Justice-Nigeria - By mishandling what ordinarily should have been purely an administrative matter, Their 'Eminent Lordships' Justices Aloysius Katsina-Alu and Ayo Salami, respectively Chief Justice of Nigeria and President of the Court of Appeal, have confirmed what not a few Nigerians have suspected for several years: That the judiciary is not the bastion of equity and justice, at least, not for those without the means to procure judgements that reverse the ills of the society.

The current dispensation, in which conflicting, mind-boggling judicial pronouncements on electoral and criminal cases, especially those pertaining to ex-political office holders, and matters arising from civil disputes, is an indication that the judiciary has suffered a complete derailment. Accordingly, like any Nigerian who has followed the case between Katsina-Alu Vs Salami unravel in the last week, I have read with increasing curiosity the arguments marshaled out quite eloquently and forcefully on the lack of propriety in the surreptitious attempt to elevate Salami to the highest court of the land.

The recurring message in most of the commentary was that it was unprecedented in the history of the Nigerian judiciary. Fortunately, my colleague, Yusuph Olaniyonu, who is also a lawyer, in his column last week further buttressed the position when he drew our attention to Section 292, Sub-section (1) (a) (i) of the Nigerian Constitution, which specifies under what circumstances a judicial officer can be removed from office.

Still, what I found missing in all the positions was if an issue is without precedent and an attempt is made to alter what has been deemed a tradition, does that make it illegal or wrong? A follow up to that is did Justice Katsina-Alu in his attempt to recommend the elevation of Justice Salami, covertly or overtly, act within his rights as the Chief Justice of Nigeria and chairman of the Federal Judicial Service Commission and the National Judicial Council, as specified under the Third Schedule, Part I of the same Nigerian Constitution? Does the constitution therefore, notwithstanding the provisions contained in Section 292, confer on some judicial officers, exemption from elevation to other courts of the land?

According to Yusuph, whom I engaged on this matter for much of the weekend, a conflict between the Third Schedule and Section 292 of the constitution does not arise, because Section 292 is crystal clear that certain judicial officers cannot be removed except in cases of inability to discharge their functions or for misconduct or contravention of the code of conduct. That being the case, could this matter not have been resolved in a more decorous manner as was expected of Their Lordships?

Seeing that they decided to throw caution to the wind in the way they both went about what was an innocuous administrative dispute, Kasina-Alu and Salami have by omission and commission opened a can of worms that cannot be dismissed with the wave of the hand. In my estimation, their continued stay as the Chief Justice of the Supreme Court and President of the Court of Appeal has become untenable, as they have brought untold embarrassment to an institution that should be above board and should be the hallmark of conservatism.

Though some may hold the view that Salami could not have dished out the dirt on Katsina-Alu if he (Salami) had something to hide, the point they miss is that the President of the Court of Appeal should not have waited till he felt he was being 'victimized' to spill the beans. As a justice of the Court of Appeal and member of all the key judicial bodies, Salami had a fiduciary duty to expose from the onset what had transpired in the Sokoto governorship trial, especially after the Supreme Court glaringly over stepped its boundaries and became involved in a matter over which it had no jurisdiction. By his silence, justice may have been denied Mohammadu Dingyadi and his party, the Democratic Peoples Party. That he waited this long is inexcusable.

Sadly, the National Judicial Council, which has the power to discipline and remove erring judges and should have recused Katsina-Alu and Salami and set up a panel to investigate the allegations made by the accused and the accuser, has elected to look the other way. Instead, it has constituted a useless elders' committee to reconcile the warring 'Lordships' in the hope that Justice Salami would withdraw the case against Katsina-Alu and other parties to the suit filed challenging his promotion. That is not good enough.

In case the NJC does not know, the council is not made up of unlearned village elders. It comprises learned jurists and lawyers with several years of collective experience at the bench and bar between them, or so we are told. Similarly, it would be quite injudicious for anyone to explain away the revelations of the last couple of days to the power grab between the ruling Peoples Democratic Party and the opposition Action Congress of Nigeria. The allegations that have been brought to light are too grave to be compartmentalised and go to the core of our democracy and the rule of law. Under the circumstances, what was expected of the council was to suspend both justices and investigate the motives behind their utterances, actions and inactions, stretching back to the last one year and more.

But then again, I may have been expecting too much of the NJC. More than two-thirds of the council, a friend of mine who is a lawyer pointed out last week, is made up of members who owe their appointments to the CJN. Given the conflicting interests that would arise from any panel constituted by the NJC, then the Minister of Justice and Attorney General of the Federation, Mohammed Adoke, would have to dig deep and explore all available options that could lead to the empanelment of an independent body to scrutinise all the issues that have been thrown up in the last one week and make recommendations that would be binding on all parties.

Not stopping at that, as part of the terms of reference of the panel, it should also be instructed to revisit the recommendations made by the Justice Kayode Eso Panel on Judicial Reforms in 1996. As far back as fifteen years ago, Justice Eso envisaged a situation where a key officer of the judiciary would one day be accused of professional misconduct. He therefore recommended the transfer of certain powers presently resident with the NJC to a Judicial Performance Commission that is not presided over by the Chief Justice of Nigeria and will be responsible for all disciplinary matters concerning members of the bench.

Without doubt, the underbelly of the judiciary has been exposed like never before. Their "Lordships' Justices Katsina-Alu and Salami have brought to the surface what was once only discussed in hushed tones and made as unsubstantiated claims. The onus is now on the same judiciary to devise corrective mechanisms to flush out the bad apples in the system and institute measures that can check abuses that have become widespread. A first step is to set an example with the Chief Justice of Nigeria and the President of the Court of Appeal. Since they let their egos get the better of them and were foolish enough to expose their flanks, then they should be made to pay the ultimate price if found wanting.

It is only when such drastic punitive measures are taken that other judges would begin to understand that it is no longer business as usual. It is only then that judges would begin to realise that when individuals and organizations come before them, the law should be used as an instrument of protection and from where people can get redress, and not one where the law is used as weapon of indiscriminate pronouncements skewed in favour of the highest bidder.

Right now, any iota of confidence that the public once reposed in the judiciary has been torn to shreds. As such, this is not a time to play the ostrich. For the sake of our democracy and rule of law, the time to fix our judiciary is now.

This Day/14/02/2011