Blessed are the crooked judges, By Chidi Anselm Odinkalu

These latest dispositions by the NJC are worse than slaps on the wrist of errant judges. Far from discouraging judicial misconduct, the Council consecrates a ninth Beatitude: blessed are the crooked judges for they shall be entitled to a sabbatical. Put differently, the NJC seeks the beatification of judicial corruption into high virtue for which recidivist judges like Inyang Ekwo or rampant ones like Jane Inyang receive a year-long sabbatical. Judges who prize fidelity to their judicial oaths must wonder why they bother.

When he was a Justice of the Court of Appeal in the Port Harcourt Division, during the tenure of Mohammed Bello as Chief Justice of Nigeria (CJN), Alloysius Katsina-Alu was the subject of allegations of serious misconduct, which ended up before the Advisory Judicial Committee (AJC), the predecessor to the National Judicial Council (NJC). Upon finding the allegations established, the AJC determined that Katsina-Alu would be denied elevation beyond the Court of Appeal. Less than one decade later, he was a Justice of the Supreme Court. In 2009, he assumed the office of CJN.

On 30 April, the NJC, this time under the leadership of a different CJN, announced that it would similarly ban from elevation for a period of five years, Inyang Ekwo, a judge of the Federal High Court in Abuja. Additionally, the Council decided to place him on a “watch list” for five years and to suspend him from judicial functions for one year.

According to the NJC, these measures became necessary because in a 2023 case, Inyang Ekwo “delivered a ruling in a pending application without hearing the parties” and “ignored an application to set aside the proceedings of the Court conducted in the absence of the parties.” These, the Council found, violate Rules 3.1 and 3.3 of the Revised Code of Conduct for Judicial Officers in Nigeria.

For the avoidance of doubt, Rule 3.1 of the Judicial Code of Conduct requires judges to be “true and faithful to the Constitution and the law and [to] uphold the course of justice….” Nigeria’s 1999 Constitution guarantees fair hearing in judicial and legal proceedings as a fundamental right. Accordingly, Rule 3.3 of the Judicial Code of Conduct requires all judges to ensure that they afford to all parties in proceedings before them a “full right to be heard according to law.”

A judge holds office under the constitution. Before assuming office, the judge publicly swears to an oath to uphold that constitution and to do justice to all persons in accordance with it. Put differently, Inyang Ekwo violated the most basic expectation and entitlement of litigants before a court and a judge.

Inyang Ekwo became a lawyer in 1991, after graduating with a degree in law from the University of Cross-River State. Following a career spent mostly as a staff of the Corporate Affairs Commission in Abuja, he was transitioned to the bench of the Federal High Court on 3 January, 2008. His path to this judicial sinecure was smoothed in no small measure by family networks, which lock-in closely with the founding military administrator of the South-Eastern State (the legacy state of both Cross-River and Akwa Ibom states).

By 2023 when the facts of his latest mis-conduct arose, Inyang Ekwo had been a judge for over 15 years. Judicial inexperience was not one of his liabilities.

…what would it take to persuade the NJC that a person is too crooked for judicial office?… This last question is at the heart of the problem with what the NJC claims to have done in this latest instalment of a pattern of decision-making that enables judicial corruption, instead of curbing it.

The measures announced by the NJC against Inyang Ekwo this past week were the second in eleven months. On 16 May 2024, the same NJC found the same Inyang Ekwo guilty of “abuse of discretionary power of a judge by wrongly granting an ex parte order.” He was therefore “barred from being elevated to a higher Bench for a period of two years.” That decision of the NJC had not spent its first year when they found the same judge guilty of even more egregious violations this time. This suggests that Inyang Ekwo is a compulsive recidivist in judicial misconduct. Even now, there remain other serious complaints against the same judge still under investigation with the NJC and many more questions besides to resolve.

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First, it is not clear whether the Council reminded itself of the subsisting punishment when it decided on its dispositions in the latest one.

Second, if the NJC determined last year to preclude Inyang Ekwo from elevation for two years; and this year, in another case, to do the same thing for five years, are these to run concurrently or consecutively?

Third, it’s not exactly clear what placing a judge on an NJC “watch-list” means or why anyone would consider the proposition anything other than absurd.

Fourth, what would it take to persuade the NJC that a person is too crooked for judicial office?

This last question is at the heart of the problem with what the NJC claims to have done in this latest instalment of a pattern of decision-making that enables judicial corruption, instead of curbing it.

Inyang Ekwo was one of three judges suspended by the NJC this time. Jane Inyang (no relation of Inyang Ekwo) was appointed a justice of the Court of Appeal in September 2023, after eight years as a judge of the Federal High Court. According to the NJC, while a case was still pending before her at the Federal High Court, Jane Inyang “issued inappropriate ex parte orders for the sale of a petrol station and other businesses” in dispute in the case. This was the same kind of mis-conduct for which the Council issued Inyang Ekwo with a letter of caution in May 2024.

In the case of Aminu Baffa Aliyu, another judge of the Federal High Court to whom the NJC applied similar measures, they found that he unlawfully restrained the security services from performing their statutory functions and, even worse, effectively overruled the Supreme Court in order to do so. The NJC decided, in addition to suspending him without pay for one year, to preclude him from elevation for three years.

This time, however, the NJC decided to suspend Jane Inyang from judging for one year and without pay. Like Inyang Ekwo, she will also be denied elevation for five years. That means that after five years and with this record, she could find herself a justice of the Supreme Court. The fact that a judge with this kind of record was promoted to the Court of Appeal, while the complaint against her mis-conduct was – in all likelihood – pending, says all that anyone needs to know about the state of disrepute into which judicial appointments in Nigeria have fallen.

In the case of Aminu Baffa Aliyu, another judge of the Federal High Court to whom the NJC applied similar measures, they found that he unlawfully restrained the security services from performing their statutory functions and, even worse, effectively overruled the Supreme Court in order to do so. The NJC decided, in addition to suspending him without pay for one year, to preclude him from elevation for three years.

In August 2017, when the United Nations Office of Drugs and Crime (UNODC) and the National Bureau of Statistics (NBS) issued a joint report naming the Nigerian judiciary as “the second highest receiver of bribes in the Country” after the Nigeria Police Force (NPF), the NJC bristled, dismissing the conclusion as “not only subjective but speculative.”

The NPF is the oldest institution in the country and also the largest employer. A standard cover-up procedure in the Force is to transfer out-of-station officers, against whom serious allegations of misconduct subsist, granting them a cooling off sabbatical, during which they are reported as unaccounted for. A not-too-dis-similar practice occurred in parts of the Catholic Church in the past to cover-up for priests caught in allegations of clerical abuse.

Academics sometimes also take sabbaticals with or without pay to enable them recharge their intellectual batteries or pursue other interests for the advancement of knowledge.

These latest dispositions by the NJC are worse than slaps on the wrist of errant judges. Far from discouraging judicial misconduct, the Council consecrates a ninth Beatitude: blessed are the crooked judges for they shall be entitled to a sabbatical. Put differently, the NJC seeks the beatification of judicial corruption into high virtue for which recidivist judges like Inyang Ekwo or rampant ones like Jane Inyang receive a year-long sabbatical. Judges who prize fidelity to their judicial oaths must wonder why they bother.

This institutionalises cover-up under cover of judicial ceremony. Two words describe what the NJC now does on judicial discipline: complicit scandal. It is a tendency that deserves close attention and study as a model of how the judiciary accomplishes its own evisceration.

Chidi Anselm Odinkalu, a lawyer, teaches at the Fletcher School of Law and Diplomacy and can be reached through [email protected].