The Court that killed accountability, By Chidi Anselm Odinkalu

No one wants to invest in a country in which judges lack the capacity for indignation over credible charges of judicial corruption. This is why Nigeria bleeds investments, and even those who end up investing in Nigeria don’t choose it as the place for resolving their investment disputes. They think Nigerian judges are bought and sold on the open market and the Supreme Court is unwilling to face this down… As far as judicial cuts go, it is difficult to find any more unkind or less supreme.

“If everything is for sale, including the courts and the police, trust evaporates, credit vanishes and business withers.” – Yuval Noah Harari, Homo Deus: A Brief History of Tomorrow, p 257 (2016)

It is no longer news that Nigeria’s courts have normalised corruption and abuse of power. They have also put the corruption of courts and judges beyond the realm of accountability. Having developed into a country incapable of generating indignation for these perversions of high judicial office, Nigerians nevertheless wonder why the country has descended into an orgy of violent self-help. What follows is a recent timeline of how.

In 2007, former Nigerian president, Olusegun Obasanjo, and his hand-picked electoral umpire, Maurice Iwu, presided over the most venal elections in Nigeria’s history. 86.35 per cent of the offices contested and called in that election ended up before judges, who ultimately decided the winners and losers. Unsurprisingly, the judges were under considerable pressure of different kinds.

One of the contests that ended up in court concerned the governorship of Osun State in South-West Nigeria. Presiding over the tribunal in that contest in 2007 was a judge of the Plateau State High Court, Thomas Naron. In this capacity, Justice Naron got into intimate telephone exchanges over the case with Kunle Kalejaiye, a Senior Advocate of Nigeria (SAN), representing the then governor of Osun State, Olagunsoye Oyinlola, in whose favour the tribunal eventually decided. These allegations eventually ended up before the National Judicial Council (NJC), in a petition against Justice Naron. In February 2013, the NJC found that Justice Naron had violated his judicial oath in his dalliance with Kunle Kalejaiye and terminated his judicial career.

Separately, the Legal Practitioners Disciplinary Committee (LPDC) took up a complaint against Kunle Kalejaiye for violation of the Rules of Professional Conduct (RPC) in the legal profession. On May 21, 2015, the LPDC found Kalejaiye guilty of multiple violations of the RPC and disbarred him. Mr Kalejaiye appealed against his disbarment ultimately to the Supreme Court. On March 15, 2019, the Supreme Court decided that his right to fair hearing had been violated because a member of the LPDC, who had failed to sit in the proceedings of the Committee, had nevertheless participated in its final decision. So, the Supreme Court voided the decision of the LPDC and gave Mr Kalejaiye a clean bill of health, without clearing him of the allegation of corrupting judges. The NJC fired the judge whom Mr Kalejaiye corrupted but the Supreme Court saw nothing wrong with corrupting him.

This tendency to invent law on a whim has characterised decisions of the highest courts in Nigeria on matters of judicial integrity. On June 23, 2017, the High Court of Lagos State delivered a ruling asserting competence to try Hyeladzira Nganjiwa, a judge of the Federal High Court, for unlawful enrichment (another name for judicial graft). Nganjiwa appealed to the Court of Appeal, claiming that he could not be prosecuted for such a crime without first having been disciplined by the NJC.

This decision was a curious departure from over four decades of Supreme Court decisions. In September 1971, the Public Service Commission of Rivers State determined that Athanasius Hart, then Permanent Secretary in the state Ministry of Works, Land and Transport, was guilty of serious charges of abuse of office and official corruption. Instead of taking action against Mr Hart, the Commission transmitted its recommendations to the then military governor, Alfred Diette-Spiff, who ordered that Mr Hart be summarily retired. Mr Hart challenged the governor’s decision. He lost in the High Court and appealed to the Supreme Court, which found that the power to discipline the Permanent Secretary belonged not to the governor but to the Public Service Commission. As a result, the Supreme Court set aside the governor’s decision but, rather than reinstate Mr Hart, it ordered on November 19, 1976, that the case be remitted to the Public Service Commission “so that the Commission can exercise its powers….as it may deem fit.”

When it decided the case of Kunle Kalejaiye, the Supreme Court did not appear to remember the case of Athanasius Hart from 43 years before. Two years after, on June 16, the Supreme Court equally forgot what it did in Mr Kalejaiye’s case. The case this time involved three lawyers – Mamman Waziri, Olayori Muideen and Osaretin George Izegbuwa – disbarred by the LPDC for serious professional misconduct. As with Mr Kalejaiye, the Supreme Court found that there had been a violation of fair hearing because a member who had not participated in the proceedings voted on the final decision of the LPDC. However, unlike in the case of Mr Kalejaiye, rather than give these more junior lawyers a clean bill of health, the court ordered the retrial of the lawyers by a new panel of the LPDC. The court made no effort to justify why it decided these cases differently.

