The petition written by a sitting judge of the Osun State High Court seeking the probe of the state governor, Rauf Aregbesola, for financial impropriety raises ethical questions, RAMON OLADIMEJI writes

The inability of the Osun State Governor, Rauf Aregbesola, to pay workers’ salaries for months eroded whatever goodwill his administration had enjoyed from civil servants in the state. One of the first signs that things were no longer at ease was that Aregbesola abandoned his popular habit of singing and dancing in public, in mockery of the opposition, as labour unrest, protests and industrial actions became the order of the day. But the crisis assumed what many described as an unprecedented height when a sitting judge of the state high court, Justice Folahanmi Oloyede, wrote to the state House of Assembly, calling for the probe and possible impeachment of the governor and his deputy for alleged financial impropriety. Some stakeholders in the judiciary viewed the judge’s action as a betrayal of the code of neutrality to political affairs, which all judges are expected to maintain.

The tone of Justice Oloyede’s petition, which the House confirmed to have received on June 30, 2015, seemed like an outburst of a mind with pent-up concerns.

The concerns of the judge may be appreciated if donation of food items to workers in the state by charitable organisations, including a church, and the reported inability of some to pay house rents, were a reflection of the hardships that workers were facing in the state over unpaid salaries.

In her petition, the judge, among other things, accused Aregbesola and his deputy, Mrs. Titilayo Laoye-Tomori, of embarking on wrong policies which, she said, plunged the state into financial crisis, saying they did not deserve to still remain in public office for the alleged mess that they had created.

“Their action in this respect is as illegal as it is immoral and unconscionable. It is an evidence of their inability to discharge the functions of their offices. There is therefore no legal or moral basis for their continued stay in office,” Oloyede’s petition read in part.

For some stakeholders in the judiciary, no matter what the intention of the judge might be, once she had written that petition, she had descended into the arena of politics, which, according to them, conflicted with the provisions of the Federal Republic of Nigeria Code of Conduct for Judicial Officers.

The Federal Republic of Nigeria Code of Conduct for Judicial Officers stated, in its preamble, that “the judicial duties of a judicial officer, which include all duties of the office prescribed by law, take precedence over all his other activities.”

This code of conduct forbids any sitting judge from subscribing to “any form of social relationships that are improper or give rise to an appearance of impropriety that casts doubts on the judicial officer’s ability to decide cases impartially or that brings disrepute to the judiciary.”

It also makes it a sin for any judicial officer to have reliable evidence of misconduct against another judicial officer or a legal practitioner and not report same to the appropriate disciplinary body.

However, under its Rule 3, the code of conduct preserves the constitutional right of a judge to freedom of expression, stating that “a judicial officer is like other citizens entitled to freedom of expression, belief, association and assembly, provided, however, that in exercising such rights, he shall always conduct himself in a manner as to preserve the dignity of his office and the impartiality and independence of the judiciary.”

To Aregbesola’s political party, the All Progressives Congress, Justice Oloyede had constituted herself into a tool, for a hatchet job, in the hands of the opposition Peoples Democratic Party.

In a statement on June 28, the Director of Publicity, Research and Strategy of the APC in Osun State, Mr. Kunle Oyatomi, said, “We make bold to assert that Justice Oloyede’s petition is a ‘hate’ document laced with puerile sentiments and emotive overflow that could only come from a soul burdened with destructive hatred.

“Justice Oloyede can no longer be trusted because she has betrayed trust in government and therefore has positioned herself with the opposition to destroy the very same government she serves. Her conduct is unacceptable.”

A Lagos-based lawyer, Dr. Kayode Idowu, who noted that the step taken by Justice Oloyede was unprecedented in the history of Nigeria’s judiciary, described the ensuing controversies as unfortunate. As far as Idowu was concerned, Justice Oloyede erred by dabbling into political affairs.

Idowu said, “Definitely, it is not ethical and that is probably why the conduct of the judge in question is unprecedented, because as a judge, even when a crime is committed in your presence, you dare not make a comment, so that when the matter is brought before you, you won’t be biased; he must maintain that neutrality.

“If you notice, when you get to the high court you usually see the statue of the Oh Lady of Justice, which is usually in a blindfold. So, as a judge, you are not supposed to see. But when you now have a judge who descends into the arena of politics, it is rather unfortunate.”

A professor of Law, Itsey Sagay (SAN), also decried the development in very strong words, describing it as a sacrilege. For the professor, the recent development represented the signs of decadence in the Nigeria’s judiciary.

