Nemo judex and ultra vires vis a vis the National Judicial Council, the supreme court, and the 2023 elections

By Akinwande Ojehomon, Esq

Introduction

The inspiration for this article were a spate of dismissals and removal of judges from the judicial service for “misconduct”, so called, by the National Judicial Council (NJC) during the last decade. As I followed these cases in the courts and media, it became obvious to me that something was fundamentally wrong with the procedures adopted by the NJC in its purported removal of judges from the judicial service. Invariably most of these judges went to court seeking to overturn the so called disciplinary decisions of the NJC as it related to their dismissal. The lower courts had invariably sided with the decisions of the NJC until 2022, when the Court of Appeal overturned the decision of the National Industrial Court of Nigeria (NICN) that had upheld the actions of the NJC in the removal of a Judge from office. The Court of Appeal determined that the failure of the NJC to follow constitutional due process rendered any purported removal of the Judge from office null and void by the Judge’s reinstatement. With hindsight it is now possible to examine where the NJC erred in many of its disciplinary decisions and why the current structure of the NJC is at odds with the rule of law and the 1999 Constitution (as amended).

Origins

For example, couple of years ago, in a case that I am familiar with, the Chief Justice of Nigeria[1] sent a letter to the then President recommending the compulsory retirement of a judge from the judiciary for gross (serious) misconduct. It was stated in paragraph 4 of the aforesaid letter that

“Consequently, Council in the exercise of its powers under paragraph 21(b) of Part I of the Third Schedule of the 1999 Constitution of Federal Republic of Nigeria, as amended decided to recommend to Your Excellency the compulsory retirement … from office for gross misconduct vide Section 292 Subsection (1)(b) of the same Constitution please.”

The provisions of § 292(1)(b)  of the 1999 Constitution (as amended) states as follows, viz.

“A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances –

(b) in any case, other than those to which paragraph (a) of this subsection applies, by the President, … acting on the recommendation of the National Judicial Council that the judicial officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct.

Therefore, in the light of this provision a Judge cannot be removed from office before the date of retirement except for

(1) inability to discharge the functions of his office as a result of physical or mental disability;

(2) misconduct; or

(3) contravention of the Code of Conduct.

Furthermore, the National Judicial Council[2] is empowered to make a recommendation for removal of a Judge under the provisions of Paragraph 21(b) of the Third Schedule of the 1999 Constitution (as amended), viz.,

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“The National Judicial Council shall have power to –

(b) recommend to the President the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph and to exercise disciplinary control over such officers;”

The crucial question in this matter was whether the CJN and the NJC acted in accordance with the 1999 Constitution (as amended) and the laws of Nigeria, when they made the recommendation for the retirement of the judge or whether the CJN acted in contravention of the 1999 Constitution (as amended) and the procedures therein. All constitutional provisions regulating an Executive Body must be applied strictu sensu. Where a body is created by statute or the 1999 Constitution (as amended), it has no power or authority to act outside the express powers granted to it or to deviate from the express procedures stipulated in the 1999 Constitution (as amended) by which such powers could be exercised. Any slight deviation or variation of the powers of the executive body not expressly stated in the 1999 Constitution (as amended) would render all the actions of that constitutional executive body null and void ab initio and of no legal effect whatsoever. In other words, all executive bodies including the NJC, the Federal Judicial Service Commission[3] and the CJN are subject to the principle of ultra vires and concept of delegatus non potest delegare.

Federal Judicial Service Commission

It is stipulated in the Third Schedule of the 1999 Constitution (as amended) in paragraph 13[4] that

“The (Federal Judicial Service) Commission shall have power to –

(a) advise the National Judicial Council in nominating persons for appointment, as respects appointments to the office of –

(i) the Chief Justice of Nigeria;

(ii) a Justice of the Supreme Court;

(iii) the President of the Court of Appeal;

(iv) a Justice of the Court of Appeal;

(v) the Chief Judge of the Federal High Court;

(vi) a Judge of the Federal High Court[5]; and

(iv) the Chairman and members of the Code of Conduct Tribunal.

