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Integrity and elimination of corruption from judiciary
- Released by Hon. Justice Emmanuel Ayoola on Monday 4th June 2007 There was a time when national judiciaries could stand aloof in judicial isolation, determining and measuring their several standards by their own locally set values. Now, things have changed. Now, there is globalisation of standards brought about by the growing realisation that there is a set of values that are universal. More and more it is realised that such values as judicial integrity and independence are universally accepted and established values that are essential to the concept of the rule of law if that concept is to be meaningful and if law is to play any part in the sustenance of democracy, the promotion and protection of human rights, the preservation of fundamental liberties and the pursuit of sustainable economic, social and political development.
Integrity in its ordinary sense has been described as the quality of being honest and having strong moral principles. Independence on the other hand, in the ordinary sense, means the freedom to organise your own life, make your own decisions etc. without needing help.
Two essential qualities that any credible judicial activity or any system of administration of justice must possess are, therefore, the twin qualities of judicial integrity and judicial independence.
Absence of judicial independence, on the other hand, itself creates a corrupt judicial system and provides a fertile environment for the morally weak judge to indulge in corrupt judicial practices. Removing corruption in the wheel of administration of justice, therefore, involves ensuring judicial integrity and enthroning judicial independence.
It is fitting to observe that a misunderstanding of the essence and true boundaries of judicial integrity and of judicial independence has sometimes led some to believe that there is a conflict in the two concepts in the context of the administration of justice. They would, erroneously, equate judicial independence with freedom from accountability, as they regard every demand for accountability as an encroachment on judicial independence.
Judicial integrity is policed by accountability. Integrity not monitored is subjective integrity that may make integrity an abstract virtue divorced from reality. Accountability is the anchor of integrity. It is not a negation of judicial independence. If corruption is to be removed from the wheel of administration of justice, accountability must be deliberately and firmly pursued in all its ramifications.
One of the main roads that lead to corruption-free administration of justice is, therefore, the establishment of accountability mechanisms in the system of justice. Other equally important means are: integrity, education, public enlightenment and mobilisation of the public against corruption. A corruption-ridden judiciary cannot lay legitimate claim to independence nor can it retain its independence for long as it looses confidence of and credibility in society.
There is need at all times to ensure judicial integrity. However, a judiciary that submits the initiative to ensure judicial integrity to extraneous bodies soon looses its independence and its credibility.
This is why it is desirable, if not imperative, that the judiciary must urgently devise its own initiatives and policies and measures to rid itself and the system of administration of justice of corruption.
In order to formulate such judicial anti-corruption policies that would be credible and ensure transparency, the judiciary should not fight shy of self-examination or of self criticism, nor must it be tired of discussing in an open and frank manner, corruption issues such as the damage corruption does to society, public perception of the level of corruption in the judiciary, how best to measure the actual level of corruption in the judiciary and the best strategy to fight judicial corruption and such like issues. It is a credit to the National Judicial Institute that through the instrumentality of these courses which it organises periodically, judges are able, sometimes, to discuss these issues.
In Nigeria, although one can discern efforts to fight judicial corruption through mechanisms, measures and institutions established by law, it cannot be said that those efforts are in the context of a policy or strategic framework. Rather, they are scattered here and there within the legal system.
Such mechanisms, measures and institutions are to be found in the activities and operations of such supervisory and disciplinary bodies as the National Judicial Council, and in codes, such as the Codes of Conduct for Judicial Officers and the Code of Conduct for Public Officers in the fifth schedule of the 1999 Constitution; among several others.
However, most would agree that welcome as these mechanisms may be, they cannot be a substitute for a holistic, comprehensive and well-articulated judicial anti-corruption policy and strategy that would clearly articulate the issues, identify the solutions and design mechanisms and measures to monitor the level of judicial integrity and enforce compliance with standards of desirable judicial integrity.
Ideally, a comprehensive judicial anti-corruption policy and strategy would take note of the set of preconditions necessary to curb corruption in the judiciary similar to those which were identified in the UNODC Anti-corruption Toolkit t as follows: -Fair remuneration and conditions. -Adoption and monitoring of judicial code of conduct. -Declaration of assets. -Computerisation of court files. -Establishment and monitoring of sentencing guidelines. -Use of alternative dispute resolution. -Importance of peer pressure and public complaints mechanism. -No immunity from obedience to general law. -Need for independent inspectorate. -Important role to be played by the bar association and law society. -Need to give litigants timely information regarding status of the case. -Need to conduct workshops addressing integrity and others and -The important role of the media.
