Cleaning Up Judicial Rot

Worried by mind-boggling corruption by Nigerian judges, Justice Aloma Mariam Mukhtar embarks on a clean up exercise

Since he left office as the Chairman of Independent Corrupt Practices and Other Offences Commission, ICPC, in 2005, Justice Mustapha Akanbi has, through the platform of his non-governmental organisation, NGO, Mustapha Akanbi Foundation, been involved in efforts to solve knotty national problems. But one issue that has especially concerned the octogenarian is the matter of corruption in the Nigerian judiciary.

Akanbi should know. For 25 years, he was a prominent player in the Nigerian judicial system, in a career that peaked with his appointment as President of the Court of Appeal. About a year after he quit the Bench, he was appointed the pioneer Chairman of ICPC, a position he occupied for five years.

Thus, apart from being an insider in judicial matters, the retired judge has also been actively involved in the battle to fight graft in Nigeria. Indeed, as the Chairman of ICPC, the retired jurist partly attributed the failure of ICPC to bring all but two of the 85 corruption cases initiated against different individuals under his leadership to a logical conclusion to the fact that some of the judges who handled the cases may have “been paid to toss out cases.” Akanbi told this magazine in an interview last year that as helmsman of the anti-corruption agency, he had to devise a way of vetting judges to be assigned cases from the Commission. “I used to have a diary where I listed names of designated judges. In Benin, I asked the chief judge to give me two judges; in Ilorin, two judges and so on. I vet them to find out whether they (the judges) themselves were above corruption”.

While he was not categorical on whether he was privy to instances in which money practically changed hands between the judges and the persons being tried, he recalled a few instances in which the conduct of trial judges raised eyebrows. He said he nearly fought a judge over case of a man who was arraigned in court by the ICPC and was ordered to be detained after the judge granted leave to prosecute him. “When the matter came to court the following day, the gentleman applied for bail. Curiously, the same judge who granted leave for us to prosecute him, instead of deciding the application for bail, just discharged and acquitted him when there was no application for discharge and acquittal,” said Akanbi.

Such instances, he said, raise questions about the judge’s motivation. “That judge who discharged and acquitted him should have been dealt with because on ordinary bail, even first year lawyers know that in bail application, you don’t discharge and acquit people when you have not heard evidences. Even if there is delay in prosecution of cases, what you do is to strike out the case so that he could be re-arrested. But to discharge and acquit when there is no evidence, I have never heard it”, said Akanbi.

He also cited the case of a judge who granted a motion stopping ICPC from arresting an accused person who was to be arrested. “There are a plethora of authorities which say that the police cannot be stopped from investigating cases. The ICPC has the same power as the police, so, ipso facto they could not make such an order. I choose not to think that the judge is ignorant of those authorities”, said the retired judge.

Such cases which question the integrity of men and women who occupy the Bench in Nigeria have become two-a-penny in recent years. About two weeks ago, Spaces for Changes, a social justice advocacy group, petitioned the National Judicial Council urging it to dismiss and prosecute Justice Marcel Awokulehin of the Federal High Court, Asaba, for allegedly handling the corruption cases involving former Governor of Delta State, Chief James Ibori, with bias.

Peter Odili, former Rivers State Governor, had shortly after the expiration of his tenure in 2007, obtained a perpetual injunction against arrest or prosecution by EFCC. The injunction which has remained in force was granted by Justice Ibrahim Buba, just as the anti-graft agency was getting ready to press charges of unjustly looting the Rivers State coffers while in office against the Odili. EFCC itself had made allusions to the fact that corruption among judicial officers is one of the major impediments against its getting convictions, especially in cases involving politically exposed persons.

The anti-graft agency has, at different times, complained about indiscriminate granting of all sorts of injunctions, adjournments and suspicious entertainment of ridiculous motions by judges as a way of sabotaging trial of cases of corruption. While judges are always eager and will waste no time in slamming high jail sentences on advanced fee fraudsters, the anti-graft agency argued that the judicial officers, working in tandem with senior lawyers, are always willing to do the bidding of high profile suspects with deep pockets, helping them to unduly prolong trials.

The anti-graft agency insists such suspicious connivance is at the root of lack of progress in the trial of some former governors since 2007 when cases against them were first filed in court.

Even when the judges bring such cases to an end, the punishment most times is like a slap on the wrist for high profile suspects. A source in one of the anti-corruption agencies, speaking with this magazine last week, cited the example of the trial and conviction of Mrs. Cecilia Ibru, CEO of the defunct Oceanic Bank on a 25-count charge of fraud and mismanagement in 2009. Ibru who was accused of running Oceanic Bank aground pleaded guilty to three of 25 counts of fraud and mismanagement.