“This whole charade playing out is the greatest revelation in the entire political history of this country. For a sitting judge to write a petition against a governor to the state House of Assembly, it is a sacrilege, it is the greatest breach of judicial etiquette I have ever seen.

“This has never happened before. Having written that petition, she should never have returned to the court anymore because she had become a politician,” Sagay said.

The Vice President of the Nigerian Bar Association, Mr. Taiwo Taiwo, feared that the medium employed by Justice Oloyede to air her views was capable of undermining the sanctity of the judiciary as an independent and neutral arm of government.

Taiwo said, “Well, as far as I am concerned, judges are meant to be apolitical and when it comes to the question of ethics, I think it is very wrong for the judge to have written that petition to the House of Assembly because of the sacred position she holds and of course she is a judge of the Osun State judiciary . Personally, I think it is very wrong.

“In view of separation of power, the independence of the judiciary is sacrosanct; the independence of the executive is sacrosanct; the independence of legislature is sacrosanct; all of them have hierarchy of doing things and my own feeling is that the judge of the High Court of Osun State ought to have employed the judicial hierarchy to ventilate her displeasure or whatever she feels about the issue of payment of salaries and I know for sure that we have been hammering on this independence of the judiciary.

“Now, I have my fears about this development, because politicians have now interpreted the action of the judge as if she was reporting the governor of Osun State or wanted him to be impeached, and that is not the job of the judiciary.

“So, I personally feel uncomfortable with this development and I know many other lawyers will feel the same way that the actions of the judge, though she may have genuine intention, ran contrary to the path she ought to have taken.”

Also speaking was Chief Emeka Ngige, a Senior Advocate of Nigeria, who said that though the judge might have noble intentions, her position as a sitting robbed her the privilege of going public on a political issue the way she had done.

Ngige said, “Well, there is what we called Code of Conduct for Judicial Officers and by the contemplation of that code of conduct, the judge is not an ordinary person. She cannot be behaving like a trade unionist. There are channels of complaints.

“However, I doubt whether, strictly speaking, there is a provision in the that code of conduct for judicial officers that prevents her from making those allegations. But then, I must say, frankly speaking, that reading the tone of the entire letter she wrote, I believe that she was politically motivated and I could see signs of a partisan judicial officer in the tone of her letter.”

NJC’s position

The National Judicial Council is the body vested with the authority to regulate the conduct of judicial officers in the country.

It was created pursuant to Section 153 of the 1999 Constitution of the Federal Republic of Nigeria for the purpose of “insulating the Judiciary from the whims and caprices of the Executive; hence guarantee the independence of this arm of government, which is a sine qua non for any democratic government.”

The council, which is currently headed by the Chief Justice of Nigeria, Justice Mahmud Mohammed, aims to “continually improve society’s perception of justice and ensure confidence in the dispensation of law.”

Asked how the CJN may likely view the Osun State development and what steps the council may likely take, legal practitioners who spoke with our correspondent said the NJC does not act based on newspapers reports. They said the NJC would not act except it receives a formal petitioned filed before it.

Ngige said, “The NJC does not act in vacuum, until either the House of Assembly reports her to the NJC or the governor, if he is aggrieved. The NJC cannot act on newspaper reports.”

Idowu, who corroborated Ngige’s view,however added the judge might be exposing herself to a probe by the NJC, in the event that a petition was written against her by parties in the unfolding drama.

Idowu said, “The NJC has not reacted because the whole episode is still unfolding and nobody has presented any petition against that judge to the NJC.

“The NJC would not ordinarily react to newspaper reports. But if you notice now, the House of Assembly panel is already showing bias against the judge and it is possible that someone could write to the NJC, saying a particular judge has done something untoward by descending into the arena of politics.”

Taiwo also confirmed that the NJC does not act on hearsay.

But Sagay flayed the NJC for looking on while controversies trailed Justice Oloyede’s petition.

“Looking at the desecration of the judiciary by this woman, and they (NJC) are all keeping quiet! It just shows you that this country is in trouble because the judicial hierarchy doesn’t know or has neglected its duty. The woman shouldn’t be there at all anymore. It is a great embarrassment.

“It am baffled that the NJC has not even said anything, and yet you would see the NJC taking an activist decision in Rivers State, when it is not even required to do so. Yet, this is an area where the intervention of the NJC is urgently needed but for them, mum is the word, absolute silence, as if everything is all right.”

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