“Judge not, that you be not judged. For with what judgment you judge, you will be judged….” – Matthew 7:1-2 (NKJV)
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In the first six months of 1986, Nigeria’s Supreme Court delivered two judgments with far reaching consequences for the lives and careers of two senior judges of the High Court. If the facts were to recur today, forty years later, neither of these cases would come to trial. This fact says a lot about how the standards of judicial conduct and ethics as well as accountability for both have evolved – for worse – over the intervening period.
Donald Ikomi was a judge and Chairman of the Armed Robbery and Firearms Tribunal of Bendel State when – together with his cook, Reuben Udoh, and one Martins Ekezoka – he was arraigned in December 1985 on a charge of murder.
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The case began on 5 July 1985, when Reuben Udoh discovered on the premises of 3 Obeahon Avenue in Benin GRA where Justice Ikomi lived, the remains of the Police Orderly to the judge, Uanlie Agbede. Parts of the body were missing. A post-mortem later revealed that the cause of death was “strangulation and excessive blood loss.”
At the time of the murder, Justice Ikomi was presiding over the trial of Kingsley Eweka, a member of the infamous robbery gang of Lawrence Anini. The coincidence was not immediately apparent to an undiscerning public, caught in the unusual maelstrom of a judge under suspicion for a heinous crime. In November 1985, citing a need “to uphold the dignity of the judiciary”, Ibrahim Babangida’s military regime relieved Justice Ikomi of his judicial appointment.
The following month, on 11 December 1985, the Attorney-General secured permission from the High Court for his trial to begin. In May 1986, the Supreme Court presided over by Anthony Aniagolu threw its not inconsiderable weight behind that decision.
Following a ten-day trial, on 15 July 1985, the High Court of Bendel State discharged and acquitted Justice Ikomi (and his co-defendants). His daughter, Timeyin Baiyekusi, would later reveal that her dad was framed by George Iyamu, a Deputy Superintendent of Police, who “had already succumbed to pressure from (Lawrence) Anini to help ‘kill’ the case (against Kingsley Eweka) in the armed robbery and firearms tribunal headed by Justice Ikomi.”
Earlier in January 1986, a full panel of the Supreme Court presided over by Chief Justice Ayo Irikefe, overturned the conviction of Paul Anyebe, a judge of the High Court of Benue State, on charges of illegal possession of firearms. Following his conviction by the lower court, the Advisory Judicial Committee (AJC), the predecessor to the National Judicial Council (NJC), had Justice Anyebe relieved of his judgeship. He was, however, reinstated after his acquittal, retiring thereafter as an honorable judge.
These two cases showcased the immense challenges associated with accountability for allegations of serious malfeasance against judges. On the positive side, justice was served. Justice Ikomi, in particular, received full exoneration and his family and children retrieved their name with pride and honour. However, his life was ransacked. Born on 14 September 1935, Donald Ikomi died on 11 January 1992. It is difficult not to believe that the circumstances surrounding his trial for murder that he did not commit assuredly contributed to his untimely death at the age of 56.
Both Justice Anyebe and Justice Ikomi had impeccable judicial reputations before their respective ordeals. Yet, rather remarkably, no one suggested then that their office, status, or reputations afforded them immunity against the charges.
In the past week, echoes of aspects of the controversy around accountability of judges in Nigeria have returned as the Code of Conduct Bureau has reportedly begun an investigation into asset declaration compliance by the serving Chief Judge of the Federal High Court, John Tsoho. This followed a report that he had “violated Nigeria’s Code of Conduct law by failing to declare some of his bank accounts in his asset declaration form.” The undeclared assets reportedly included accounts in different banks denominated in both the Naira and in foreign currencies.
Following upon this report, the President of the Nigerian Bar Association (NBA), Afam Osigwe, a Senior Advocate of Nigeria (SAN), reportedly wrote to the Chairman of the CCB to tell him that “the bureau lacked constitutional authority” to investigate John Tsoho.
Backing up their president, three branches of the NBA in Benue State followed up in similar language to assertimmunity from investigation for John Tsoho, asserting that the CCB “lacks the constitutional authority to summon a sitting Chief Judge. It is settled law that only the National Judicial Council can investigate or discipline a serving judicial officer.” John Tsoho comes from Benue State.
Sadly, however, the claim that the NBA makes under guise of judicial and constitutional authority does not exist in Nigerian law. For clarity, three lines of cases emerged in the 20-year period from 2002 to 2022 to define the scope of law applicable to the accountability of judges in Nigeria.
First, in May 2002, the Supreme Court decided in a case initiated by Chief Gani Fawehinmi that although Governors as state chief executives were immune from legal process under the constitution, that did not preclude institutions of law enforcement from investigating them even while they were in office. In effect, assertions of immunity do not trump the power of investigation.
Second, ten years later, in April 2012, the Supreme Court decided in a case arising from the attempt by the governor and House of Assembly of Kwara State to strong-arm former state Chief Judge, Raliat Elelu-Habeeb, out of office that a Chief Judge could not be removed from office except upon the advice of the NJC.
Third, another ten years later, in May 2022, the same court decided in a case concerning Hyeladzira Nganjiwa, a judge of the Federal High Court, that a serving judge could not be prosecuted except upon a dispositive decision by the NJC. The decision in this case arose from the effort of the Economic and Financial Crimes Commission to prosecute the judge on charges of money laundering, corruption, and perverting the cause of justice. The decision was controversial because an investigation committee of the NJC headed by a former Justice of the Supreme Court, Emmanuel Ayoola, had indeed found the judge guilty of serious infractions of the judicial Code of Conduct in 2019.
In raising concerns about the reports swirling around the Chief Judge of the Federal High Court, the NBA recalled the playbook leading to the unlawful removal from office of Chief Justice of Nigeria, Walter Onnoghen, in 2019. The removal of Chief Justice Onnoghen did not pretend, however, to have anything to do with law or legal process. It should not be repeated as a model for judicial accountability nor cited as reason for claims that have no basis in law or common sense.
Part 1(A) of Schedule III of Nigeria’s 1999 Constitution establishes the CCB and endows it with powers to, among other things, “receive complaints about non-compliance with or breach of the provisions of the Code of Conduct or any law in relation thereto, investigate the complaint and, where appropriate, refer such matters to the Code of Conduct Tribunal.” The NJC’s own judicial Code of Conduct requires judges to be “true and faithful to the Constitution and the Law”, while the constitution of the NBA requires it to promote the rule of law.
The position of a High Court judge is high constitutional office. The law requires occupants of the office to make asset disclosures and the constitution confers on the CCB an explicit mandate to investigate and verify such disclosures. The idea of an impunity carve-out for judicial officers from this power of investigation of the CCB is contrary to the constitution, the judicial Code of Conduct; and the NBA Constitution. It is thus clearly unsustainable.
If, however, the CCB’s investigation discloses serious infraction, the state of the law is that they should first file their findings by way of a complaint with the NJC for disciplinary action against any judge involved. That is the only way to balance the interests of the public, the judiciary, and individual judges in this complex landscape of shifting values in search of a judiciary worthy of the name.
Chidi Anselm Odinkalu, a lawyer, teaches at the Fletcher School of Law and Diplomacy and can be reached through [email protected].
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