Constitutional Breach In Prosecution Of Judicial Officers. By Chijioke Ifediora S.

To begin this article by definition of corruption is to pretend that you don’t know what it is. No one even the judiciary is against the fight of corruption, as their are erring judicial officers in every nation. I would rather prefer to draw your attention to the imperative and mandatory question. Can a Judicial officer be arrested without constitutional procedure of relieving such officer of his duties.?

The Judiciary was established under Section 6 of the 1999 constitution as amended. It is universally accepted and acknowledged that the constitution is basic and supreme law of the land as well as the organic law, setting out the fundamental principles according to which a nation is constituted and governed. Section 1 1999 CFRN as amended

Corruption in the judiciary can be traced to Britsh in 1619 when the House of Commons set up a committee about abuses in the court of justice. the committee turned in its report on the 15th march 1620 and one of those indicted was the Lord Chancellor Francis, Lord Verulam, Viscount St Albans. The complaints were reported by the House of Common to the House of Lords, with supporting evidence of witnesses. A select committee of the house examined witnesses. Against the Lord Chancellor, 28 separate articles on charge of bribery and corruption were made. He was invited to come and defend himself but he feigned sickness. He pleaded guilty thereafter and in his written allocutus he stated.

“I do plainly and ingeniously confess that I am guilty of corruption, your sentence may not be heavy to my ruin, but gracious and mixed with mercy. After this example, it is like that judges will fly from anything that is in the likeness of corruption ….as from a serpent.” Sentence was thereafter given against him (and other) in the sum of 40,000 pounds as fine , imprisonment in the tower at the kings’ pleasure, incapacitated for life from holding any public office or employment in Britain or the entire commonwealth and that he shall be barred from ever sitting or coming near parliament or the verge of the court. According to Lord Denning, Since that time we have had no Lord Chancellor- and judge for that matter- who has accepted a bribe.”

However, like in every civilized country, the laws laying down procedure for discipline of government official are numerous in our laws. Under 1999 Constitution , complaints against judicial officers are usually sent to the National Judicial council which is headed by the Chief justice of Nigeria. The National Judicial Council sets up a committee to investigate the allegation. The Judicial Officer against whom the allegation is made is notified in writing of the allegation and is afforded reasonable time to react to the allegation. Where the allegation is proved against the judicial officer, the national judicial council shall recommend to the president or governor as the case may, such judicial officer for removal. See 3rd Schedule to the 1999 Constitution Part 1 item 21(b).

Where such judicial officer is the head of any court example Chief Justice of Nigeria or Chief Judge of the state) the President or the Governor as the case may be may not remove him except on the address of the senate or the house of assembly with two thirds majority votes of members. Sections 266(1) & 271(1) CFRN

However, a judicial officer may be disciplined by the National Judicial Council for any misconduct committed in the exercise of his judicial functions. 3rd Schedule Part 1, paragraph 21(b) of the Constitution. The disciplinary control exercised over judicial officers by NJC does not include removal of such officers from office. In other words, the council cannot remove a judicial officer from office. It can only recommend such removal. There is also Code of Conduct for judicial officers of the federal Republic of Nigeria.

This Code of Conduct applies to all Judicial Officers in Nigeria as well as the holders of every other judicial office of any inferior court whatsoever in Nigeria. item (i) of the Explanations to the Code. The said Code contains regulations meant to instil public confidence in the integrity of the Judiciary and ensure impartiality.

Judicial officers may be removed from office on any of the following grounds (a) Misconduct in use of judicial powers, (b) Breach of Code of Conduct 5th schedule to the constitution part I, paragraph 2(b) (c) inability to discharge the functions of his office due to infirmity of the mind or the body. Section 292 (1) (b) CFRN 1999

Whether the bench has been resilient in the their discipline against erring judicial officers in the fight against corruption is a different issue entirely but the recent actions of the CJN with the authority of NJC to dismiss Judicial officers in some states before handing them over to the authorities for prosecution and also awaiting the approval for removal of some Judicial officers by the Presidency ought to have been enough clue to Law enforcement agencies. The Case of Elelu Habeeb v. AGF ought to have been an insignia of how judicial officers ought to be removed.

In conclusion, I humbly submit that the law enforcement agencies acted beyond their authorised boundaries. A judicial officer cannot just be arrested and prosecuted, a judicial officer ought to discharged or stripped of his Judicial clout before being prosecuted.
The Following issues that have agitated learned scholars are;

1) Search Warrants are executed between 6:00 AM and 6:00 PM except special endorsement for it on unholy hours. who signed thus?
2) Search Warrants are valid only if issued by a court of competent jurisdiction.
3) Search Warrants obtained in one State of Nigeria cannot be executed in another State excepted it is endorsed by a Magistrate or Judge equal in rank to the one that issued the Warrant.
4) Only two or three agencies in Nigeria are charged with the investigation of corruption cases namely the EFCC, the ICPC and the Nigeria Police.
5) Politically Exposed Persons (PEPs) and VIPs who do not constitute a flight risk are usually invited to appear before investigation Agencies.
6) The National Judicial Commission (NJC) is the only body empowered to sanction Judges and Justices found wanting in the discharge of their dutiest.

From the afromentioned the following questions are open to be answered;

1) Did the arresting Agency actually procure an Arrest Warrant from a Court of competent jurisdiction?
2) Did the arresting Agency adhere to the rules governing the procurement and execution of a Search Warrant?
3) Did the arresting Agency exhaust the option of extending an invitation to the suspects before procuring the Arrest Warrant?
4) Did the arrested suspects at any time pose a flight risk?
6) Did the arresting Agency at any time write a letter to the National Judicial Commission (NJC) highlighting the offences committed by the suspects and demanding their release for an interview? We hope that some of these questions Will be answered too. The bench and the bar are committed to fighting corruption but it must be fought with the laid down rules.

Chijioke Ifediora is an associate at Dayo Akinlaja SAN & Co
Twitter @CjIfediora