On 9 October, 2010, she was sentenced to six months in prison and ordered to return over $1.2bn in cash and assets in a plea bargain reached with the prosecutors, Justice Dan Abutu said while delivering judgment on the issue. The EFCC has since said the terms of the plea bargain it reached with the accused were different from the terms applied by the court.

Even then, Ibru’s six months sentence on the three count charge ran concurrently, but the banker did not even see the prison walls as she ended up spending the jail term in a private hospital. Chief Lucky Igbinedion, former Edo State Governor, was arraigned by the Economic and Financial Crimes Commission (EFCC) before the Federal High Court, Enugu on a 191-count charge of corruption, money laundering and embezzlement of N2.9b in 2008.  In a plea bargain arrangement, the EFCC through its counsel, Mr. Rotimi Jacobs reduced the 191-count charge to one-count charge which Igbinedion will plead guilty to and be sentenced accordingly. He will also refund some of the money he stole.

In line with the plea bargain, on 18 December 2008, the court presided over by Justice A. Abdul Kafarati convicted Lucky Igbinedion on the one-count charge and ordered him to refund N500million, forfeit three houses and sentenced him to six months imprisonment or the option of paying N3.6m fine. The former Governor paid the fine and walked away from the court premises a freeman to the utter amazement of Nigerians. EFCC later said the option of fine was not part of the plea bargain arrangement.  Efforts by the anti-graft agency to remedy the situation by docking the former governor on fresh charges of corruption failed, as a judge of the Federal High Court, Benin dismissed the case, arguing that Igbinedion cannot be tried twice over the same allegations!

The most recent case of judges going beyond their brief is Justice Abubakar Talba of the Federal Capital Territory High Court’s handling of the police pension scam case against a senior civil servant and alleged pension fund thief, John Yakubu Yusuf. Talba had slammed John Yusuf with a two-year prison sentence, but with an option of a N750, 000 fine after the accused pleaded guilty to stealing N32.8 billion from the Police Pension Office in a plea bargain arrangement that also involved forfeiture of assets worth billions of naira with the EFCC.

The accused wasted no time in paying the fine after which he was chauffeured away from the court premises to the indignation of many Nigerians. Jacobs told journalists that the plea bargain arrangement reached with Yusuf and which the judge was part of, included custodial sentence which Justice Talba failed to implement.

The Squib, a law journal poked pins in the tender valves of the Bench in Nigeria, yielding a big scandal. A case involving Justice Ibironke Harrison was the lead story of the journal’s 18 March 2013 edition. The paper painted a  picture of a deal gone sour involving Justice Harrison while she was in private legal practice.

According to the journal, Justice Harrison, until her appointment into the Bench, was standing trial before the Disciplinary Committee of the Nigerian Bar Association, NBA, on fraud-related allegations.

The learned justice was accused of breach of contract in a failed property transaction worth over N117million. The deal involved Onwukwe Solomon, an architect who is at the receiving end of Harrison’s alleged dishonesty. The architect claims in a petition to NBA that the respondent duped him of the money under the pretext of selling a property to him in 2008, a year before her ascension to the Bench. The petitioner claimed Harrison did not only try to sell the said property without the consent of its owner, but failed to refund the total money paid to her when the deal crumbled.

Following the petition, Harrison was arrested and interrogated by officials of EFCC. However, before the matter was resolved she was appointed as a judge of the Lagos State High Court, despite protestations by the NBA.

As with many lawsuits in the country, the NBA’s disciplinary body, which is trying to determine Harrison’s culpability or otherwise in the matter has not made any headway.

In March this year, when the case came up for hearing, the respondent was absent from the sitting. Her counsel reportedly told the committee that the date of the sitting was not convenient for the judge. The next round of sitting is scheduled to begin from 6 May. It is uncertain if Harrison would be invited again to appear before the panel. Until she clears her name, Her Lordship will continue to trudge on as a Bencher with blemish on the snow-coloured wig of the temple of justice.

Once the envy of other countries, corruption in the Nigerian judiciary did not start recently. According to one Oluwatoyin Badejogbin, the Nigerian judges connived with the military in schemes to perpetuate itself in power. “Judges who thought less of the ethics of their exalted office pandered to the whims of self-serving military juntas, wilfully succumbing to overtures to invoke their partisan support in exchange for personal gains”.  Badejogbin added in an article in the journal, Access to Justice that “Willy-nilly, they (judges) became architects and victims of the ignominious connivance that resulted in the annulment of the 1993 presidential elections.”

