The second part of the paper by a former President of the Court of Appeal, Justice Isa Ayo Salami (retd), on the issue of corruption in Nigeria and the way out. Excerpts:
For instance, when I was invited by Honourable Justice Aloma Mariam Mukhtar, CJN, and Honourable Justice Mahmud Mohammed, JSC, who was then the next most senior justice of the Supreme Court, and now the incumbent CJN, to discuss the issue of whether I would be prepared to accept the decision of the National Judicial Council to stay for three months and then leave the service, the options were laid before me. They were whether I was agreeable to come and spend three months and then proceed on retirement or the impasse would continue. I opted to return, spend three months and proceed on retirement. They were apparently taken aback as they did not anticipate this response from me. My Lord, Mukhtar, was obviously uncomfortable with my choice and was visibly shaken. She asked if I took proper advice on the issue and I assured her that I did. She then stated that if she were me, she would seek further advice. She left the meeting and returned to her desk. I was given one week to think over it. She did not find time for me until about a fortnight or more later.
Meanwhile, she had embarked on the appointment of Honourable Justice Zainab Bulkachuwa as the acting President of the Court of Appeal. Indeed, she had already forwarded her recommendation to President Goodluck Jonathan, who had, in turn, forwarded it to the Honourable Attorney General for his comments. I feigned ignorance of the steps being taken which explained her conduct when we first met.
On arrival, she asked me if I had sought proper advice on the matter. I answered in the affirmative and requested that the letter be written in a manner that it does not create the impression that I was being forced out of office and assured her that I still stood by my earlier acceptance to abide by the Council’s decision to return to the office for three months and retire. She then retorted: “They do not want you again, and the justices are no longer behind you”. I do not know how she arrived at her conclusion that most of the justices were no longer in my support. But I was sufficiently of the presence of mind to ask her who were the “they” that did not want me, and she replied the government.
I suggested to her to advise the government to take its case from the National Judicial Council to the floor of the Senate, which has the constitutional power to recommend my removal. She, at that stage, kept quiet. It was then Honourable Justice Mahmud Mohammed (JSC as he then was) cut in to ask for my letter giving notice of retirement. I suggested to them to give me a letter recalling me, and I would, in turn, give them my notice of retirement terminating at the end of the three months proposed at their meeting which period both of them had allegedly agreed to frustrate to endear them to the executive arm of government. They insisted that I should give them notice of my retirement without receiving a letter recalling me. It was then Mahmud Mohammed (JSC) told me that they (National Judicial Council I presume) are an agency of the government and would do what the government wanted.
I told them that without a letter from the Council, they should forget about my issuing them with a notice of retirement. Knowledge is power! If I were not aware of what was going on, I would, wittingly or unwittingly, believing that they were working in good faith, have given them a notice which they were possibly going to abuse. The game plan was probably that, on receiving my letter, they would tell me that the notice of retirement was accepted with period of notice waived, and I should proceed on retirement immediately to the satisfaction and pleasure of the President and utter neglect or dereliction of their constitutional function of protecting the judiciary from the executive. This gives me a fresh remembrance of the tenure of Mohammed Lawal Uwais, CJN. He was described “as straight as a bullet, he can’t bend” by his predecessor, Honourable Justice Bello, CJN.
After the 2003 general elections, President Olusegun Obasanjo was apparently informed that some senators and members of the House of Representatives, elected from Anambra State, would not be loyal to him. He replaced the three senators and 15 House of Representative members who contested and won the election and were presented with certificates of return with another set of senators and members of the House, who were not nominated at the party’s primary, not to talk of contesting and winning election. He caused the Independent National Electoral Commission to issue his selected senators and House of Representative members with certificates of return. The truly elected members successfully prosecuted their election petitions before election tribunals set up for the state. The tribunals rightly returned all the three senators and members of the House of Representatives.
The imposed members of the House of Representatives and senators appealed to the Court of Appeal. The court, while delivering its judgment in the first case to be heard regarding a senatorial seat, was chased out of the court hall on the allegation that some members of the panel had been bribed. The President of the court was, therefore, compelled to constitute another panel to take the appeals in Enugu. The new panel, which I led, comprised of justices from other divisions of the court. On the first day of our sitting, members of the panel were served with copies of a petition alleging corruption and undue influence. I was served the previous day because I arrived on Sunday and was in the court to read the files on Monday. President Obasanjo minuted on copies of the petitions to the then Chief Justice of Nigeria, Uwais, stating that he was in Enugu over the weekend and heard about the rumour of offering bribe to us. He then directed Honourable Justice Uwais and the Attorney General to investigate the matter.
Honourable Justice Uwais turned down his request and wrote the President that the allegation against the justices could only be investigated by the National Judicial Council under the Constitution and not by a committee of Chief Justice of Nigeria and the Honourable Attorney General of the Federation as constituted by President Obasanjo. Our present crops of Chief Justices of Nigeria would have fallen head over heels in obliging the President! The petitions were duly endorsed for our respective comments. The petitions and our answers were sent to a committee of the National Judicial Council, which, after hearing both sides, exonerated all of us, including the then President of the Court of Appeal, Honourable Justice Umaru Faruk Abdullahi. President Obasanjo wrote to congratulate all of us, except Umaru Abdullahi, whose only role was constituting the panel, although he was also accused of taking bribe. The reason he was singled out for non--commendation by the then Commander--in--Chief was best known to the two of them, particularly Chief Obasanjo.