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(b) recommend to the National Judicial Council, the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph;

The NJC has argued in the past that it is not bound to seek the recommendation of the FJSC in matters involving the removal of a judicial officer from office before it could act. However, this is an interpretation against the constitution. The NJC cannot cherry-pick what provisions of the constitution to accept or reject. It cannot selectively determine what provisions of the constitution to implement or not to implement. This was the underlying basis for the decision of the Court of Appeal when it held that the NJC could not act to remove a Judge from office except on the basis of a recommendation from the FJSC

By the omission of this constitutional step during the process of removing a Federal High Judge from office, the NJC failed to give the necessary notice that a judge was being subjected to removal from office. It is the recommendation of the FJSC that alerts the Judge of the gravity of the proceedings and so is better prepared to defend against the action. Any action that might lead to punishment or severe sanctions must be expressly stated in writing to the Judicial Officer. The failure to receive a recommendation from the FJSC was a fatal faux pas and rendered the subsequent proceedings relating to the removal of a Federal High Court Judge from office by the NJC, null and void. Where laws are written, the procedures contained therein must be strictly adhered to, otherwise there would be a breach of constitutional due process.

Part 1: Ultra vires and the NJC

The consequence of § 294 of the 1999 Constitution (as amended) in relation to misconduct

Furthermore, NJC caused a brouhaha by the interpretation it gave to § 294 and whether it amounted to misconduct that could lead to the removal of a judicial officer from office. It is beyond the capacity of the NJC as an executive body created by the constitution to invent crime and punishment. That is purely and solely the responsibility of the legislature, in view of the separation of powers principle enshrined in the 1999 Constitution (as amended). Unfortunately, this is precisely what the NJC did. There is nowhere in the 1999 Constitution (as amended) wherein it is stated that the failure of a Judge to abide by the provisions of § 294 would lead to removal from office. Vide § 294 (1) – (5)

There is nothing to indicate that § 294 is meant to penalize a Judge of any court in Nigeria. Under the provisions of § 294, no penalty is attached when a judgement is not delivered within the 90 day period. If it had been the intention of the 1999 Constitution (as amended) or the framers of the 1999 Constitution (as amended) to punish Judges who failed to deliver judgement within the 90 day period, it would have been expressly indicated within the provisions of § 294 of the 1999 Constitution (as amended). After all in the 1999 Constitution (as amended) that is composed of more than 300 sections, it must be considered exhaustive of the powers it intended to grant to whatever Executive Body and it would have been a small matter to indicate under § 294 that the failure of a Judge to deliver judgement within the 90 day period would result in the removal of such a Judge from office.

In fact the only consequence of failure to render a judgement within that period is contained in § 294(5).

“The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”

The 1999 Constitution (as amended) has provisions for misconduct for judicial officers, so it is beyond the scope of the authority of the NJC to arbitrarily determine what is and what is not misconduct beyond what is prescribed under the 1999 Constitution (as amended) especially in relation to the provisions of § 294.

Fifth schedule and the issue of misconduct

The provision relating to misconduct of judges is contained in the Fifth Schedule of the 1999 Constitution (as amended). The NJC cannot usurp the functions of the National Assembly and substitute its own definition of misconduct in order to recommend the removal of a Judge from his post e.g. by the invention of a sanction for § 294(1), when the 1999 Constitution (as amended) itself did not create a sanction for the provision.

Furthermore, § 292 mentions contravention of the Code of Conduct as contained in the Fifth Schedule of the 1999 constitution. However, the NJC enacted a Judicial Code of Conduct in 2016 wherein it stated, inter alia, that a

(iii) Violation of any of the rules contained in this Code shall constitute judicial misconduct or misbehaviour and may entail disciplinary action.

This is clearly an ultra vires act on the part of the NJC. The NJC cannot extend the definition of judicial misconduct beyond what is contained in the Fifth Schedule and § 292 of the 1999 Constitution (as amended). The Judicial Code enacted by the NJC would therefore be void under the provisions of § 4 of the 1999 Constitution, as only the National Assembly shall have the power to legislate laws, regulations, rules or otherwise in respect of both judicial and executive bodies, unless such a power has been delegated by the 1999 Constitution (as amended) itself to the NJC. There is no evidence of any such delegation.

Delving further into the NJC enacted Revised Code of Conduct for Judicial Officers of the Federal Republic of Nigeria that purportedly came into force on 24th February 2016, it states the following

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Application of the Code

The Code applies to all categories of Judicial Officers throughout the Federation as defined in this Code.

