Judicial Assault On Checks And Balances

The White Paper

The Nigerian Constitution incorporates a system of “separation of powers” with constitutional imprimatur in sections 4, 5 and 6 for the three branches of government; enforced through a series of “checks and balances”. The system of checks and balances is intended to make sure no branch of government is allowed to exceed its bounds, to guard against fraud, etc. These branches are: Legislature, Executive and Judiciary.

Hon. Justice Hyeladzira Ajiya Nganjiwa

Checks and balances act as sentry over separation of powers. Practically, the authority to take an action rests with one branch, while the responsibility to verify the legality of that action rests with another. In Nigeria, it is usually the executive that assaults other branches with suspension of the Constitution, dissolution of the legislature after a coup d’état and executive lawlessness; and interference and intimidation of the judiciary respectively in militocracy and democracy. Ironically, the judiciary is now the new assaulter.

That the National Judicial Council (NJC) is vested with disciplinary control over judges as provided in section 158 and paragraphs 21 (b) and (d) of the third Schedule to the 1999 Constitution (as amended) is not in dispute. The Constitution established the NJC in section 153 (i) and under the “Independence of certain bodies” it states in section 158 (1) that: “. . .In exercising its power. . .to exercise disciplinary control over persons, the. . .National Judicial Council. . .shall not be subject to the direction or control of any other authority or person”.

While striking out a 14-count fraud charge against Hon. Justice Hyeladzira Ajiya Nganjiwa by EFCC, the Court of Appeal, Lagos Division, on Tuesday December 12, 2017, declared that EFCC does not have powers to investigate or prosecute serving judicial officers, except where such officers have been subjected to the disciplinary jurisdiction and/or dismissal by NJC. Though a new wig, I assimilated the case: Justice Hyeldzira Ajiya Ngangiwa v Federal Republic of Nigeria (Appeal No CA/L/969c/2017) and did not rely on any imaginative legal fortitude to decipher that the judgment is inimical to common law.

The court gave the ruling following an appeal filed by Robert Clarke SAN on behalf of Justice Hyeladzira Nganjiwa. Beyond legalese, the ruling means all government agencies with prosecuting powers do not have the prosecutorial discretion to institute legal proceedings against public officers in Nigeria without the accused going through administrative procedure, thereby jettisoning the convention of interdicting public officers on trial. 

Before Justice Adedayo Akintoye of Lagos High Court sitting in Igbosere, EFCC arraigned Justice Nganjiwa; accused of allegedly receiving $260,000 and ₦8.65 million through his bank accounts between 2013 and 2015 from suspicious sources; allegedly used the money to enrich himself as a public official. Accordingly, the cash did not correspond with his salary, an offense contrary to section 82 (a) of the Criminal Law of Lagos state, 2011. EFCC also accused the judge of giving it false information. This translates to “perjury” under the Criminal Code in the Southern states (or its equivalent: “false evidence” under the Penal Code in the Northern states).

Reading the lead judgment, Justice Abimbola Obaseki-Adejumo held that Justice Nganjiwa’s arraignment by EFCC was not in order. Their Ladyship and Lordships treaded on the path of caution to forestall any risk of misinterpretation, and in ex abundanti cautela, the court added: “no judicial officer is covered by immunity from prosecution under the Constitution as the Constitution only grants the powers to discipline judicial officers for official misconduct to the NJC.”

Clarke (defence) had said: “I am not saying the defendant cannot be charged, but due process of law must be followed. The judge must be disrobed before he can be made to answer to any allegation,” In response, Rotimi Oyedepo SAN (prosecutor) said: “Section 6 of the constitution vested judicial powers on the court of law while Section 35 (1) (c) of the constitution exempts no one from criminal prosecution.”

Some lawyers hailed the “landmark judgment”, saying the intermediate court clipped the tyrannical claws of EFCC, asserted judicial independence and upheld the doctrine of separation of powers. They were united in saying that the power to “discipline a judge” does not rest with EFCC – the power to prosecute a judge rests with EFCC upon the recommendation of NJC.

While the said ruling is akin to judicial activism, I think it is a mockery of judicial independence inflicted by the judiciary on itself. EFCC is not empowered to discipline but to “investigate and prosecute”. NJC is constitutionally authorised to make recommendations that may lead to the prosecution of a judge. If a panel investigates and recommends punishment, what if the recommendation is contrary to other alleged extraneous offences? Even after a court-martial or guardroom trial, the officer is still triable in a court of law on the same or other charges.

Was the Court of Appeal aware that EFCC had reported judges on trial to NJC which had endorsed their prosecution and placed the judges on suspension pending the conclusion of their trial? Judicial corruption cannot be prosecuted by NJC but by executive agencies like EFCC with prosecuting powers to arraign accused persons before the trier of fact. This is according to the doctrine of separation of powers. The ruling will ignite a disjunction between the executive and judiciary. It has no basis in law, no precedence (stare decisis) in common law and constitutes a breach of the sentry function of checks and balances over separation of powers.

The Appeal Court has set a precedence that may be followed by other professionals who may insist before/after indictments to go through their professional bodies for administrative procedure before prosecution. This is tantamount to hiding under esprit de corps to evade justice. It has legal and political implications for systemic corruption. The judgment appears to have a political rather than a legal undertone as judicial corruption continues to damage the bench. EFCC is enjoined to go to the Supreme Court and seek to overturn this judicial assault on checks and balances.


By: Nnamdi Ebo
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