What I am driving at here is that Honourable Justices Dahiru Musdapher and Aloma Mukhtar did not resist the Presidency from undermining the independence of the judiciary. They allowed the erosion of the separation of powers. Even after I was declared innocent, they failed to muster the courage to recall me. Rather, the two of them, jointly and severally, fiddled while the time for my retirement was ticking; notwithstanding Honourable Justice Uwais’ statement to the effect that the National Judicial Council and not the President was vested with the authority to recall me. The only time the Presidency has a role to play in the discipline of a judicial officer is when he is found guilty of misconduct, and he is to be removed. Paragraph 21 (b) of the Third Schedule Part I of the Nigerian Constitution is very clear and provides as follows in the case of federal judicial officers: “21 The National Judicial Council shall have power to – (b) recommend to the President the removal from office of the judicial officers in sub--paragraph (a) of this paragraph, and to exercise disciplinary control over such officers;”
The Council, having decided to rescind its earlier decision for removal, does not require the support or consent of the President to recall me. It is a power solely exercisable by the Council itself. Through an act of omission or commission, it refused or failed to exercise the clear and unambiguous provision of the Constitution at the instigation of the executive and thereby sent wrong signals to the judiciary. If the President of the Court of Appeal could be dealt a raw deal, it behoves other justices all over the Federation to behave properly!!! Many judicial officers, who had hitherto rebuffed pressure, were thus intimidated; hence the funny judgments subsequently coming out of courts. I have used my personal experience as a case study to demonstrate what the National Judicial Council has become.
1.) APPOINTMENT OF JUDGES The fight against corruption in the judiciary should commence from the appointment of judges or justices to the various courts across the country. The sifting should start with the quality of university degree and the law school grade. In this age of Joint Admissions and Matriculation Board, which allows a student with five credits at two sittings to gain admission into the university, prospective candidates for appointment to the Bench, without five credits at a sitting, should not be considered.
So also must aspiring judges with a university degree lower than a second class (lower division) not be considered, and all those who repeated their examinations at the law school should not be deemed suitable for appointment to the Bench. In the United States of America, to qualify as a legal assistant to a justice, one must have obtained a first class in his law degree. It should equally be further noted that in that country, law is pursued as a second and not the first degree. Closely knit to this issue of qualification is the justices appointed to the Supreme Court and the Court of Appeal on the account of their specialty in Sharia or Customary Law as prescribed by the Constitution.
No sooner they get to the higher courts than they abandon their areas of specialty such as Sharia and Customary Law, which qualified them to get to the higher court, to the detriment of the primary purpose of their appointment. These justices secure an appointment on the pretext that their specialisations are highly in demand in the superior court, and this allows them to access the Court of Appeal or Supreme Court earlier than their contemporaries who may be better than them but not endowed, versatile or lack special training in either Customary or Islamic Law. I mean that if it were not for their special training in Sharia or Customary law, they could not have been appointed to any of these courts at the time of their appointment over and above their peers.
The consequence of their conduct is that Sharia cases are piling up contrary to the clear intention of the Constitution, which was to make these judges available to handle them. There is a particular instance of a justice who, when he came to the Court of Appeal, had only served in the registry of a Sharia Court of Appeal before being appointed a judge of that Sharia Court for barely a year when he was catapulted to the Court of Appeal. Indeed, when he was appointed to the Court of Appeal, he had not acquired 12–year post--call experience to be appointed to the Court of Appeal. He had to wait for six months to make the requisite post--call experience of 12 years before he could be sworn in. It is, therefore, abundantly clear that this gentleman had neither experience of law practice in the Ministry of Justice as a legal officer nor as a private legal practitioner. He never filed statements of claim and defence and is unlikely to know their implication and, throughout the period of his post--call working experience, he never handled common law cases even as a registry staff in the Sharia Court of Appeal. To now saddle him with the responsibility of determining fine constitutional and common law cases, he would be like a fish out of water. Indeed, he had no requisite qualification required to be appointed as a judge of the High Court as set out later in this paper. On the experience required of persons aspiring to be appointed to the High Courts, the National Judicial Council, in its Extant Revised NJC Guidelines & Procedural Rules for The Appointment of Judicial Officers of All Superior Courts of Record in Nigeria, states inter alia in rule 4 (4) (1) (b) – (e) as follows – “(b) Active successful practice at the Bar, including satisfactory presentation of cases in Court as a Legal Practitioner either in private practice or as a Legal Officer in any Public Service;“(c) Satisfactory and consistent display of sound and mature judgment“in the office as a Chief Registrar or Chief Magistrate; (d) Credible record of teaching law, legal research in a reputable University and a publication of legal works, and in addition to any or all of the above; (e) In the case of appointment of a candidate to the office of Kadi of aSharia Court of Appeal, knowledge of Arabic language and grammar.”