TO BE OR NOT TO BE-RESPECTING THE RULE OF LAW

…making a case for the court in Nganjiwa vs. Federal Republic of Nigeria

The country has been agog with the decision of the court of appeal on December 11, 2017 in the case of Nganjiwa vs. Federal Republic of Nigeria, which I suspect would end up being a landmark decision in the alleged fight against corruption in the judiciary.

The EFCC arraigned Justice Nganjiwa before a Lagos State High Court sitting in Igbosere, for allegedly receiving $260,000 and N8.65millon gratification to enrich himself as a public official.

The judge contended that by virtue of Section 158 of the 1999 Constitution, only the National Judicial Council, has the powers to deal with the kind of allegations brought by the EFCC against a serving judge.

But the EFCC’s counsel, Mr Rotimi Oyedepo, disagreed and rather maintained that despite being a serving judge, Justice Nganjiwa does not have immunity against criminal prosecution.

I must confess that this write-up does not claim to analyze the rightness or otherwise of the judgement. This is because the matter is sub judice (i.e. Latin for ‘under judgment’) meaning that it is still being tried (at the Supreme Court) in Court.

In my opinion, the court of appeal probably used the opportunity to remind us of the doctrine of rule of law. Our fledgling democracy professes the importance of the rule of law. The rule of law simply recognizes the supremacy of the law. The Constitution, being the grundnorm in Nigeria, is the basis of all other laws in Nigeria. In line with most advanced democracies, Nigeria preaches the separation of powers and puts in place necessary checks and balances to checkmate these powers.

Hence, the National and Houses of Assembly as the Legislature have the power to makes laws. The President, Governors and their agencies make up the Executive with the power to uphold the law. The courts, as the Judiciary, interpret the laws.

By the principles of separation of powers, the different organs of government must perform their different functions as assigned by the constitution and restrain from interfering with the other organ of government.

In line with the doctrine of checks and balances, the excess power conferred on these organs of government is checked. Thus, the Executive checks the Judiciary by appointing and removing judges on the recommendation of the judicial council; the Judiciary checks the Legislature by interpreting the laws passed and the Executive by judicial review of its actions; the Legislature checks the Executive by approving certain appointments and removing the president or governor via impeachment. Thus, the principles of separation of powers and checks and balances keeps the wheels running in a democratic government. Hence the independence of the Judiciary.

Thus, grouse of the case is that, the Executive under the auspices of fighting corruption, disregarded these hallowed democratic principles by engaging the Economic and Financial Crimes Commission, an agency of the Executive, to arrest and prosecute members of the Judiciary without carrying the National Judicial Council along.

The National Judicial Council is one of the Federal Executive Bodies created by virtue of Section 153 of the 1999 Constitution of the Federal Republic of Nigeria. According to its website, the NJC was created to insulate the Judiciary from the whims and caprices of the Executive. This is to guarantee the independence of Judiciary, which is obviously a condition precedent for any democratic Government. The NJC is the constitutionally recognized body set up to investigate and discipline members of the Judiciary. The independence of the NJC to exercise disciplinary control over persons was stated in Section 158 of the constitution.

One cannot understand the reasoning behind the EFCC’s decision to prosecute the Judiciary without allowing the NJC to conduct its constitutional role.

That is the crux of the court’s decision. The EFCC must follow due process in the arrest and prosecution of members of the Judiciary. The EFCC cannot arrest and prosecute a sitting judge in a court and expect a different decision. A different decision might imply that the Executive can willy-nilly arrest and prosecute members of the Judiciary when things don’t go their way.

The decision affirms the independence of the Judiciary and respect for the rule of law. The decision might be viewed suspiciously as the Judiciary protecting itself from criminal prosecution. But then, just think. Given the provisions of the constitution, couldn’t the court of appeal have got it right this time?