Bounds of judicial office

Featured in The Guardian Newspaper 05 October 2015

There has been a persistent debate concerning the accepted limits of judicial officers in their social relations whilst in office. The pivotal role judicial officers play in the maintenance of freedom, peace, order and good government in the society has necessitated this raging debate, aimed at guaranteeing the independence, respect and impartiality of the judiciary. The interest of many in this subject is not misplaced, considering the legions of powers wielded by these judicial officers. They obviously hold the scales of life and death, liberty and jail, loss and gain et cetera.

There is however a penumbra of uncertainties as to what the accepted limits of judicial officers are in the social sphere. The ‘principles’ and ‘rules’ in this regard are largely undefined, sometimes unwritten or not available in a single document. For example, book launch in honour of serving judges was not clearly prohibited in the current Code of Conduct for Judicial Officers (“the Code”) adopted in 2000 under the leadership of Hon. Chief Justice of Nigeria, M.L. Uwais (Rtd.). Many serving judge cashed in on this lacuna to benefit from book launch held in their names. Many lawyers (including those having cases before these judges) donated money in such book launch for obvious reasons. It was not clear then whether the judges involved in the book launch crossed their bounds until the National Judicial Council (NJC) issued a directive barring serving judges from such enterprise. It is noteworthy that no judge was reported to have been disciplined for partaking in the so many a book launch before the NJC’s directive banning same.

The above cited example exposed the inadequacy of the current Code in setting the limits for judicial officers. It is regrettable that the Code is yet to be updated to incorporate the newly defined restriction contained in the said Directive. The petition written by the serving High Court of Osun State, Justice Olamide Folahanmi Oloyede callng for the impeachment of Governor Rauf Aregbesola and his deputy, Titi Laoye has again put the current Code to test. The issue posed by the Honourable Justice’s conduct is yet unresolved as it is unclear whether the Judge has crossed the limits. The uncertainties in the current Code regarding that particular conduct informed the many divergent opinions on the matter.

Before adding my humble view to the catalogue of opinions on the matter, it is imperative to shed light on the difference between “disciplinary rules” and “ethical principles”. The United Nations Office on Drugs and Crime’s Judicial Training Manual for Nigerian Judiciary is instructive in this respect. The distinction is very important because, the many opinions on the matter seemed to have viewed the Judge’s conduct with the lenses of “disciplinary rules” only. The Code, for example, is a collection of disciplinary rules. The Code emphasised its disciplinary nature in the explanation section, provision (iii) which states that “violation of any of this rules contained in this Code shall constitute judicial misconduct or misbehavior and may entail disciplinary action” The Bangalore Principles of Judicial Conduct 2002, which have become the international model for professional ethics for judges, are clear examples of ethical principles

The violation of a disciplinary rule may constitute misconduct or misbehaviour and may entail disciplinary action. Ethical principles are, on the other hand, self-regulatory standards of conduct. Failure to observe ethical principles does not of itself constitute either misconduct or misbehaviour. I believe the Judge’s conduct can only be fairly viewed within the precincts of ethical principles. The judge’s conduct can be regarded as an ‘ethical risk’, the sort a lawyer who chooses to give evidence in a case he is also Counsel takes. The lawyer taking such risk breaches no known disciplinary rule but is seen as violating an ethical principle which makes it untidy for a legal Practitioner to appear as Counsel and a witness in the same case- this ethical principle was echoed in the popular case of Horn v. Richards [1963] 2 All NLR 40. Justice Oloyede, in my considered view, took a similar ‘ethical risk’. I agree, for good reasons, that it is untidy for a judge to author such petition as the consequences may erode the judge’s immunity and privilege.

The Honourable Judge was reported to have called on the Osun State House of Assembly to investigate the alleged mismanagement of the State’s financial resources in accordance with Sections 128 and 129 of the 1999 Constitution (as altered), one likely consequence is for the Osun State House of Assembly to exercise its power under Section 129 (d) of the 1999 Constitution by summoning the Judge to give evidence at any place or produce document or other thing in her possession or under her control, and examine her as a witness in order to test the veracity of her petition against the Governor. It will then be difficult to decline the summons as the Honourable Judge would have been deemed to have waived her privilege and immunity. The imagined drama of a serving judge being summoned by a House of Assembly is unsavoury, to say the least.

What then is the solution for aggrieved judges whose decision is abstinence from taking ‘ethical risks’? Should they groan in silence?! I think this is where the Bar comes in. The Bar should be an effective mouthpiece of the Bench. Social activism is best suited for those standing. It a crusade better left for the Bar. ‘Aluta’ songs are not sung in a sitting posture. A judge sits on the Bench whilst the lawyer’s place is standing. The revered Justice Oputa once described a Judge as a barrister who is invited to sit on the bench when he has had a lot of standing at the Bar. The grievances of judicial officers concerning their welfare and other matters that will guarantee their independence can only practically be fought for by the Bar and Civil Societies. The Bar and the Bench must complement themselves to entrench a virile system of justice that will enthrone the much desired rule of law in Nigeria. There is also an urgent need for the review of the current Code and drawing up of Statement of ethical principles for judicial officers. The Statement of ethical principles, as discussed, should be merely advisory.

About the Author

Rafiu Bello has a broad experience in diverse areas of law and adequate experience in both litigation and corporate commercial practice. He contributes articles for  renowned newspapers like The Guardian and The Punch on topical legal issues.