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The role of the judiciary in combating corruption: aiding and inhibiting factors in Nigeria

2014; Taylor & Francis; Volume: 40; Issue: 4 Linguagem: Inglês

10.1080/03050718.2014.973894

1750-5976

Fola Adeleke, Oluseyi Olayanju,

Corruption and Economic Development

AbstractBased on empirical facts and research in socio-economic fields, it is consensually agreed among scholars that corruption is one of the greatest hindrances to the development of any country. As part of the efforts to combat the menace of corruption, laws and institutions have been put in place. Consequently, judges, by virtue of their position in society, have an important role to play to ensure the effectiveness of those laws and institutions. However, the Nigerian judiciary has failed to live up to its responsibility in its role of combating corruption in the country and is even itself accused of corruption. This article discusses the factors that are necessary to assist in building an effective, vibrant and corruption-free judiciary. Salient factors that hinder the judiciary in the performance of its role to combat corruption are highlighted. The article finally suggests the need to reform Nigeria’s judicial sector and to set in motion all the machinery necessary for the purpose of creating a formidable judiciary in the country. Notes1 A wide sweeping definition of corruption is provided by Macrae as the arrangement that involves an exchange between two parties which: (1) has an influence on the allocation of resources either immediately or in future; and (2) involves the use or abuse of public or collective responsibility for private ends. Transparency International defines corruption as the misuse of public power for private benefit such as bribing of public officials, kickbacks on public procurement or embezzlement of public funds. See generally the following authors: J Macrae, ‘Underdevelopment and the Economics of Corruption: A Game Theory Approach’ (1982) 10(8) WD 677; Jing Runtian, Zhang Gaoliang, Teng Tianli, ‘News on Corruption in the Wall Street Journal and the Corruption Perception Index’ (2006) 9(1) JCIM 36.2 P Mauro, ‘The Effects of Corruption on Growth, Investment and Public Expenditure’ (1996) IMF Working Paper.3 Lilia Carasciuc, ‘Corruption and Quality of Governance: The Case of Moldova’. SSRN: or < http://dx.doi.org/10.2139/ssrn.269626 >.4 See, Justice MMA Akanbi, ‘The Challenges and Prospects of Anti-Corruption Crusade’ in Yemi Akinseye-George and Gbolahan Gbadamosi (eds), The Pursuit of Justice and Development: Essay in Honour of Hon Justice M Omotayo Onalaja (Lagos, Diamond Publications Ltd 2004), 118 at 120. See also, Sonia Akinbiyi, Ethics of the Legal Profession in Nigeria (Ogun State, Augustus Publication 2003), 204.5 The Convention was adopted by the United Nations General Assembly resolution 58/4 of 31 October 2003. Nigeria signed the Convention on 9 December 2003 and ratified it on 14 December 2004.6 Nigeria signed on 16 December 2003 and ratified on 26 September 2006.7 It was adopted in Maputo in July 2003.8 See Article 1 of the African Union Convention on Preventing and Combating Corruption.9 See the Preamble to the United Nations Convention against Corruption 2003.10 Criminal Code Act, Cap C38, Laws of the Federation of Nigeria, 2004, Penal Code of Northern Nigeria.11 See generally, ss 98–111, in particular, ss 98, 98A, 98B, and 99 of the Criminal Code Act 2004.12 The Corrupt Practices and Other Related Offences Act, No 6 of 2003. This Act aims at prohibiting and prescribing punishment for corrupt practices and other related offences, and to establish an Anti-Corruption Commission.13 See the comprehensive list of various laws on corruption in the paper titled ‘Combating Corruption in Nigeria, the Role of Judiciary’ delivered by Bazuaye et al. of the Faculty of Law of the University of Benin (National Association of Law Teachers Conference, University of Ilorin 22–25 April 2013) 1–3.14 Justice MMA Akanbi (n 5) 122. According to Justice Akanbi, as of 2004, not less than 518 cases had been processed for investigation, 287 cases investigated, with some being cases of governors. He further stated that a number of local government chairmen had been investigated, 17 cases being in court at the time, and in all, 39 accused persons were facing different charges of corruption in courts.15 Alao Aka-Basorun, ‘The Supreme Court and the Challenges of the 90s’ in Akinseye-George (ed), Law, Justice and Stability in Nigeria: Essays in Honour of Justice Kayode Eso (Shalom Multiserve Bureau 1993) 113.16 See S 47 (1) of the Act.17 See S 26 (2) of the Act.18 Note that the definition of corruption as covered by the African Union Convention on Preventing and Combating Corruption is closely related and similar to the local legislative enactments in Nigeria. The coverage is broad enough to accommodate all the local enactments so far promulgated in Nigeria.19 See Declaration A/RES/40/32 of November 1985.20 Denton-West v Muoma (2008) 6 NWLR (pt 1083), 418, 451–52.21 Per Saulman JCA.22 Randall Peerenboom, ‘Judicial Independence in China: Common Myths and Unfounded