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(OPINION) Still on the matter of the arrested Judges

Written By Idoma Television on Tuesday, October 18, 2016 | 1:22:00 AM

By Joey Terna Agor

After reading the lengthy NJC statement in reaction to the DSS's arrests of some Judges, I was left nonplussed. The NJC struggled to state its case making heavy weather of its "exclusive disciplinary powers and jurisdiction" and invoking technicalities. But for me the lesson of the NJC's reaction is contained in the figures the statement displayed.

In the 16 years since it first met (2000-2016) aggrieved members of the public have filed 1808 petitions against judicial officers. Of this number, the NJC reprimanded 82 judicial officers, recommended the compulsory retirement of 38 others and dismissal of 12.

In other words, out of 1808 judicial officers petitioned, only a total of 50 (38+12) were forced out of the judicial system through retirement or dismissal.

Going by this record, the following may be inferred: statistically, there is a 1 in 47 chance that a judicial officer petitioned will be retired. 1 in 150 chance that he will be dismissed, 1in 36 chance that he will be retired or dismissed, 1 in 22 chance that a judicial officer petitioned will be reprimanded and a 1 in 13 chance that a petition will merit any action at all and not get tossed out entirely.

These are sobering statistics. The low probability of sanction impression suggested by the NJC figures is more likely to embolden rather than deter judicial officers inclined to corrupt conduct. A wholistic picture is this: out of 1808 petitions treated by NJC in 16 years only 132 merited some form of disciplinary action (reprimand, retirement or dismissal) and the remainder, a whopping 1676 petitions were tossed out or trashed. Clearly, anyway you slice it, specific action categories or wholistically, the picture that emerges doesn't look good.

The 1676 petitioners who lost out will feel despondent and will spread negative vibes in the public space about the NJC and the Judiciary. The 1676 Judges who survived any form of disciplinary action from those petitions will likely gloat about the frivolity of public petitions. Either of these likely scenarios ought not be the take home point from NJC's disciplinary action or inaction but rather a feeling that justice has been served in each individual case by the winners and losers alike.

A disciplinary system that routinely tosses out petitions without any form of disciplinary action will not command public trust and respect. The truth is that fellow Judges, Judiciary workers, lawyers and public stakeholders know the few bad eggs amongst them that are corrupt. They are talked and murmured about in hushed and not so hushed tones. An effective NJC disciplinary system will be a huge relief and big service to the overwhelming majority of good, upright Judges who unfortunately and unfairly walk in the dark, tainted shadow of a "corrupt Judiciary" that is cast over them by the few bad ones.

Regrettably, rather than view the DSS anti-corruption arrest of some Judges as a learning experience and opportunity to review its "comfort zone" modus operandi, the lengthy NJC statement adopted a defensive posture, asserting its exclusive disciplinary powers and jurisdiction turf as well as upholding its administrative procedures as a basis for charging the DSS with violation and breach of its exclusive powers and procedures.

Unlike the US Constitution which did not expressly provide for judicial review in Article 3 and it took the courage and creative genius of Chief Justice John Marshall to assert and read that exclusive review power into the US Constitution in the now locus classicus case of Marbury v. Madison, 5 U.S. 137 (1803), our Constitution on the other hand makes plenary provisions on judicial powers, Chapter 1, Part II, Section 6(6).

It is clear that the DSS arrests will end up in court where the allegations of substantive violations and procedural breaches asserted by NJC in its statement will be examined judicially, so why didn't the NJC wait to have the courts set it straight in this matter? Wouldn't a subsequent judicial decision upholding the NJC's position be viewed negatively as self-serving or self-preservatory?

The public mood in Nigeria right now is decidedly anti-corruption. All arms of government especially the judicial arm as well as private business and the citizenry ought to key into this mood. One more historical example from the US will help in this regard. President Franklin D. Roosevelt enacted "New Deal" legislation aimed at getting the US out of the Great Depression but was being obstructed by a conservative Supreme Court that upheld Laissez faire economic philosophy (unregulated freedom of contract, exploitation of child labor, onerous contract terms, exploitative wages, etc environment) and consistently struck down New Deal legislation that were challenged, which sought to regulate labor and business practices (child labor, minimum wage, work hours, etc laws and regulations).

Fed up with the court's obstructionism President Roosevelt moved to sidetrack it by sending to Congress a Court-reform bill (that became known as the Court-packing bill) which would have authorized him to increase the number of Supreme Court Justices from 9 to 15 and thus pack it with Justices who would have neutralized the conservative block in the Court. Sensing that impending fate the Court made a dramatic jurisprudential switch to avoid it (a switch that became known as "The switch that saved the Nine) in the now famous case of West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) in which the Court against a long consistent record of routinely striking down New Deal legislation that was challenged upheld it instead.

As it was in America in 1937 with the New Deal so it is in Nigeria now with anti-corruption. The public mood is not sympathetic to the usual comfort zone, business as usual obstructionism and if the President is compelled to pursue reforms to overcome it there will be a huge reservoir of public support for them. The better and preferable approach in my sincere opinion therefore, is for pertinent arms and agencies of government to make the necessary switch to fall in step with the anti-corruption fight by reviewing weak laws, regulations and procedures that negate the waging of an effective fight against corruption.


Agor, a corporate attorney, writes from Abuja.


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