Violation of any of the Rules contained in this Code shall constitute judicial misconduct and or, misbehaviour and shall attract disciplinary action.

RULES

In the performance of his duties, a Judicial Officer shall adhere and observe strictly the rules set in the Code. Non observance of these Rules shall constitute misconduct or misbehaviour.

For instance under RULE 3 Fidelity to the Constitution and the Law, the NJC infringes on a judges inherent discretion on how to conduct proceedings in his court. The NJC states that it could amount to misconduct if a judge were to issue an ex parte communication. This is absurd. It is not the responsibility of the NJC to determine how a judge should run his court much less to create a possibility of misconduct when a judge exercises his discretionary powers in anyway he sees fit. That would infringe on the independence of the judiciary. The NJC cannot interfere with the independence of the judiciary by creating unconstitutional rules that would hamper and restrict judicial discretion in any way. The criticism here relates to all the Rules contained in the so called Judicial Code of Conduct. It means anything a Judge does is liable to be called misconduct at the discretion and whim of the NJC. This would be a formidable weapon for illegally intimidating judges and exercising unlawful control over them. The 1999 Constitution (as amended) never gave the NJC this kind of power over judges. The NJC’s right of disciplinary control over the judiciary is not a right to legislate misconduct for the judiciary. That right belongs solely to the National Assembly.

Misconduct per se in the 1999 Constitution (as amended) is restricted to serious matters i.e. “misconduct of such nature as amounts to bribery or corruption or false declaration of assets and liabilities.” The only misconduct known to the constitution relates solely to bribery; corruption[6] and false declaration of assets and liabilities. The NJC extension of the definition of misconduct to include Rules contained in its Judicial Code of Conduct are ultra vires, null and void because the NJC does not have the constitutional capacity to enhance, enlarge or extend any of the provisions of the 1999 Constitution (as amended) relating to misconduct.

Furthermore, item 53 of the Exclusive Legislative List prevents any other body from legislating on matters that pertain to items on the Exclusive Legislative List. If there is no express delegation of authority for the NJC to enact or adopt a Judicial Code as the case maybe, then a Judge cannot be found guilty of misconduct leading to disciplinary action or removal from office under the provisions of such an “NJC enacted” Judicial Code. Where the NJC believes it is necessary to expand the definition of misconduct beyond what is already contained in the 1999 Constitution (as amended), it must seek the intervention of the National Assembly to enact the necessary supplementary legislation.

For example, it states in paragraph 15(4) that

“The National Assembly may by law confer on the Code of Conduct Tribunal such additional powers as may appear to it to be necessary to enable it more effectively to discharge the functions conferred on it in this Schedule.”

Furthermore, paragraph 16(2) states that

“The power to appoint the staff of the Code of Conduct Tribunal and to exercise disciplinary control over them shall vest in the members of the Code of Conduct Tribunal and shall be exercisable in accordance with the provisions of an Act of the National Assembly enacted in that behalf.”

I submit that these two provisions contained in the Fifth Schedule apply mutatis mutandis & in pari materia to all the Executive Bodies created under § 153, including the NJC, by the 1999 Constitution (as amended). Where an executive body requires supplementary Rules or regulations, only National Assembly can enact the necessary supplementary legislation e.g.  the National Assembly could enact a supplementary Code of Conduct  for Judicial Officers on the basis of recommendations from the NJC. However, it is my view that constitutional provisions for misconduct are entirely sufficient and there is no need for supplementary legislation of any sort. The NJC has no authority to create new categories of misconduct by which to determine the culpability of judges when misconduct has already been clearly and exhaustively defined in the constitution by Paragraph 19 of the Fifth Schedule that states:

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“misconduct” means breach of the Oath of Allegiance or oath of office of a member or breach of the provisions of this Constitution or a misconduct of such nature as amounts to bribery or corruption or false declaration of assets and liabilities;”

Breach of the constitution and misconduct

However where misconduct involves a breach of the constitution, it is only the National Assembly that can determine what specific provisions of the constitution shall constitute misconduct and not the NJC. Therefore referring back to § 294 the NJC cannot determine that it is a breach of the constitution that can result in the removal of a judicial officer from office. The same goes for all the provisions contained in the 1999 Constitution (as amended). Only the National Assembly can determine what provisions of the constitution can constitute a breach that could lead to sanctions against any category of public (judicial) officer.

