UNAMBIGUOUSLY, Section 98 of the
Criminal Code, CAP C38, Laws of the Federation of Nigeria, provides for
‘official corruption’ by public officials including inviting or receiving
bribes, property or benefits for a favour in the discharge of official duties, and
pegged the punishment to 7 years imprisonment if found guilty of the felony.
The classification clearly includes judicial officers and condition precedent
is commission or omission of deeds that are listed therein.
Without a doubt, the theory of
separation of powers is domiciled in the 1999 Constitution of the Federal
Republic of Nigeria providing for each of the three arms of government, to wit;
executive, legislature and judiciary some degrees of protection from
interferences. The concept traceable to the ancient Greek philosopher,
Aristotle was evident in the Second Treatise of Civil Government, a 1690
political script by John Locke, an Englishman. However, a French jurist, Baron
de Montesquieu through The Spirit of the Laws (1748) took it to the next level
and thus, universally brand-named. Essentially, the objective is to entrench checks
and balances in governance against absolutism.
Incidentally, the Court of Appeal in Hon
Justice Ngajiwa v FRN par Justice
Obaseki Adejumo, JCA who delivered the lead judgment stated that by the
doctrine of separation of powers in the constitution, Economic and Financial
Crimes Commission (EFCC) lacks powers to investigate or prosecute serving
judicial officers except such judicial officers have first been dismissed or
retired by the National Judicial Council (NJC), and consequently dismissed the
appeal. However, the court failed to put
into consideration a scenario where a particular act by a judicial officer
amounts to both a criminal offence and gross misconduct which implies that
whilst the NJC battles it as a gross misconduct, the Police or EFCC freely investigates
and prosecutes on the criminal aspects. Emphatically, a deed could
simultaneously amount to misconduct and crime, and distinguishably, the former
only breaches professional ethics unlike crimes that are offences against the state.
In all fairness, the judgment is
isolationistic for the judiciary. It implies that the court has diplomatically
designed additional immunity clauses for the judiciary, on a par with the
president, vice president, governors and deputies. The legislature too have
severally, moved motions to accord same to their principal officers but still
pirouetting. It therefore leaves the helpless masses as the only losers without
any immunity as any misconduct pitilessly quarantines them up to the maximum
prison.
Imperatively, all the advocates of separation
of powers have one object in common; that concentration of powers in a single
authority tantamount to political blunder and will inevitably open doors for
tyranny and oppression, synchronizing that absolute powers corrupt absolutely according
to Lord Acton, a British historian of the late eighteenth and early twentieth
centuries. Thus, the objective is stringently to restrain power in government
circles and not for protectionist tendencies. Arising from the philosophy, for
example, in the 1999 Constitution, the executive is involved in the appointment
and removal of judges in Sections 292 and 231. Similarly, the president assents
to bills passed by the National Assembly in Section 58(3) whilst the
legislature, on the other hand confirms appointments made by the president pursuant
to Section 147. Then, in Sections 80 and 81, the legislature ultimately performs
the duties of the custodian of the federation account as its authorization is
sacrosanct.
Interestingly, whilst the appellate
court theoretically emphasized on the doctrine, it ridiculed it in reality as its
verdict contradicted the ultimate goals. The verdict pragmatically footnotes
that judicial officers are sacred cows, and will only be charged if and when it
pleases them. The court also went astray forgetting that by the judgment, NJC;
arm of the judiciary has effusively usurped the powers of the executive to investigate
crimes. It preemptively boils down that allegations against judicial officers may
no longer see the light irrespective of the weight of evidences as power of investigation
is purportedly vested in colleagues unlike other countries where serving judges
had been severally arrested by security agencies and made to face the law as
other citizens.
By the existing constitutional
arrangements, judicial officers are not immune from criminal prosecutions
except while on official duties. A judicial officer who commits criminal offences
can be arrested outside the court premises as official duties are strictly limited
to juristic obligations which bribery, treasury-looting, murder and other vices
are not inclusive. At the moment, immunity from criminal prosecution is
provided in Section 308 CFRN and covers only the government officials listed
therein. A salient question is could a judge who pulled out a rifle and shot a
person be left for NJC to investigate prior to prosecution by the Police? Even whilst
the immunity as stated above subsists, Section 143 supra unequivocally enabled
the legislature which is a different arm, pursuant to checks and balances, to
investigate the executive officials covered by the clause and if culpable, impeach
them in lieu of prosecution unlike the present strange judicial missile that
judicial officers are untouchable except by colleagues in the profession. In a
nutshell, the verdict is a mockery on the Montesquieu theory and must not see green
light at the apex court.
Umegboro, a public
affairs analyst wrote from Lagos.
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