Judicial corruption is the “queen mother” and the most sordid of all corrupt behavior inflicted on the good people of Africa. The tentacles of corruption in the judiciary branch of most countries in Sub-Saharan Africa (SSA) run far, wide, and deep. The citizenry of SSA’s nation states are entitled to and deserve at a minimum, the same interna-tionally recognized standards of honor, decency and reliability in their dealings with their judiciaries.
Judicial corruption may be defined as acts or omissions that constitute the use of public authority for the private benefit of judges, court personnel, and other justice sector personnel that result in the improper and unfair delivery of judicial decisions. Such acts include bribery, extortion, influence pedaling, the abuse of court procedures for personal gain, and any inappropriate influence on the impartiality of the judicial process by actors within the court system.
Africa is widely considered amongst the world’s most corrupt places, a factor contributing to the stunted development and economic impoverishment of many African nations. Of the ten countries considered to be the most corrupt in the world, six are in SSA, according to Transparency International (TI), a leading global watchdog on corruption.
A competent and incorruptible judiciary with fidelity to the vision of equal justice for all is the bedrock on which democracy and democratic practice are anchored. Corruption is pernicious by its very nature so that dishonorable conduct in their judiciary undermine and sap the confidence of the African people in the judiciary. It is a cancer in Africa’s nation-states that desecrates the principle of the rule of law and systematically destroys the fabric of decent society and good governance.
The Scourge of Judicial Corruption in Sub-Saharan African Countries
Some corruption is found in the judiciaries of all countries—rich and poor, democratic and authoritarian, as well as in all types of legal systems, whether state-based or non-state based, formal or informal, applying civil law, common law, religious law, or customary law.
Concerned about the rise in incidents of corruption in the judiciary, the International Bar Association [IBA] launched a judiciary integrity initiative in January of 2015. IBA President David W. Rivkin remarked, “Corruption in judiciaries is a problem on every continent. Where it occurs, this corruption undermines the rule of law and civil society, because it causes citizens to lose faith in the ability of government to assist them. And where judicial corruption exists, it is impossible to eliminate corruption in other aspects of government.
This issue requires the attention and resolve of the legal profession as a whole to overcome it, and the IBA, as the global association of lawyers and bar associations, can uniquely contribute to the fight against judicial corruption.”
The fact that corruption is a very “serious problem,” in forty of Sub-Saharan Africa’s 46 nation states was confirmed recently by TI, which also lamented that there has been no improvement in powerhouses, Nigeria and South Africa.
TI scapegoated Ghana, which was recently rocked by an undercover sting operation initiated by a journalist (reminis-cent of “Operation Greylord,” conducted in Chicago, Illinois, USA), that filmed judges taking bribes. 12 Ghanaian high court judges and 22 lower court justices were filmed accepting money, and in one case, a goat – for Christ’s sake!
The story alleges that the 34 judges accepted bribes and extorted money from litigants to influence their decision. After 20 months of investigation, 20 of the judges were found guilty of bribery and were unceremoniously sacked. This is particularly perturbing
Fundamental.” The cries of the international community calling the move, “clearly disproportionate,” has thus far fallen on deaf ears. Even South Africa’s judicial system, reputed to be one of the closest to international standards on the African continent, has also come into disrepute in recent years. Half of survey respondents in the Global Corruption Barometer 2013, considered the South African judiciary to be corrupt or very corrupt.
Nigerian President Mohamadu Buhari, elected last year on an anti-corruption mantel, recently commented that, “On the fight against corruption vis a vis the judiciary, Nige-rians will be right to say that is my main headache for now,” and that “far-reaching re-forms of the judiciary remained a key priority for his administration.”
According to the former Chief Justice of Nigeria, Justice Dahiru Musdapher, “Corrup-tion in the Justice sector is a keystone to corruption throughout society. Without an honest criminal justice system, the wealthy, especially the corrupt, can escape the con-sequences of their crimes. Such impunity reduces the perceived cost of corruption. The risk that corrupt activity will result in imprisonment and accompanying public humiliation is minimal. The gains from corruption are therefore not discounted and there is thus little reason beyond personal integrity not to engage in corrupt acts.”