This is a clear instance where the NJC has acted ultra vires its authority by the unconstitutional assumption of legislative powers contrary to § 6 to enact a Judicial Code of Conduct and Rules relating to misconduct. The only power of legislation that the NJC was granted was to enable it regulate its OWN PROCEDURE and not the regulation of the procedure of the judicial service! It is the responsibility of the Judiciary to regulate its own procedure and not that of the NJC.

Inasmuch as a Judge has not been accused of breaching his oath of allegiance or office; for bribery, for corruption or a false declaration of assets & liabilities, the NJC’s additional definitions of misconduct as contained in the Judicial Code cannot stand. In other words, the NJC cannot add to or subtract from the provisions of the 1999 Constitution (as amended). Where such additions or subtractions have occurred, they are ultra vires the powers the NJC, and must be declared null and void ab initio by a court of competent jurisdiction. Where omissions or errors exist in the 1999 Constitution (as amended), the NJC cannot cure such errors or omissions. It cannot substitute its own definitions. That must be left to the National Assembly to enact the necessary legislation.

In part II of the Fifth Schedule, paragraph 5 states that:

“Chief Justice of Nigeria, Justices of the Supreme Court, President and Justices of the Court of Appeal, all other judicial officers and all staff of courts of law,”

are public officers for the purposes of the Code of Conduct. It would therefore appear that where a Judge is accused of a breach of the Code of Conduct, the only Code of Conduct under which disciplinary action can be brought would be under the provisions of the Fifth Schedule contained in the 1999 Constitution (as amended)

In the light of this, numerous cases by the NJC have been completely arbitrary in lieu of the fact that they are not based on the rule of law but on the arbitrary decisions of government officials who have misunderstood the powers they have under the constitution e.g. the CJN, and the President of Nigeria when misled by the CJN by failing to adhere to constitutional due process and the Rule of law. Such executive governmental acts would be ultra vires the 1999 Constitution (as amended). The CJN, when acting as a member of the executive branch of government cannot act beyond his powers where his executive actions and that of the NJC were not based on the 1999 Constitution (as amended) or any written law but on executive (administrative) decisions that were made without the backing or tenor of law.

Reliance on allegations instead of evidence

Consequently, in administrative matters wherein Judges are called to answer for their conduct, the proceedings must be in accordance with the spirit and letter of the 1999 Constitution (as amended). The onus of proof cannot shift to a judge accused by way of petition, as if the petition was true. Affirmanti Non Neganti Incumbit Probatio i.e.

“the burden of proof is upon him who affirms (plaintiff) – not on him who denies (defendant).”

Generally it is the duty of the person who asserts something to produce evidence in order to prove it. It is the duty of the party affirming something to submit sufficient evidence on an issue in order to avoid dismissal of the petition etc. In a criminal trial the burden of proof required is on the prosecutor to prove the guilt of the accused “beyond a reasonable doubt.”

Similarly, in disciplinary cases the burden of proof is always on the petitioner, not on the person petitioned against. A petition is not evidence of the petition, inasmuch as the proof must be separate and independent from the petition itself. The burden of proof is not on the Judge petitioned against but on the petitioner, making unsubstantiated allegations. There is no reason for a person to explain their conduct in the absence of a legal requirement to do so. All persons are protected by the principle of self-incrimination. No one is required to give evidence against themselves. It is not the Judge accused of misconduct that must prove innocence but on the NJC to prove guilt.

This concept is fundamental to our jurisprudence. § 36 (5) and (11) states that

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(5) “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty;”

(11) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.

In the case of judges the provisions must be read as follows, that

Every Judge charged with misconduct shall be presumed innocent until proved guilty and

No Judge tried for misconduct shall be compelled to give evidence.

This is to protect the fundamental rights of judges to a fair trial like every other Nigerian. Misconduct in the constitution is essentially criminal in nature e.g. corruption, bribery etc. the NJC appears to forget that judges also must be afforded every protection and not made scapegoats for the failure of Nigerian society. The NJC appears to forget that they are required to apply the provisions of § 36 to whatever disciplinary action they may choose to take against any Judge accused. Consequently, an unsubstantiated petition alleging wrongdoing cannot be the basis of any disciplinary action against a judge, inasmuch as no person is required to establish his innocence. On some issues, the burden of proof may shift to the accused, such as when the accused raises a defence that requires affirmative proof by the accused to defeat the petitioner’s claim or a law places the burden on the accused in certain instances. If at the close of the petitioner’s case, sufficient factual evidence has not been produced to support the allegations contained in the petition, the normal course of action should be for the NJC to dismiss the petition as unsubstantiated without the need to call upon a Judge to put up a defence.