A few of these preconditions can be discussed against the background of our experience of the Nigerian judiciary.
Fair remuneration and conditions
Although there is reluctance to subscribe to the notion that low remuneration is any justification or excuse for indulging in corruption practices, the reality is that the morally weak, who otherwise would have resisted the temptation to be corrupt would easily succumb to temptation when faced with the strain of financial embarrassment. In regard to conditions, such conditions must be such as would guarantee judicial independence. What is fair remuneration and conditions will always be a matter of opinion and, sometimes, debate. In Nigeria, we tried to ensure fair remuneration by vesting the fixing of judicial remuneration in an independent body.
However, there is no articulation of the procedure by which that body determines what is fair remuneration nor is there a predetermined policy statement as to the guiding principles that would determine the conditions of service of judges such as would be fair in the context of impartial and independent administration of justice. If judicial integrity and independence are to be guaranteed through fair remuneration and condition, the procedure for fixing such should itself be fair, open, and participatory and not subject to apparent arbitrariness. One of the means that could ensure the fairness of judicial remuneration is through indexation of salaries.
Adoption and monitoring of judicial code of conduct
Although our Code of Conduct for Judicial Officers is one of the most modern codes, it lacks a monitoring mechanism of compliance. Its sanctions are triggered by complaints, whereas its potency would have been enhanced by designing monitoring mechanisms that would monitor, periodically, level of compliance and public perception of level of compliance and a system of periodic peer review.
Need for independent inspectorate
In the UNODC Anti corruption Toolkit, it was suggested that: “An inspectorate or independent guardian should be established to visit judicial districts regularly in order to inspect, and report upon, any systems or procedures that are observed that may endanger the actuality or appearance of probity and report upon complaints of corruption or perception of corruption in the judiciary.”
So far, the idea of such an inspectorate as was suggested is alien to the culture of superior courts in the Nigerian judiciary. However, ‘it is fitting to note that the old order may gradually be changing. The NJC through the activities of its Committee on Performance Evaluation of Judicial Officers of Superior Courts now not only monitors judicial performance through periodic returns of individual output of judges, but also conducts visits to the judiciaries. No doubt, these efforts fall short of the UNDOC suggestion but it is a beginning that may be expanded on in future.
Many do not realise, and the point should now be emphasised and publicised, that under its systems review powers, the Independent Corrupt Practices and Other Related Offences Commission is empowered to examine the practices, systems and procedures of public bodies and where in the opinion of the Commission, such practices systems or procedure aid or facilitate fraud or corruption to direct and supervise a review of them. The judiciary is not exempt from the exercise of this power.
Need to conduct workshops addressing integrity and ethics
In this regard it is sufficient to adopt the suggestion in the UNDOC Toolkit as follows: “Workshops and seminars for the judiciary should be conducted to consider ethical issues and heighten vigilance by the judiciary against all forms of corruption. A handbook for judges, if not already in existence, should be instituted. The book should contain practical information on all topics relevant to enhancing the integrity of the judiciary. “
I have merely attempted to highlight just a few of the issues that a judicial anti-corruption policy and strategy may address. Every aspect of the set of preconditions already set out above is worthy of consideration and discussion.
One last issue that needs to be discussed are the challenges that the judge has to face in maintaining integrity and independence. It is naive for any judge to think that he does not need courage to resist challenges to his integrity and his independence. It is also naive for a judge to think that lack of integrity is displayed only when -there are issues of gratification. The basic test of lack judicial integrity is whether the judge deliberately turns his back, for whatever reason, on what justice demands. As for independence, the new judge must be alert to the fact that challenge to judicial independence does not come only from executive sources. He will do well to expect that societal pressure, political pressure and, even, economic pressure may well impinge on his independence. Besides, a corrupt judge has traded away his independence.
For us in the ICPC, it is a healthy development that corruption issues are now being discussed publicly and with the urgency that they deserve. However, we are not content with mere discussion, rhetoric and lip service to the anti-corruption campaign. Any discussion must result in definitive action. Every sector of society must embark on action-oriented approach to the war against corruption. Judges are not excluded from the campaign. Rather, they, as leaders in society, should be in the forefront of the campaign. Anything less will cast doubt on the sincerity of the judiciary in any claim to be part of the war against corruption.
Hon. Justice Ayoola delivered this piece at the induction course for newly-appointed Judges and Khadis in Abuja on June 4, 2007.
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