Assumptions’ (LaTrobe Law School Legal Studies Research Paper No 2008/11) 3.23 See, eg Peter H Russell and David M O’Brien (eds), Judicial Independence in the Age of Democracy: Critical Perspectives from Around the World (Charlottesville, VA, Univ of Virginia Press 2001).24 Ibid.25 It has been defined as the ability of courts and judges to perform their duties free of influence or control by other actors. See David S Law, ‘Judicial Independence’ in Bertrand Badie, Dirk Berg-Schlosser and Leonardo Morlino (eds), The International Encyclopedia of Political Science. (Sage Publications 2011). An independent judiciary is also defined as one in which judges enjoy tenure during good behaviour, a salary sufficient to shield them from pressure from either government or private parties, sufficient prestige that the hope of promotion to a more prominent post is not a large motivator, a system of perquisites that is hard for the government to manipulate, and rules regarding jurisdiction over cases that are resistant to executive and legislative meddling, among others. See Daniel M Klerman and Paul G Mahoney, ‘The Value of Judicial Independence: Evidence from Eighteenth Century England’ (2005) 7 AmLEeconRev 1, 2–3.26 Theodore L Becker, Comparative Judicial Politics: The Political Functioning of Courts (New York, Rand McNally 1970).27 As Montesquieu rightly noted, the separation of powers between the judicial and executive branches is far more important than any separation between the legislative and executive branches – the only check on the executive branch is a resolute judiciary through which any ordinary citizen can protect his or her civil rights. See Charles de Secondat, Baron de Montesquieu, The Spirit of Laws, Great Books in Philosophy (Amherst, NY, Prometheus Books 2002).28 Standing Committee on Judicial Independence, American Bar Association, Report of the Commission on Public Financing of Judicial Campaigns (July 2001) (quoting Justice Anthony Kennedy of United States Supreme Court Speech at the ABA Symposium on Judicial Independence), available at < http://news.findlaw.com/hdocs/docs/aba/abajudfinrpt072001.pdf > accessed 15 April 2013.29 Sherrilyn Ifill, ‘Racial Diversity on the Bench: Beyond Role Models and Public Confidence’ (2000) 57 WLLR 405, 469.30 It is the subject of a number of international instruments such as UN Basic Principles on the independence of the judiciary (1985), Universal Charter of the Judge (1998), IFES Regional Best Practices: A Model Framework for a State of the Judiciary Report for the Americas (2003) which have been described by Randall Peerenboom, above.31 Ss 231, 238, 250 and 271 of the 1999 Constitution of the Federal Republic of Nigeria.32 The cases are (1) SP Gupta v Union of India AIR (1982) SC 149, (2) Supreme Court Advocates on Record Association v Union of India AIR (1994) SC 268, (3) In re: Special reference 1 of 1998 AIR (1999) SC 1. Over the course of the three cases, India’s principle of judicial independence was interpreted to mean that no other branch of government had the power to interfere in the appointment of judges. The court then created the collegium system which has been criticised as having no constitutional basis.33 Abhinav Chandrachud, ‘The Insulation of India’s Constitutional judiciary’ Economic and Political Weekly (27 March 2010, vol XLV, No 13).34 See, J Venkatesan, ‘Cabinet clears constitutional status for judicial appointments Commission’ The Hindu (26 December 2013). accessed 6 February 2014.35 124(2) provides that ‘Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted’.36 Article 217(1) provides that ‘Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years’.37 Article 222(1) provides that ‘The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court’.38 According to the Bill, Article 124 (A) will create the commission while Article 124 (B) will define its functions.39 Eli M Salzberger, ‘Judicial Appointments and Promotions in Israel – Constitution, Law and Politics’ in Kate Malleson and Peter Russell (eds), Appointing Judges in the Age of Judicial Power: Critical Perspectives (Toronto University Press 2005).40 Justice Pius Olayiwola Aderemi, ‘The Role of a Judge in the Administration of Justice in Nigeria’ in JA Yakubu (ed), Administration of Justice in Nigeria: Essays in Honour of Hon Justice Muhammed Lawal Uwais (Lagos, Nigeria, Malthouse Press Limited 2000), 79, 81.41 An equivalent of about US$ 900.42 An equivalent of about US$ 1800.43 An equivalent of about US$ 2700.44 James Andrew Wynn and Eli Paul Jr Mazur, ‘Judicial Diversity: Where Independence and Accountability Meet’ (2004) 67 ALR, 775.45 [2012] 2 NWLR (pt 1284), 329.46 Toriola Oyewo, The Trial Judge and His Guides in Nigeria (Nigeria, Jator Publishing Company 1999) 27.47 See, Taiwo Osipitan, ‘Safeguarding Judicial Independence Under the 1999 Constitution’ in Yemi Akinseye-George and Gbolahan Gbadamosi (eds), The Pursuit of Justice and Development: Essay in Honour of Hon Justice M Omotayo Onalaja (Lagos, Nigeria, Diamond Publications Ltd 2004) 10, 14.48 [2012] 7 NWLR (pt 1300) 417.49 (1962) 369 US 186.50 Referenced in Tayo Oyetibo, ‘The Role of the Judiciary in