was ticking; notwithstanding Honourable Justice Uwais’ statement to the effect that the National Judicial Council and not the President was vested with the authority to recall me.

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The only time the Presidency has a role to play in the discipline of a judicial officer is when he is found guilty of misconduct, and he is to be removed. Paragraph 21 (b) of the Third Schedule Part I of the Nigerian Constitution is very clear and provides as follows in the case of federal judicial officers: “ The National Judicial Council shall have power to – (b) recommend to the President the removal from office of the judicial officers in sub-­-paragraph (a) of this paragraph, and to exercise disciplinary control over such officers;”

The Council, having decided to rescind its earlier decision for removal, does not require the support or consent of the President to recall me. It is a power solely exercisable by the Council itself.

Through an act of omission or commission, it refused or failed to exercise the clear and unambiguous provision of the Constitution at the instigation of the executive and thereby sent wrong signals to the judiciary.

If the President of the Court of Appeal could be dealt a raw deal, it behoves other justices all over the Federation to behave properly!!!

Many judicial officers, who had hitherto rebuffed pressure, were thus intimidated; hence the funny judgments subsequently coming out of courts. I have used my personal experience as a case study to demonstrate what the National Judicial Council has become.

RECOMMENDATIONS

  • APPOINTMENT OF JUDGES

The fight against corruption in the judiciary should commence from the appointment of judges or justices to the various courts across the country. The sifting should start with the quality of university degree and the law school grade. In this age of Joint Admissions and Matriculation Board, which allows a student with five credits at two sittings to gain admission into the university, prospective candidates for appointment to the Bench, without five credits at a sitting, should not be considered. So also must aspiring judges with a university degree lower than a second class (lower division) not be considered, and all those who repeated their examinations at the law school should not be deemed suitable for appointment to the Bench.

In the United States of America, to qualify as a legal assistant to a justice, one must have obtained a first class in his law degree. It should equally be further noted that in that country, law is pursued as a second and not the first degree. Closely knit to this issue of qualification is the justices appointed to the Supreme Court and the Court of Appeal on the account of their specialty in Sharia or Customary Law as prescribed by the Constitution.

No sooner they get to the higher courts than they abandon their areas of specialty such as Sharia and Customary Law, which qualified them to get to the higher court, to the detriment of the primary purpose of their appointment.

These justices secure an appointment on the pretext that their specialisations are highly in demand in the superior court, and this allows them to access the Court of Appeal or Supreme Court earlier than their contemporaries who may be better than them but not endowed, versatile or lack special training in either Customary or Islamic Law.

I mean that if it were not for their special training in Sharia or Customary law, they could not have been appointed to any of these courts at the time of their appointment over and above their peers.

The consequence of their conduct is that Sharia cases are piling up contrary to the clear intention of the Constitution, which was to make these judges available to handle them. There is a particular instance of a justice who, when he came to the Court of Appeal, had only served in the registry of a Sharia Court of Appeal before being appointed a judge of that Sharia Court for barely a year when he was catapulted to the Court of Appeal.

Indeed, when he was appointed to the Court of Appeal, he had not acquired 12–year post-­-call experience to be appointed to the Court of Appeal. He had to wait for six months to make the requisite post-­-call experience of 12 years before he could be sworn in.

It is, therefore, abundantly clear that this gentleman had neither experience of law practice in the Ministry of Justice as a legal officer nor as a private legal practitioner. He never filed statements of claim and defence and is unlikely to know their implication and, throughout the period of his post-­-call working experience, he never handled common law cases even as a registry staff in the Sharia Court of Appeal.

To now saddle him with the responsibility of determining fine constitutional and common law cases, he would be like a fish out of water. Indeed, he had no requisite qualification required to be appointed as a  judge of the High Court as set out later in this paper.

On the experience required of persons aspiring to be appointed to the High Courts, the National Judicial Council, in its Extant Revised NJC Guidelines & Procedural Rules for The Appointment of Judicial Officers of All Superior Courts of Record in Nigeria, states inter alia in rule 4 (4) (1) (b) – (e) as follows – “(b) Active successful practice at the Bar, including satisfactory presentation of cases in Court as a Legal Practitioner either in private practice or as a Legal Officer in any Public Service;“(c) Satisfactory and consistent display of sound and mature judgment“ in the office as a Chief Registrar or Chief Magistrate; (d) Credible record of teaching law, legal research in a reputable University and a publication of legal works, and in addition to any or all of the above; (e) In the case of appointment of a candidate to the office of Khadi of a Sharia Court of Appeal, knowledge of Arabic language and grammar.”

 

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