Justice Musdapher closed his skating criticism by noting that, “Metaphorically a corrupt judge has been described as more harmful to the society than a man who runs amok with a dagger in a crowded street. The latter as you know can be restrained physically. But the former deliberately destroys the moral foundation of society and causes incalculable distress to individuals while still answering, ‘honourable.’”
Former president of the Nigerian Court of Appeals, Justice Isa Ayo Salami, similarly lamented that, “the problem with corruption in the judiciary is real and has eaten deep into the system.” “[W]e hear constantly of retired senior judges who practice as consult-ants in fixing judgments. These consultants take money from litigants to give judges or intimidate judges to pervert justice. It is my respectful view that appeal should be made to these retired senior justices to leave the despicable role of bribing or intimidating judges. They should engage themselves in other respectable vocations.”
It is obvious that the acidic rain of justice sector corruption pouring down on Africa to-day must be stopped by any means necessary. African nations and their external partners and stakeholders must put forth a mammoth effort to interrogate this important continental issue. To be a judge, or in some cases judge and jury, over your fellow man is to be placed in the stead of God. For this reason alone, any member of the Judiciary who ventures to indulge in bribery and other corrupt practices, abuses this trust in the most atrocious manner.
It bears mentioning that when judicial corruption reared its ugly head in the city of Chicago, Illinois, it was quickly and decisively decapitated by “Operation Greylord.” The operation is important in the annals of public corruption investigations in the United States. Disgusted with the corruption that permeated the Cook County court system, a local lawyer, Terrence Hake, became the FBI’s mole in its unprecedented undercover investigation of judicial corruption utilizing listening devices. At the conclusion of the investigations, nearly 100 people had been indicted, and all but a handful were convict-ed. Of the 17 judges indicted, 15 were convicted. The tally of convictions included 50 lawyers, as well as court clerks, police officers and sheriff’s deputies.
The above said, there is still much hope that judicial corruption can be substantially reduced in SSA. Africa must not throw in the towel for it is said that “man must struggle for to resign one’s self to faith is to be crippled fast.” Therefore, deployment of remedial measures should not be deemed a futile exercise of attempting to insert square pegs into round holes.
A Checklist of best practices for effectively reducing corruption in the judiciary of Sub-Saharan African nations
• Building up the socio-economic status of judges and judicial personnel is by far the most important justice sector corruption reduction factor. Judiciary ca-reers are poorly regarded and compensated in many African countries. This makes it difficult for judges to maintain a sense of professional dignity and re-main incorruptible.
• Care should be taken to ensure decent tenure for judicial personnel. The dura-tion of a judicial appointment at each level of a court system which protects judges against arbitrary dismissal, salary reduction, etc. is also essential to the success of anti-corruption efforts in the judiciary.
• Improving working conditions for judiciary personnel. In order to raise public expectations of professionalism for the judiciary and attract qualified persons to the judiciary, working conditions for judicial personnel must be superior to all and inferior to none.
• Establishing and strengthening independent judiciaries. Enhancing the power of the judicial branch vis-á-vis the other branches of government is also crucial to improving professional self-image and strengthening independent judicial bod-ies.
• Upgrading or reengineering judicial career pathways. Improvements in the se-lection system of judges such as utilizing merit-based criteria in the promotion systems, setting of salaries and benefits, etc. is also important.
• Strengthening judicial administration and self-governance. The objective in this regard is to make the judicial branch more independent and to distinguish judges from civil servants in the rest of the government.
• Building up the capacity of independent judicial and legal associations. Building competent judicial associations strengthens the independence of the judiciary as a whole and espouses the importance of an independent judiciary.
• Encouraging judicial professional development and access to the laws. Judges must be afforded access to ongoing training opportunities and other programs aimed at strengthening judicial education or improving training institutions and continuing legal education programs.
• Stimulating the citizenry to support unfettered judicial independence is also an asset in reducing judicial corruption. Citizen awareness and oversight are critical factors. African nations must institute effective judicial watch and public awareness programs which bolsters the independence and effectiveness of the judiciary.
• Close scrutiny of the judiciary by civil society, academics and the media. The external monitoring of courts is helpful in enhancing the impartiality, independence, and effectiveness of the judiciary.
• Improving the system’s component targeting efficient administration of justice. Programs to improve transparent and efficient administration utilizing automation reduces the incidence of corruption through transparency.
