Misconduct of Judges and Lawyers at the Rubicon, Wither Now!

This is an integral part of the rule of law in Nigeria and the same Constitution demands in Section 1(1) that: “…..its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”

Despite these constitutional provisions, successive governments have struggled to abolish corruption in all its ramifications here in Nigeria, but perhaps our Constitution needs to be amended so that it can become more specific in detailing what is considered to be graft or corrupt practices. A guiding clue can be taken from the situation in the neighbouring country of Ghana. The Ghanaian Constitution prohibits a sitting President or political office holder from collecting any form of gift (either in cash or in kind), because it could be termed as amounting to a form of bribe or undue influence. The incumbent Ghanaian President, John Mahama presently stands accused of having received a Ford vehicle as a gift from a contractor, who happens to be a national of Burkina Faso. Enraged at this situation, the Ghanaian Parliament wasted little or no time at initiating the process of trying to impeach the Ghanaian President, for what it considers to be a grave breach of the Constitution and the code of ethics, for political office holders.

Nigeria is replete with instances where political office holders, legislators and even judges have accepted gifts in one disguise or the other, from members of the public thereby undermining their respective positions and the offices they hold. It has become so endemic, to the extent that it now forms part and parcel of our culture and way of life. Tradition and complacency may well be inhibiting, but we cannot, in all honesty, continue to justify this errant behaviour. How on earth, can we justify the daughter of a sitting President being given about one hundred and thirty-four (134) cars during her wedding ceremony just over two years ago? A legal system is only as good as its ability to respond to new pressures and circumstances and our Constitution needs to be further updated, by specifically barring all political office holders, legislators and judges from accepting any form of gift (either in cash or kind) while in office. It is only by doing this, that we can be seen to be making the right attempt to stamp out graft from our daily way of life and restore confidence in our ailing public institutions.

The judiciary, for instance, is the foundation upon which the rule of law is built. It is the conscience of the people, yet so many judges in recent times have been seen to compromise themselves, by accepting gifts from either lawyers (most notably Senior Advocates) or members of the public. The Economic and Financial Crimes Commission (EFCC) is beginning to frown at this behaviour, but many perpetrators argue that they are doing no more than rendering charitable assistance. If the truth be told, it is difficult to point an accusing finger of guilt at most of them, but if we are to guide the EFCC in clamping down on this practice, then we need to make the acceptance of gifts a specific offence.

There is a Code of Conduct for Judicial Officers here in Nigeria. It provides that a judge and members of his/her family shall neither ask for nor accept any gift, bequest, favour or loan on account of anything done or omitted to be done by him in the discharge of his duties. Significantly, however,

Rule 3 paragraph f of this code permits judicial officers to accept personal gifts or benefits from relatives or personal friends. The real question though is, whether lawyers can seek protection under this rule, having regard to the rules of professional conduct in the legal profession? There is a fine line between a bribe and a gift! Whether a gift can be construed as a bribe or not depends on the motivation, the reason or intention for giving the gift in the first place. Any act or deed aimed at influencing a decision or behaviour for benefit of another, whether now or in the future is corruption. This is the underlining problem of a practicing lawyer giving a judge a gift no matter how innocent! By giving a judge a gift, he or she is cultivating a relationship between himself/ herself and the judge or between his/her practice and the judge, which ultimately at some point in time will stand to their benefit. There is therefore little or no doubt that, the giving of gifts to judges by lawyers constitutes corruption or undue influence.

The Ghanaian Code of Conduct for Judges states clearly that neither judges nor members of their families residing in their households, shall accept a substantial gift, bequest, favour or loan from anyone, except under certain stringent conditions. The rule however prohibits judges from accepting gifts, favours, bequests or loans from lawyers or their firms, if they have come or are likely to come before the judge. It also prohibits gifts, favours, bequests or loans from clients or their lawyers or their firms when the clients’ interests have come or are likely to come before the judge. Under Ghanaian law a judge is also expected to discourage family members from obtaining any form of gift, bequest or loan, because it could be seen as an attempt to try and obtain influence over the judge.