As Coke said, Non in leyendo, sed in intelligendo, leget consistunt, the laws consist, not merely in being read, but in being understood. It is clear from the foregoing, that the NJC has not understood its powers under the 1999 Constitution (as amended), as depicted by its actions in several recent cases of purported removal of Judges. The 1999 Constitution (as amended) cannot be read as if it is text of literature but must be strictly construed as a legal document. The NJC’s interpretations of its powers under the 1999 Constitution (as amended) are the type of constructions that would be made by a layman, a person who is not versed in the law. Removal of a Judge is not meant to be easy, and the NJC cannot create a process to suit itself, but violates the 1999 Constitution (as amended) in order to carry out its duties.

PART II NEMO JUDEX

composition of the FJSC and the NJC

By virtue of the provisions of the 1999 Constitution (as amended) the CJN is ex officio Chairman of the NJC. Concurrently, the CJN is also ex officio chairman of the FJSC. However, it is difficult to understand the reason for granting both roles to the CJN, because it rendered the composition of the NJC and the FJSC in breach of chapter IV of the 1999 Constitution (as amended) generally and in breach of § 36(1) specifically, which guarantees all Nigerians, including judges, the right to fair hearing and IMPARTIALITY before, inter alia, all superior courts of record, government tribunals and official authorities As chairman of the FJSC, the CJN is expected to recommend to the NJC, the removal of a Judge from office. This means that the CJN is already biased when the recommendation comes to him as chairman of NJC. It therefore means that the NJC cannot be impartial being a prerequisite for adjudication by any administrative tribunal. There is no reason why one individual should hold two public positions in a country like Nigeria that is teeming with talented public officials and individuals.

I assume that the rationale for the creation of both a FJSC and an NJC was to create two executive bodies that would handle the appointments and discipline of judges. In legal parlance, the FJSC would have original jurisdiction in matters of appointment and initial disciplinary investigation of Judges while the NJC would act in an appellate manner on the recommendation of the FJSC as it related, inter alia, to the removal of judges of a certain category from office. It is the combination of the CJN as both the chairman of the FJSC and the NJC that infringes the IMPARTIALITY CLAUSE contained in § 36 of the 1999 Constitution (as amended).

In my view, it is unconstitutional and a violation of the principles of natural justice for the CJN to be both the chairman of the FJSC and the NJC. This could have been avoided if the framers of the constitution had delegated some other judicial officer as chairman of the FJSC e.g. the deputy CJN i.e. the next ranking Supreme Court Justice as the chairman of the FJSC. However, because the NJC is an executive body, it would have been tidier if retired superior court justices, retired public officials, legal practitioners and laymen were appointed as chairmen and members of the FJSC and the NJC respectively, and given a term of years. It creates an inherent conflict of interest when serving judicial officers are chairmen and members of these executive bodies because it creates the appearance of bias under § 36 and is an inherent violation of the separation of powers principle contained in 1999 Constitution (as amended).

In other words, the COMPOSITION of the NJC and the FJSC is inherently defective and innately unconstitutional wherein the THIRD SCHEDULE Part 1 titled FEDERAL EXECUTIVE BODIES in (E) and (I) of the 1999 Constitution (as amended) named a sitting Honourable Chief Justice of Nigeria as the Chairman of both the NJC and the FJSC.

The provisions of § 36 states, inter alia, that

36.—(1) In the determination of his civil rights and obligations, including ANY QUESTION OR DETERMINATION BY OR AGAINST ANY GOVERNMENT OR AUTHORITY, a person (including a judge[7]) shall be entitled to a fair hearing within a reasonable time by a court or other tribunal (FJSC and the NJC[8]) established by law and CONSTITUTED IN SUCH MANNER AS TO SECURE ITS INDEPENDENCE AND IMPARTIALITY.