The embarrassing brickbats between former CJN, Aloysius Katsina-Alu and suspended president of the Court of Appeal, Ayo Salami remains fresh in the minds of Nigerians. Salami was suspended by the NJC after he refused to apologise to the former CJN whom he had publicly accused of trying to influence the outcome of the Sokoto governorship election petition that was then being heard by the appellate court.

They are many ways that judges indulge in corruption. Funke Adekoya, a Senior Advocate of Nigeria and Partner, AELEX Legal Practitioners and Arbitrators, in a recent interview, described the ways in which the Bar and Bench initiate corrupt practices: “If a lawyer says, my Lord, each time this matters come up, your court is not sitting, the case is not progressing, the judge may make a statement like, you guys are making big money and you want to kill us with work; the money you are making, are we sharing with you? Sometimes it is the lawyers who make the move to corrupt the judges. They would go there and start telling the judges that they want their matters speedily heard, and end up with a statement like ‘If it is good for me it will be good for you too!’ Some judges would fall and some would not fall.”

A recent survey by EFCC and National Bureau for Statistics with the support of United Nations Office on Drugs and Crimes concluded that “Nigerian Courts of law receive the biggest bribes from citizens among all institutions in which corruption is rampant.” The report further stated that “though bribery in the judiciary was less frequent than in many agencies, it required the biggest transactions.”

Judicial officers are also said to have found a goldmine in election tribunals. Justice Alloysius Katsina-Alu, former CJN had, in a memo preparatory to setting up tribunals that will hear petitions arising from the 2011 general elections pointedly accused judges of lobbying for appointment as members of election petition tribunals, leading to the marginalisation of many judges from the “juicy” postings.

In the memo sent to all Heads of Court, in Federal and state structures, the former CJN noted that many judges abandon a load of cases to take up tribunal appointment and consequently asked all chief judges of states and the Federal Capital Territory as well as Grand Khadis and presidents, Customary Courts of Appeal to recommend judges and khadis who had never participated in tribunal exercises from their jurisdiction. “All the judges are just using the election tribunals to make money. All those who had gone through election tribunals are millionaires today. I challenge them to say NO,” Maj-Gen. Ishola Williams (retd), Chairman of Transparency International, TI, in Nigeria recently stated. “Time was when a lawyer could predict the likely outcome of a case because of the facts, the law and the brilliance of the lawyers that handled the case. Today, things have changed and nobody can be sure. Nowadays, politicians would text the outcome of the judgement to their party men before the judgment is delivered and prepare their supporters ahead of time for celebration”, Chief Afe Babalola, SAN, Chairman Chartered Institute of Arbitrators of Nigeria lamented.

This magazine gathered that deals are usually arranged by senior lawyers, mostly in the class of Senior Advocates of Nigeria and they usually take place in destinations outside the country like Dubai in the United Arabs Emirate (UAE), London, South Africa and some remote European or Asian countries. The payments usually made in US dollars are reportedly invested in properties in Nigeria and abroad to evade scrutiny by the anti-graft agencies.

As human rights activist and lawyer, Femi Falana (SAN) argued, many senior advocates served as couriers between clients and corrupt judges. Some of the corrupt judges were even said to be in the NJC.

EFCC is reportedly beaming its searchlights on five such judges across the country it believed are living far beyond their means. Two of the judges are said to be the chief judges of their respective states. The interest of the anti-corruption agency, it was learnt, was drawn to the judges as a result of complaints against them by their colleagues, lawyers and other stakeholders in the sector.  Some of the judges are reported to own several exotic vehicles, and choice properties in and outside Nigeria. It was gathered that financial transactions of the judges, are being scrutinised while a case file is being compiled against them for possible trial.

It was this kind of rotten judiciary that Justice Aloma Mariam Mukhtar inherited and she made up her mind to make a difference.

During her screening for appointment as the Chief Justice of the Federation in June last year, Mukhtar had declared that one of her objectives in office would be to put an end to corruption on the Bench. She repeated this while declaring open a refresher course on judgment writing and delivery, organised by the National Judicial Institute, NJI, for judicial officers nationwide some weeks ago.

Nigeria’s first female CJN had at that occasion warned judges against delivering questionable judgments, arguing that “a judge should write judgment in simple and unambiguous manner such that it leaves no one in doubt as to what the judgment has addressed”. She also told the judges that “the exercise of any discretion in adjudication must be judicially, judiciously and reasonably exercised”. Like an hurricane that cannot be stopped, Justice Mukhtar as the Chairman of NJC has embarked on the cleansing of the Judiciary, weeding out questionable characters with uncommon passion.