• Improving the investigative capacity of law enforcement such as prosecutors and the police. Since criminal laws are investigated and prosecuted by the police and prosecutors, respectively, improving their investigative capacities helps in discouraging corruption in the judiciary.
• Mandating disclosure of judges’ assets, income, benefits, and membership in associations. When the applicable laws require that judges disclose assets and liabilities when initially appointed and annually thereafter, it makes it easier to detect unexpected acquisitions of wealth by judiciary personnel.
• Regular sector-wide anti-corruption awareness and training is helpful. The le-gal profession led by the bar associations, law societies, law schools, and private law firms should engage more in the process to inform and train its own profes-sionals.
• Mandating that all law schools in SSA develop strong ethics/anti-corruption curriculums. Law schools and law programs should mandate anti-corruption courses for every year of law school in increasing complexity. Post-law school li-censure examinations must also include strong ethics and anti-corruption con-tent.
• Judicial ethics and institutional integrity must be constantly emphasized. Measures in place must foster compliance with ethical codes and ethics counse-lors should be made available to judges and court personnel to guide members faced with ethical questions.
• There must also be an impartial, effective and easily accessible procedure for filing complaints against unethical behavior. Timely-investigation and adjudi-cation of complaints, as well as appropriate disciplinary action must be imposed impartially.
• Investigations and punishment of corrupt practices must be even-handed in order to build credibility and respect for the system. The capacity to investigate, prosecute, and resolve allegations of corruption fairly must be fundamentally fair.
• Sanctions for judges, court officials, and lawyers found to have indulged in corrupt activities must always include forfeiture of all illicit gains.
• Adopting a process of financing the judiciary that does not leave the sector vulnerable to executive influences. The budget for the judiciary must always be protected against arbitrary reduction by the executive and legislative branches of government.
• The creation of anti-corruption agencies have also proven effective in the fight against judicial corruption. Special anti-corruption prosecutors and police with special prosecutorial powers and well-trained personnel should be deployed.
• The use of aggressive investigative techniques such as authorized wire taps, undercover informants, and well-orchestrated sting operations to track down those who compromise the judicial system is essential.
• Care must be taken to provide procedures to guard against misuse of anti-corruption policies and improper or politically motivated investigations of in-nocent judges.
• It is also important to place adequate emphasis on prevention by identifying all court procedures that invite or attract corruption and modifying them expeditiously.
• Encouragement of whistle-blowers and protection of them under the law to encourage reporting bad behavior by judges. This may require amendment of existing laws to enable judges presiding over corruption matters to admit recorded conversations, without compelling the whistle-blower to appear in court in order to protect their identity.
• Non-criminal misconduct should also be clearly understood and discouraged. This includes improper influences apart from criminal acts that distort judicial outcomes.
• Laws to criminalize ex-parte communication between judges and litigants must be created and utilized where they do not already exist. Because of the unique cultures of African nation states, litigants always strive to identity close friends of judges, and attempt to influence decisions.
• Judgments must be supported by well-written and publicly available opinions, either printed or online. Making judicial opinions publicly available will afford the general public, the media and other stakeholders to be supportive or critical based on the soundness of the legal reasoning of decisions.
• Establishment of committees on ethics code to provide opinions on questionable conduct. The committee will serve as an advisory board and be able to issue advisory opinions to judges and other court personnel.
• Finally, some proponents have espoused using the pulpit to condemn judicial corruption because many African nations have a strong religious consciousness or disposition in their body politic. The religious denomination does not make much of a difference, as long as an anti-corruption message is being delivered.
Conclusion
The judicial systems of SSA nations can effectively work toward overcoming the challenges of corruption and achieve high levels of integrity and public confidence. While the task is daunting, the rewards of success are great. Success in combating judicial corruption must include measures for reducing the opportunities for and benefits of corrupt behavior. Increasing the likelihood that indulging in corruption will be found out, publicly punished, and all ill-gotten gains disgorged is a very strong deterrent. As has been shown, adherence to high standards of judicial independence and impartiality, integrity, accountability, and transparency does diminish corruption.
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About Igbanugo Partners International Law Firm
Igbanugo Partners Int'l Law Firm is based in Minneapolis, Minnesota. It focuses on (1) U.S. immigration law and (2) international trade law in Sub-Saharan Africa.
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