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Furthermore, the right to fair hearing as contained in § 36 is based upon the audi alteram patem principle whereas impartiality is based upon nemo judex in causa sua principle being the twin pillars of natural justice judicially observed by all civilized nations  of the world;

The NJC and the FJSC are EXECUTIVE BODIES within the ostensible purview and control of the EXECUTIVE BRANCH OF GOVERNMENT. The Honourable Chief Justice of Nigeria as the head of the JUDICIAL BRANCH OF GOVERNMENT should not simultaneously be a member of the EXECUTIVE BRANCH OF GOVERNMENT as this violates the separation of powers principle contained in § 5 and § 6 of the 1999 Constitution (as amended). When any provision of the 1999 Constitution (as amended) makes it impossible for the FJSC and the NJC to be independent and impartial, such provisions are void to the extent of their inconsistency with the INDEPENDENCE AND IMPARTIALITY CLAUSE of the 1999 Constitution (as amended); It also creates a conflict of interest and potential bias when the CJN has to adjudicate in matters in the Supreme Court of Nigeria that had been dealt with by him in his capacity as executive chairman of the FJSC and the NJC.

This is an inherent violation of the principle of natural justice that says a person shall not be both a prosecutor and a Judge in the same cause or matter. However, this is precisely what the 1999 Constitution (as amended) mandates. The ex officio position of the Honourable Chief Justice of Nigeria as the executive head of the NJC has made the Honourable Chief Justice of Nigeria both a prosecutor and a Judge in his own cause

However, it should be noted that appeals from the National Industrial Court of Nigeria in respect of employment matters to the Court of Appeal are final in that there is no appeal to the Supreme Court of Nigeria. Vide § 243(4) of the 1999 Constitution (as amended). This innovation is welcome in that it truncates the appeal process and prevents the CJN from being a Judge in his own cause. Justice must not only be done but MUST BE SEEN TO BE DONE is unattainable when INSTITUTIONAL BIAS is inherent and baked into the COMPOSITION of the NJC and the FJSC. By virtue of the presence of the Honourable Chief Justice of Nigeria, inter alia, in these EXECUTIVE BODIES as the directing force and controlling influence therein, the deliberations and decisions of the NJC and FJSC are inherently tainted with conflict of interest, bias and prejudice.

RECUSAL – CONSEQUENCE OF NEMO JUDEX

Whenever the question of bias occurs i.e. where the impartiality clause contained in § 36 is likely to be infringed, the proper course of action is for the Judge or body so tainted to recuse themselves from all the proceedings emanating from such bodies e.g. the FJSC, the NJC and the Supreme Court of Nigeria. If a sitting CJN continues to chair both the FJSC and the NJC, then all appeals emanating from these bodies would infringe on the IMPARTIALITY CLAUSE contained in § 36 based, inter alia on the principle of NEMO JUDEX IN CAUSA SUA. It would mean that the NJC as presently composed would be incapable of succeeding in any prosecution of any errant Judge because of the inherent defect in the composition of the NJC and the FJSC.

It would be necessary for the National Assembly to enact new legislation to recompose the FJSC and the NJC with people other than SERVING JUDICIAL OFFICERS in order to circumvent the contravention of § 36 (the IMPARTIALITY CLAUSE) and violation of § 5 and § 6 in relation to the SEPARATION OF POWERS principle contained therein. This would be necessary in order to allow the FJSC and the NJC function as executive bodies exclusively instead of its current hybrid[9] configuration which has inadvertently created permanent contradictions with provisions of the 1999 Constitution (as amended) related to fair hearing and impartial adjudication.

Matters arising

Recently, it came to light that the CJN was alleged to have left the country in order to meet with the President-Elect. Whether or not this allegation is true is beyond the scope of this presentation. However what it would mean is that the CJN is now, rightly or wrongly, tainted with the appearance of bias or prejudice in respect of an election matter that is likely to come before the Supreme Court of Nigeria. In such circumstances, the correct course of action would be for the CJN to recuse himself from all proceedings in any matter in which the President-Elect would be involved, and hand over proceedings relating to election petitions emanating from the February 25^th elections to the next ranking Supreme Court Justice. This is to preserve the integrity and reputation of the SCN so that whatever decision it eventually takes is not tainted by controversy. It is stated in the NJC enacted Code of Conduct for Judicial Officers that

“1.3 A Judicial Officer should respect and comply with the laws of the land and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary.

1.4 The Judge must be sensitive to the need to avoid contacts that may lead people to speculate that there is a special relationship between him and someone whom the Judge may be tempted to favour in some way in the course of his judicial duties.”