First to feel the heat were Justices C.E Archibong and T.D Naron who were recommended for retirement from the Bench for alleged judicial misconduct. Justice Archibong was recommended for compulsory retirement to President Goodluck Jonathan over his handling of the case involving Erastus Akingbola, CEO of the defunct Intercontinental Bank.

This magazine gathered that EFCC and some senior lawyers had complained about the manner the judge dismissed the charges against the banker, alleging various miscarriage of justice in a petition to the NJC. There were also complaints against the way the judge handled a case involving some chieftains of Peoples Democratic Party.

The Justice Mukhtar-led NJC said it found most of the allegations against the judge to be true after its emergency meeting held in February. Specifically, NJC indicted the judge over his dismissal of the grievous charges against Akingbola without taking his plea and refusal to release the Certified True Copy of his ruling to prosecuting lawyers.

Justice Archibong was also indicted for issuing a bench warrant on some officials of PDP for contempt even when the counsel who was directed by the court to serve them an affidavit had not been able to serve the contempt application.

He was accused of making unfounded and caustic remarks on professional competence of some Senior Advocates of Nigeria. NJC also said there were glaring procedural irregularities which showed that Archibong did not have a full grasp of the law and procedure of the court in the manner he granted the leave sought in the originating summons that had no written address of the parties and without hearing both parties in the originating summons after he had earlier overruled the preliminary objection.

For Justice Naron, NJC said it confirmed allegations in this magazine’s cover story of July 2008 that there were constant and regular voice calls and exchange of mms and sms (text) messages between the judge and Kunle Kalejaye, (SAN), the lead counsels to former Governor Olagunsoye Oyinlola during the hearing of Osun State 2007 gubernatorial petition. The petition against Justice Naron was lodged with the NJC in 2008 and had been gathering dust therein until the appointment of Mukhtar as CJN. NJC said its perusal of the call logs of Justice Naron’s registered telephone line proved that he was in constant communication with Kalejaiye while the judge presided over the election tribunal. Naron later dismissed the petition of Action Congress against Oyinlola’s election as Governor of Osun State.

Invariably, Oyinlola was sacked by the Court of Appeal, while his opponent and incumbent Governor, Rauf Aregbesola was declared winner of the election. NJC said Naron’s action was contrary to the Code of Conduct for Judicial Officers vide Section 292 (1) (b) of the 1999 Constitution of the Federal Republic of Nigeria as amended. NJC suspended the judges and recommended that their employers– Federal Government in case of Archibong and Plateau State government in case of Plateau State– should send them packing.

NJC also recommended that the Nigeria Bar Association, NBA discipline Mr. Kalejaiye for his role in the scandal, as only the lawyers’ association can discipline its members found wanting. Both judges have since been kicked out of the judiciary.

Also, NJC set up a Committee to investigate Justice Talba over his handling of the case of John Yusuf. Two weeks ago, the CJN to the relief of many Nigerians approved Talba’s suspension for 12 months without pay as a result of the controversial judgment. It was gathered that petitions against 18 other judges are still being considered by the NJC.

The judges under probe include four justices of the Court of Appeal as well as judges who gave some of the most recent controversial judgments involving politicians. The case against the judges as well as their defence, this magazine gathered, will be determined at the next meeting of NJC scheduled for 13 June.

This magazine also gathered that beyond this, Justice Mukhtar has introduced some policies meant to make it difficult for judges to engage in corrupt practices. First, no judge can travel out of Nigeria without the NJC’s approval. Second, no judge can leave his judicial division without the permission of the Chief Judge or head of the court. It was also gathered that the CJN does not receive visitors at home, apart from family members.

Mukhtar insists that judges must carry themselves with moral dignity in the society. TheNEWS gathered that a judge allegedly beat up her 87-year old mother. And when the old woman fired a petition to the CJN, Mukhtar immediately ordered an investigation. “Mukhtar has shown that the character and strength of a leader are needed to successfully fight corruption. In fact, the CJN is generally incorruptible,” said Falana.

Mukhtar demonstrated strength of character when she was appointed CJN as the NJC, under her, ordered the reinstatement of Justice Salami. NJC actually wrote to the Presidency to absolve the former Appeal Court President of culpability. However, President Goodluck Jonathan refused. Rather, he appointed an Acting President for the Court of Appeal, twice. Mukhtar stands her ground on the issue. But how far can she go in the less than two years she has to spend as the head of the judiciary?

–Ayorinde Oluokun/Abuja, additional report Nkrumah Bankong-Obi