He is not however expected to know all instances pertaining to when a family member could obtain such benefits, provided he cannot be reasonably expected to know of such instances The Code of Conduct for Ghanaian Judges just like the Ghanaian Constitution, goes much further than the Code of Conduct for Nigerian Judicial Officers, but against the backdrop of the recent raids on the homes of Judges across the country and as part of measures to enhance the independence of the judiciary, the Nigerian Judicial Council (NJC) has barred judges and other court staff from accepting gifts from other arms of government. The move is aimed at enhancing the independence of the judiciary, as it also outlawed any form of lobbying of other arms of government by the judiciary or any of the institutions. The new measures are also set out to curb corruption and other unethical conduct among judicial officers and other court staff. These form part of the provisions of a new National Judicial Policy (NJP) launched in Abuja just over a fortnight ago. The new policy not only bars judges and other court staff from accepting gifts from other arms of government, but makes compliance mandatory. Unfortunately, in my respectful opinion, the new NJP doesn’t really go far enough.

The press, the so called fourth estate of the realm, has a leading role to play if we are to stamp out this culture of graft that has been plaguing us for so long. Again, in Ghana, the media should be commended for the role it has played in tackling corruption. Ethical journalism is evolving in Ghana, and recently some corrupt justices were brought down by some intensive investigative journalism, and these same investigative journalists exposed the car gift situation obtained by their President. The opposite appears to be the case in Nigeria in that investigative journalism is not at all encouraged. The recent NJP introduced measures to keep complaints against judges and other court staff from the media and public domain. Provisions in this regard are contained in Section 2(2)

(4) – 2(2)(9) of the NJP. They state that complaints of misconduct against judicial officers or employees of the judiciary, shall not be leaked or published in the media. Where complaints or allegations against judicial officers and court employees are submitted for investigations, the complainant(s) shall be made to give an undertaking not to do anything to prejudice the investigations or actions that may be taken. The NJC would be obliged to cease further action where such complaints are leaked or discussed in the media. Personally I find this particular policy rather odd. Apart from the fact that it discourages investigative journalism, it also provides the judicial officer against whom the complaint is being made the opportunity to leak it to the press in order to halt further investigations. The policy is also contrary to Section 39(1) of the 1999 Constitution (as amended) which states that:

“Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.” This must however be counter balanced against Section 39(3)(a) which states “Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society”

“for the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephone, wireless broadcasting, television or the exhibition of cinematograph films…”

The pertinent question therefore is, whether restricting the media from reporting complaints against judicial officers to the NJC is a justifiable law or policy in a democratic society? I have my doubts especially if the experience in Ghana is anything to go by. Conclusion

Corruption poses a real threat to judicial legitimacy and limits their capacity to effectively fulfil their constitutional mandate. The phenomenon of judicial corruption is not just a perception but real, and independence is all the more difficult when you have relationships, friendship or kinships. Aspects of the Code of Conduct for Judicial Officers should be put in our Constitution, in order to further cement the Fundamental Objectives and Directive Principles of State Policy aimed at abolishing all corrupt practices and abuse of power. Finally, we can also help as lawyers by designing brochures and posters with clear mission and ethic based value statements, aimed at discouraging the practice of bribe payments to judges and court staff. Collectively with the right will and determination we should be able to bring back fairness and equity into our administration of justice system here in Nigeria, but with Christmas and New Year fast approaching, I am sure our Judges will obtain a lot more than just the odd hamper, bags of rice, turkey and groundnut oil, from various lawyers and the public, over the festive period.

“THE PRESS, THE SO CALLED FOURTH ESTATE OF THE REALM, HAS A LEADING ROLE TO PLAY IF WE ARE TO STAMP OUT THIS CULTURE OF GRAFT THAT HAS BEEN PLAGUING US FOR SO LONG. AGAIN, IN GHANA, THE MEDIA SHOULD BE COMMENDED FOR THE ROLE IT HAS PLAYED IN TACKLING CORRUPTION. ETHICAL JOURNALISM IS EVOLVING IN GHANA, AND RECENTLY SOME CORRUPT JUSTICES WERE BROUGHT DOWN BY SOME INTENSIVE INVESTIGATIVE JOURNALISM, AND THESE SAME INVESTIGATIVE JOURNALISTS EXPOSED THE CAR GIFT SITUATION OBTAINED BY THEIR PRESIDENT”

By:STEPHEN KOLA-BALOGUN

Thisday News