NJC’s Revised Judicial Discipline Regulations Will Strain Fight Against Corruption in the Judiciary

The National Judicial Council (NJC) recently published a revised Judicial Discipline Regulations. The regulations instate new rules governing the reception and consideration of complaints against judges. The revised rules are aimed at curtailing frivolous petitions against judges and prevent judges from being distracted by vexatious and baseless allegations against them.

As justice advocates, we welcome reforms that strengthen the integrity of the judiciary/the justice system and protects the independence of the Judiciary. However, the new regulations will not strengthen the integrity of the judiciary neither will it protect its independence. On the contrary, the new Rules will strain or hurt the fight against corruption and other misconduct in the administration of justice. We urge the NJC to revisit the new Rules again and remove provisions which fetter the right and ability of citizens to make bona fide representations to the Council which the Council will act on, and provisions which limit the Council’s own power to tackle misconduct and corruption and those who engage in or profit from it.

1. Regulation on Time Limits is Overly Intrusive

Rule 1(1) of the revised regulations states: “A complaint must be made within six months of the event or matter complained of, provided a complaint relating to a continuing state of affairs may be made at any time while the state of affairs continues or within six months from when it ends”

This regulation ensures that complaints can only be brought to the Council during the time when a misconduct is alleged to be taking place or within six months after it ends. Any allegations brought after this window will be dismissed unless by virtue of Rule 5 of the regulation, the Chief Justice of Nigeria exercises a discretion to allow the admission of the complaint. A complainant may also appeal a decision not to extend time to the Council.

In many instances, cases of misconduct, particularly those concerning corruption occurring in the course of a judicial adjudication are only known after the fact, and there is usually no timeline for coming to this knowledge. In most cases, the corrupt conduct of a judicial officer may only become public knowledge following a careless slip or from the irrepressible work of investigative reporters. Whenever the facts become known, let due process follow! There should be no statute 0f limitations applicable to judicial corruption or misconduct. Insisting that complaints made after 6 months will only be considered at the discretion of the NJC Chairman or after an appeal to the Council creates unnecessary hurdles for complainants and real dangers that such complaints will go uninvestigated if complainants lack the ability or knowledge to sustain a bi-furcated appeal over the rejection of the complaint. Our fight against corruption in the administration of justice ought to run a freer course.

2. The Requirement of a Verifying Affidavit is Wrong Foot Forward

Rule 4(5) of the regulation requires that the complaint be “accompanied by a verifying affidavit deposed before a court of record”.

The imposition of a verifying affidavit requirement on every complaint could possibly discourage the making of frivolous, malicious and unfounded allegations against judges; however this must be considered against other compelling needs. A verifying affidavit, in our opinion, stretches the responsibility for credibility a little too far and technicalizes what ought to be simple, accessible and straightforward procedure or action for two major reasons: first, many otherwise valid complaints may be made by people who lack information of the technical requirements now being imposed by the Council. If aggrieved people make credible complaints against judges and these complaints are peremptorily discountenanced because they have not complied with a stated procedure or because they lack some formality, the Judiciary deprives itself of fair and early warning that a person of questionable integrity may be in its midst. This will not do justice to the complainant, to the cause of justice, nor, too, to the Judiciary and society.

Second, some complainants, out of concern for the integrity of the justice system may simply want to alert the NJC about the suspicious profile or behavior of a judicial officer that may be suggestive of inappropriate conduct. These sorts of interventions are not adversarial in nature and these kinds of alerts may require further investigation by another agency. All such a “complainant” may want is for the NJC to become aware of a potential problem and take things from that point forward by conducting its own inquiries or referring the matter to another agency that can do so. This will often be the approach many anonymous informants will choose. The NJC has, in the past, referred complaints or allegations to other security agencies for investigations. It did so in the complaints brought against Justice Ayo Salami, former President of the Court of Appeal; Justice Naron Thomas, former Judge of Plateau State and the Osun State election Tribunal and Justice former Chief Judge of Akwa Ibom State, Justice Idiong. So, even in the experience of the NJC, unverified allegations have, in the past, ultimately led to the substantiation of allegations against Judges and formed the basis of disciplinary action against some Judges. The NJC must show stronger justification for delegitimizing procedures that have produced positive results for it in the past.

Insisting that whistle-blowers or informants must verify the “truth of the facts alleged” can act as a strong disincentive to whistle-blowers or informants (who already run risks for leaking relevant information) to come forward with that disclosure. Effective complaint systems encourage, and not stifle feedbacks or complaints even when offered anonymously. The NJC Rule could be likened to asking a police informant or complainant who has suspicions about another person’s guilt concerning a crime to verify with an affidavit the truth of his/her suspicion that the suspect may have committed the crime before the police can investigate the allegations or information.

Furthermore, whether or not a complaint is “verified” by an affidavit does not diminish or increase the burden of investigation required to be undertaken, or the relevant standard for substantiating allegations of misconduct against anyone by the NJC. Therefore, irrespective of the presence, absence or strength of a “verifying affidavit” the NJC must still provide a fair, thorough and impartial hearing of the complaint. So the verifying affidavit has absolutely no fair hearing value in relation to the determination of a complaint.

Lastly, the rule itself can appear ambiguous or confusing as to its meaning to many people. Rule 4(7) provides that the complainant must verify “… the truth of the facts alleged” in the affidavit. In this context, the “truth” could possibly be interpreted by many people to mean the truth of the misconduct alleged. If someone saw a Governor’s aide unload jute bags into a car of an election Judge who was hearing a petition against the election of the Governor, that person might interpret the rule as requiring that s/he verifies, in an affidavit, that corruption has taken place, and not just that s/he saw what happened. This could possibly weigh against an intervention by him or her. Here, it is the subjective, but reasonable extrapolation of the rule by an individual that is of importance, not whether the person is legally mistaken on the construction. In fairness, the NJC must concede that the rule is possible to misconstrue even by people with reasonable literacy levels. In any event, it should be said that the duty to investigate, verify and substantiate a complaint in relation to a crime is the responsibility of the police, in the same way it is the responsibility of a disciplinary body like the NJC and not the complainant to investigate and substantiate a complaint. There is no legal justification for pushing that duty to the complainant.

Conclusion We understand that the NJC, by these Guidelines, wants to safeguard against unnecessary petitions but that objective can be achieved without encumbering the accessibility of the NJC’s complaint process with unnecessary legalisms.

The NJC can curtail the making of frivolous complaints by providing a general warning that makers of mischievous allegations may face prosecution for interference with the administration of justice and then liaising with law enforcement agencies to enforce the existing laws against the administration of justice in manifest cases of bad faith and smear campaigns against Judges.

While we will support efforts to reduce inordinate pressures on time and concentration of judges, we urge that judicial integrity should not be sacrificed for technicalities of form and time. The primary concern should be seeking ways to eradicate corruption within the judiciary and not limiting the channels of exposing it.

Co-written by:

Joseph Otteh                                 Chinelo Chinweze
Executive Director                          Both work with Access to Justice