CONCLUSION & EXECUTIVE SUMMARY

As the constitution now stands, only the FJSC can initiate the removal of a certain category of judges from the public service by forwarding a recommendation to the NJC for further necessary action. Even where this procedure is followed, it would still be tainted by unconstitutionality because the CJN is the ex-officio chairman of both the FJSC and the NJC, thus violating the impartiality clause contained in § 36 of the 1999 Constitution (as amended). That in the absence of a recommendation from the FJSC to the NJC, requesting the removal of a Federal High Court Judge from office, the commencement of action against this category of judges by the NJC would be premature & unconstitutional. Vide Third Schedule part I, E of § 13(b);

• 4 & item 53 of the Exclusive Legislative List of the 1999 Constitution (as amended) vests the National Assembly with the exclusive authority to enact laws, rules, or regulations for all Executive Bodies where such Executive Bodies may require additional powers to carry out their functions. Vide Fifth Schedule and § 292 of the 1999 Constitution (as amended).

No inherent power exists on the part of the NJC to regulate or legislate any matter under the 1999 constitution, e.g. to create punishment or sanctions or to define actions by Judges, as misconduct, in the absence of an express right in the 1999 Constitution (as amended). Since the NJC is a creature of statute i.e. a creation of the 1999 Constitution (as amended), it can only exercise powers expressly granted to it by the 1999 Constitution (as amended). Since judges are already subject to the Code of Conduct Rules contained in the Fifth Schedule of the 1999 Constitution (as amended), and misconduct is therein defined, it is ultra vires for the NJC to have enacted a Code of Conduct for Judicial officers in 2016, and labelled a breach of its judicial code as misconduct.

Doubtless, the number of cases involving removal of judges from office has exposed the grave shortcomings of the 1999 Constitution (as amended) and the unconstitutional acquisition of powers by the NJC not granted to it by the 1999 Constitution (as amended) or the National Assembly. Judges in general need to be warned of their rights not to answer unsubstantiated petitions from the NJC. The NJC must first present the Judge with prima facie proof of wrongdoing before the Judge is required to answer a petition that alleges wrongdoing. In addition, it must be strongly noted that a petition is not proof of wrongdoing, but merely a series of unproved allegations made by a petitioner. The NJC should know that it cannot use unsubstantiated petitions of disgruntled persons to short-circuit the judicial process and to disrupt the workings of the judiciary. There must be independent and separate evidence to substantiate the allegations. In such cases the correct course of action is to appeal against the decision of a Judge to the next higher court and not to petition against the Judge acting in a judicial and official capacity to the NJC. The NJC has a duty to protect Judges from such baseless attacks, not to seize the opportunity to crucify them. In cases where a Judge is truly found wanting, on the basis of sustainable evidence, the NJC has every right to take the necessary disciplinary action[10] against such an errant Judge.

Action needs to be taken by the National Assembly to rectify the double chairmanship of both the FJSC and the NJC by the CJN as this is at odds with principle of natural justice enshrined in nemo judex and § 36 of the 1999 Constitution (as amended). Where nemo judex exists the correct course of action for the Judge or judges affected is to be recused from any participation in the proceedings, otherwise those proceedings would be tainted by unconstitutionality.

Furthermore, for the same reason i.e. nemo judex, there is a need to change the composition of both the FJSC and the NJC from serving judicial officers to retired public servants etc. e.g. a retired superior court judge appointed chairman for the NJC for a term of years. The same would apply to the FJSC. As currently composed, the FJSC and the NJC are incapable of carrying out the functions intended by the 1999 Constitution (as amended) without violating the constitutional rights of judges to fair and impartial disciplinary proceedings that could result in their removal from office.

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[1] CJN

[2] NJC

[3] FJSC

[4] The NJC thought it had authority to ignore this provision. However all constitutional provisions as it relates to the NJC must be observed to the letter. There is no choice in the matter

[5] This provision appears not to apply to state high court judges or to judges of the FCT

[6] The definition and examples of corruption can be found in many laws in Nigeria e.g. The Corrupt Practices and Other Related Offences Act 2003 etc.

[7] My addition

[8] My addition

[9] Judicial officers serving in an Executive body

[10] In accordance with the Constitution and not on rules manufactured by the NJC