The Chief Justice of Nigeria (CJN) Mahmud Mohammed has said that any Nigerian accused of any crime, including the seven judges arrested by the administration of President Muhammadu Buhari, remain innocent until proven guilty. It is the law of the land, he said, adding that calls to sanction them when they are still innocent are misplaced.
The seven judges were arrested at gunpoint last month by Nigeria’s secret police, on allegations that they were corrupt and were bent on frustrating the fight against corruption being waged by Mr. Buhari.
But Justice Mohammed, who was responding to calls by Nigerian activists that the judges should be immediately handed over to the Economic and Financial Crimes Commission, EFCC, for prosecution, said it was neither his duty to hand over suspects for prosecution nor the law of the land to discipline suspects who may still be innocent.
“To be sure, every citizen of Nigeria inclusive of Judicial Officers, are entitled to the protection of the law and a key provision of the Constitution is the presumption of innocence, as enshrined in Section 36(5) of the Constitution (as amended). I must also remind us that the Seven Judges like all other persons are entitled to a fair hearing as stipulated in Section 36 of the Constitution. As such, it would be presumptive and indeed preemptive to sanction the said judges without exhausting the proper procedure for their removal,” Justice Mohammed said in a letter on October 26 sent to the Socio-Economic Rights and Accountability Project, SERAP.
Justice Mohammed said the National Judicial Council, NJC, he heads, had made many recommendations in the past to the executive arm of the government but its failure to implement them cannot be blamed on the NJC.
The letter, signed by the Senior Special Assistant, H. S. Sa’eed to the CJN was in response to SERAP’s request to Justice Mohammed requesting him as the Chairman of the NJC to “take over from the Department of State Service (DSS) the cases of all the 7 judges released by the DSS and refer the cases of those judges to anticorruption agencies for conclusion of investigation and prompt prosecution.”
But the CJN in reaction told SERAP that, “Certainly, you will agree with me that where there are clear constitutional provisions relating to the power of any individual, institution or Arm of Government, then it cannot deviate nor exceed such powers as this will be unlawful.”
The letter by the CJN reads in part: “While restating the willingness of the NJC to act upon any petition as well as commitment of the Nigerian judiciary to the fight against corruption, his Lordship opines that any significant involvement in the fight against corruption will be upon a similar commitment of the Prosecutorial Agencies to actively prosecute their cases expeditiously when information about same is received”
“It is necessary to restate that the NJC is a creation of the 1999 Constitution of Nigeria (as amended) being established under Section 153 with its mandate clearly set out in Para 21, Part One of the Third Schedule to the Constitution. This provision clearly stipulates at Para 21(b) and (d) that the Council may only ‘recommend’ to the President and the Governors, the removal from office of Judicial Officers and to exercise disciplinary control over such Judicial Officers, which in effect is the extent of its power to discipline. Hence, the Council cannot, suo moto dismiss any Judicial Officer.”
“The NJC can also neither ‘hand over corrupt judges to law enforcement agencies for prosecution nor recover proceeds of corruption, as you have suggested. It can merely recommend to act upon its findings, as it has always done.”
“However, in exercise of its constitutional mandate, the NJC has enacted the Judicial Discipline Regulations, 2014 in order to ensure that petitions are received, investigated and addressed as appropriate. As SERAP’s own Report attests, 64 Judicial Officers have been disciplined within 5 years even preceding the institution of the new guidelines. Any failure on the part of the Executive Arm of Government to act upon such recommendations cannot therefore be blamed upon the NJC.”
“With due consideration to the contents of your letter, I am directed to acknowledge and address the concerns which SERAP have raised, which may reflect the wider opinion held by some Nigerians. While his Lordship doubtless appreciate SERAP’s concern for the incidence of corruption in the judiciary, it is indeed erroneous to conclude that the NJC has ‘felt satisfied with applying only civil sanctions and have not deemed it fit to hand over corrupt judges to law enforcement agencies for prosecution nor recover proceeds of corruption’, as insinuated in your letter under reference.”
“To be sure, every citizen of Nigeria inclusive of Judicial Officers, are entitled to the protection of the law and a key provision of the Constitution is the presumption of innocence, as enshrined in Section 36(5) of the Constitution (as amended). I must also remind us that the Seven Judges like all other persons are entitled to a fair hearing as stipulated in Section 36 of the Constitution. As such, it would be presumptive and indeed preemptive to sanction the said judges without exhausting the proper procedure for their removal.”
“As a valuable member of the society, the Hon. CJN is certainly delighted with SERAP’s dedication to justice, fairness and justness. His Lordship also wishes to emphasize that it is indeed our collective responsibility to tackle any perceived challenges facing the Nigerian judiciary.”
“Indeed, with the support of well-meaning and eminent Nigerians such as members of SERAP, giant strides will be made towards reaching the goal of a transparent, fair and equitable system of justice. The Hon. CJN wishes you the best in your future endeavor as SERAP strives to support and entrench good governance in Nigeria.”
SERAP had in a letter dated 11 October 2016 and signed by its executive director Adetokunbo Mumuni expressed serious concern that “the NJC has for many years failed to appropriately deal with several cases of corrupt judges by failing to refer those cases to the EFCC and ICPC for prosecution. Many of these suspected corrupt judges are still alive and their cases should be promptly referred to the anticorruption agencies. The NJC under your leadership should seize the opportunity of the just released 7 judges to comprehensively address corruption in the judiciary.”
SERAP said that it believed that “The NJC is in the best position to tackle corruption within the judiciary, and to ensure the application of appropriate disciplinary and legal measures in the cases of the released 7 judges and other judges suspected of engaging in corruption.”
SERAP’s letter reads in part: “SERAP believes that corrupt judges should not merely be retired where there are clear allegations of corruption against them. Corrupt judges must not also be allowed to keep their ill-gotten wealth, or receive their pension and retirement benefits, as if they have done no wrong while the victims of their corrupt acts are left without an effective remedy.”
“SERAP believes that corrupt judges are more dangerous to the society than corrupt politicians because a corrupt judiciary denies both victims of corruption and those accused of corruption access to an independent, impartial and fair adjudication process. No country can succeed with corrupt judges as there can’t be no rule of law, development, justice and enjoyment of human rights when judges are corrupt.”
“Judicial corruption is antithetical not only to human rights and good governance but it also directly undermines the ability of government to satisfactorily combat corruption. Judges should not be allowed to avoid accountability for corruption if judicial impartiality and independence is to be held sacrosanct and access to justice is to be effectively achieved.”