This tendency to invent law on a whim has characterised decisions of the highest courts in Nigeria on matters of judicial integrity. On June 23, 2017, the High Court of Lagos State delivered a ruling asserting competence to try Hyeladzira Nganjiwa, a judge of the Federal High Court, for unlawful enrichment (another name for judicial graft). Nganjiwa appealed to the Court of Appeal, claiming that he could not be prosecuted for such a crime without first having been disciplined by the NJC. Five months later, on December 11, 2017, the Court of Appeal agreed with him that he could not be prosecuted, except after the NJC had decided on a petition against the judge. Interestingly, when the NJC disciplined three judges for issuing “black market” ex parte orders earlier this month, it did not await nor did it receive any petition.

Nganjiwa is back judging. Justifying itself, the Court of Appeal observed: “if a judicial officer commits theft, fraud, murder or manslaughter, arson and the likes, which are crimes committed outside the scope of the performance of his official functions, he may be arrested, interrogated and prosecuted accordingly by the State directly without recourse to the NJC.” With these words, is Nigeria’s Court of Appeal saying that collecting bribes is within the scope of a judge’s official functions? By the way, if the Court of Appeal had bothered to read Nigeria’s Code of Conduct for Judicial Officers, it would have found that Rule 1(1) of the Code requires all judicial officers to “respect and comply with the laws of the land….” In effect, the distinction that the court seeks to draw between judicial corruption on the one hand and other crimes on the other, such as murder, manslaughter or arson, does not exist because the crimes in the latter category also violate the Judicial Code of Conduct. On this kind of jurisprudence, Justice Donald Ikomi would not have been exonerated after trial on a charge of killing his Police Orderly because the judicial fraternity would have invented some technicality to peclude that from happening and condemned him to a lifetime of living with an indelible reputational blot as a killer.

The decision of the Supreme Court purporting to clear Joseph Nwobike and reinstating him as a senior lawyer seals its reputation as the venue where accountability meets the judicial guillotine. Tragically, in this one decision, the court inflicts eternal injustice on Nwobike, who, like Kunle Kalejaiye, will never be able to clear his name of the stain of buying judges and suborning courts.

Following the decision of the Court of Appeal in Justice Nganjiwa’s case, in January, the High Court of Lagos discharged Mohammed Yinusa, another judge of the Federal High Court, on charges of having received unlawful payments from senior lawyers who were conducting cases before him. He was not acquitted. Thereafter, the NJC reinstated him as a judge. How lawyers can appear before him and call him “My Lord”, knowing that he is forever tarnished is another matter. Similarly, on November 21, the Federal High Court in Lagos discharged Rita Ofili-Ajumogobia, another judge of the Federal High Court, from charges of money laundering again on a technicality.

In an icing on this bazaar of judicial whim, the Supreme Court, on December 20, reversed the conviction of Joseph Nwobike, another SAN, on charges of perverting the course of justice. Mr Nwobike reportedly specialised in “inducing court registrars to ensure that his cases were assigned to his preferred judges so he could obtain favourable judgments.” Nwobike, the charges read, also offered bribes to Mohammed Yinusa and Hyeladzira Nganjiwa, both judges of the Federal High Court. In a startling perversion, if ever there was one, the Supreme Court claimed that it was not “safe to regard the offence of attempt to pervert the course of justice which [Nwobike] was convicted for, where it has not been shown that it was committed with the objective of earning wealth…. as an economic and financial crime.” With clear evidence that Nwobike went about buying up judges and court registrars, the Supreme Court still wanted proof that his name was not OXFAM?

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The decision of the Supreme Court purporting to clear Joseph Nwobike and reinstating him as a senior lawyer seals its reputation as the venue where accountability meets the judicial guillotine. Tragically, in this one decision, the court inflicts eternal injustice on Nwobike, who, like Kunle Kalejaiye, will never be able to clear his name of the stain of buying judges and suborning courts. Simultaneously, it afflicts the Nigerian legal profession with indelible reputational damage.

No one wants to invest in a country in which judges lack the capacity for indignation over credible charges of judicial corruption. This is why Nigeria bleeds investments, and even those who end up investing in Nigeria don’t choose it as the place for resolving their investment disputes. They think Nigerian judges are bought and sold on the open market and the Supreme Court is unwilling to face this down. Rather, it emits high tolerance for corrupting jurisprudence and a jurisprudence of corruption, which is as unfair to honest judges as it is damaging to hardworking lawyers. So, Nigeria and its professionals lose jobs and earnings to professionals from more dependable jurisdictions and even those seen as doing well are mere bag carriers for their peers or inferiors from those places. As far as judicial cuts go, it is difficult to find any more unkind or less supreme.

Chidi Anselm Odinkalu, a lawyer and teacher, can be reached at chidi.odinkalu@tufts.edu