A report last week in Vanguard has it that the Economic and Financial Crimes Commission (EFCC) is moving to prosecute seven corrupt judges. When a similar story came up initially, there were a number of concerns that this author expressed:

(a) How would the EFCC’s prosecution of such judges tie in with the established process for disciplining of judges? It is important that the process established by law be followed. The practice all over the world is that if a judge commits a crime, he is first removed as a judge through the body that disciplines judges before such judge could face a criminal trial. The reason is simple: It is highly abnormal and outright problematic to be prosecuting a judge who is still presiding over cases in courts. Whatever the prosecutor does, he must ensure that criminal trials do not preempt or predate the disciplinary process. A judge must first be properly removed from the bench before he is to be indicted as a suspect or a defendant. He cannot be in the cell and face detentions by the EFCC, when he is still presiding over cases prosecuted by the EFCC against inmates the judge might have met in the cell during his own detention. This is a no brainer.

(b) The process by which EFCC suddenly targeted judges for corruption investigation is suspect because the EFCC has been having problems with the courts in Nigeria. EFCC has repeatedly violated the rights of suspects and accused people and those people’s only refuge has been the independence of the courts. If the EFCC were to exercise any discretion over the indictment of judges, that would cast a chill on the judges and force them to lose their independence. Judges would in the future be too scared to offend the EFCC in court cases before them. And that would lead to granting the EFCC a carte blanche to suppress the rights of citizens and to continue to play god over the lives of Nigerians.

Simply put: given its poor performance, the EFCC should not be allowed to prosecute judges or to investigate them until such judges have been fully removed from the bench. Indeed, it is terrible that while there has been a recommendation for reprimand for judges, which means they were not found to have done enough to lose their sits in the bench, the EFCC is to prosecute them nonetheless. If the disciplinary body could not find sufficient grounds to remove those judges, how could the EFCC find sufficient ground to have them convicted for criminal offences?

(c) The EFCC, which has been repeatedly reported to be broke, lacks the capacity to undertake new trials of this level of complexity and magnitude. Any such trials would be bugged down in years of stalemates and lack of progress as has been seen in the trial of several former governors. Let the EFCC complete the trial of the cases currently pending before undertaking any new set of complex cases. In the mean time, if found to be corrupt, let the judges be removed in accordance with the disciplinary procedure of the National Judicial Council (NJC).

(d) EFCC has been known to try in the past to control the judiciary or to interfere in the administration of justice in Nigeria. First, it asked for its own special courts so it could control the outcome of cases in courts. Second, it blamed the judges for the poor performance in its cases. Third, it is known that the EFCC has filed complaints against judges, not for corruption but rather on the grounds of its suspicion that the judges were biased against the EFCC as per the outcome of cases in the courts. The same EFCC lawyers that lost cases filed these dangerous allegations. In such circumstances, the EFCC ought never be allowed to investigate or prosecute judges in Nigeria. Let that function be performed by an independent body, tasked only with the prosecution of judges, i.e., the NJC. Every Nigerian should be very worried about the prospects of the EFCC having anything to do with the prosecution of judges in the country.

•Emeka Ugwuonye, lawyer and activist, whose photo appears alongside this piece, prepared this article for the Due Process Advocates (DPA), of which he is Group Founder/Principal Administrator.

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