Combating Corruption in Nigeria’, being a paper presented at the Serap Media Roundtable on Magistrate Courts Ethics, Integrity, and Improving Citizens’ Access to Justice (Premium Times, 26 September 2012). .51 Discussions on corruption frequently include offences that have received comparatively recent attention such as money laundering and drug and human trafficking.52 The inapplicability and obsolescence of s 419 of the Criminal Code of Nigeria to advanced modes of fraud led to the promulgation of EFCC Act Cap E1 LFN 2004.53 Black’s Law Dictionary (6 edn, St Paul, Minnesota West Publishing Co 1990) 1152.54 S 13 (2) of the EFCC Act is instructive as the authority by which the EFCC resorted to plea bargaining. It provides:Subject to the provision of section 174 of the constitution of the Federal Republic of Nigeria 1999 (which relates to the power of the Attorney General of the Federation to institute, continue or discontinue criminal proceedings against any persons in any court of law), the Commission may compound any offence punishable under this Act by accepting such sums of money as it thinks fit not exceeding the maximum amount of fine to which that person would have been liable if he had been convicted of that offence.Unlike the controversially interpreted provision of the EFCC Act, The Lagos State Administration of Criminal Justice Law is explicit and provides for plea bargaining in ss 75 and 76. Reproduced below are relevant portions of the sections.S 75 – Notwithstanding anything in this law or in any other law, the Attorney General of the State shall have power to consider and accept a plea bargain from a person charged with any offence where the Attorney General is of the view that the acceptance of such plea bargain is in the public interest, the interest of justice and the need to prevent abuse of legal process.55 See generally s 76 of the Administration of Criminal Justice Law of Lagos State 2011.56 See Oluseyi Olayanju, ‘The Relevance of Plea bargaining in the Administration of Justice System in Nigeria’ (2001–2012) 8(2&3) LASU LJ.57 Ibid. Echoing the same sentiment, Justice Kayode Eso also remarked,. ‘They bargain with the judges; they bargain with the accused person; then, they tell him, refund half of the money, go and serve three months in prison and the three months will, of course, be in the hospital’ Sunday Vanguard (23 October 2011) 5.58 Olayanju Oluseyi (n 48).59 Notable among such enactments which have been designed to stem out corruption from every fabric of national life and public offices are: Advanced Fee Fraud and Other Related Offences Decree 1995, The Corrupt Practices and Other Related offences Act 2003, Economic and Financial Crimes Commission Act 2004, Criminal Code Act Cap 77 Laws of the Federation of Nigeria 1990.60 One of the most considered of these powers is the provision of the power to prosecute cases granted to the Attorney General under section 174 of the 1999 constitution. (1) The Attorney General of the Federation shall have power: (a) To institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly;. (b) To take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and (c) To discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person. (2) The powers conferred upon the Attorney-General of the Federation under subsection (1) of this section may be exercised by him in person of through officers of his department. (3) In exercising his powers under this section the Attorney-General shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.61 See FAR Adeleke, ‘Leadership, Good Governance and Human Rights Issues In Nigeria’ in Usmanu Dan Fodiyo (ed), Legal Prisms – Direction in Nigerian Law and Practice (Faculty of Law, University of Sokoto 2012) 355.62 (2008) 14 NWLR (pt 1106) 72, 81–82.63 Ibid., 82.64 (1987)1 NWLR (pt 51) 475.65 Ibid., 573.66 Ibid., 574. See also the decision in Layiwola & 3 Ors v The Queen (1959) 4 FSC 109, 119–120, where Abbot, Ag C&F states: It is without question the province of Law officers of the Crown (in this case the Director of Public Prosecutions) to decide in the light of what the public interest requires in any particular case, who shall be charged and with what offence. It is entirely a matter for this officer’s quasi judicial discretion and, in our view, in order to secure the proper administration of justice, he must be left to exercise this discretion according to his own judgement.67 (1983)1 SC NLR 94. See also Nwankwo v State (1985) 6 NCLR 228, 239.68 FAR Adeleke (n 46) 356.69 Referenced in Tayo Oyetibo, ‘The Role of the Judiciary in Combating Corruption in Nigeria’ Premium Times (26 September 2012).70 Ibid.71 Ibid.72 Lord Denning, The Road to Justice (London, Stevens & Sons Ltd 1995), 30–32, quoted in Taiwo Osipitan, ‘Safeguarding Judicial Independence Under the 1999 Constitution’ in Yemi Akinseye-George and Gbolahan Gbadamosi (eds), The Pursuit of Justice and Development: Essay in Honour of Hon Justice M Omotayo Onalaja (Lagos, Nigeria, Diamond Publications Ltd June 2004) 10, 15.73 (1924) 1 KB. 256.74 Ibid., 259.75 (1990) 2 NWLR (pt 278) 670.76 S 17(1)(e) of the Constitution of the Federal Republic of Nigeria, 1999.