By Chima Ubeku
A few days ago, a judge in Oregon, United States of America (USA) noticed an unexpected glow on a juror’s chest while the courtroom lights were dimmed during video evidence in an armed-robbery trial. The juror, Benjamin Kohler, it seemed, was texting. Marion County Circuit Judge Dennis Graves cleared the courtroom and excused all jurors except 26-year-old Benjamin Kohler.
Jurors in Oregon are given explicit instructions at the outset of each trial not to use cellphones in court. Therefore, Kohler was held in contempt, and he spent most of two days in the county jail.
In June, 2011, United Kingdom (UK) Juror, Joanne Fraill was jailed for eight months for using Facebook to exchange messages with Jamie Sewart, 34, a defendant already acquitted in a multimillion-pound drug trial in Manchester. Sewart, who had already been acquitted of conspiracy to supply drugs when the Juror looked her up on Facebook, was also jailed for two months.
Sentencing Frail, the judge said in his ruling; “Her conduct in visiting the internet repeatedly was directly contrary to her oath as a juror, and her contact with the acquitted defendant, as well as her repeated searches on the internet, constituted flagrant breaches of the orders made by the judge for the proper conduct of the trial.”
Even though the lord chief justice, while discussing the reasons for the sentence in the high court, acknowledged that Fraill was “a woman of good character” and was not involved in an attempt to pervert the course of justice, the chief justice maintained that “misuse of the internet by a juror” was always “a most serious irregularity and contempt”. He added: “The sentence is intended to ensure the continuing integrity of trial by jury.”
The two instances above happened in USA and United Kingdom (UK) where rules are followed and applied not minding the status of the offender.
Can these ever happen in Nigeria, the land where judges rarely obey their own rules? Rule 1 (2) (a) of the Code of Conduct for Judicial Officers of the Federal Republic of Nigeria states that: “A judicial officer must avoid social relationships that are improper or give rise to an appearance of impropriety, that cast doubt on the judicial officer’s ability to decide cases impartially, or that bring disrepute to the judiciary” while Rule 2 (C) (1) provides that: “A Judicial Officer should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where…”
Not minding these rules, which all judges in Nigeria swore to obey, the suspended President Court of Appeal (PCA), Justice Isa Ayo Salami, who was indicted by the police for having telephone interaction with Action Congress of Nigeria (ACN) chieftains during the pendency of an election petition appeal matter, involving the party is still seeking a return to his office as PCA. Not only that, President Goodluck Jonathan is even being accused of deliberately refusing to reinstate him.
The police had affirmed in its report with reference number CR:3000/X/X-SQD/FHQ/ABJ/VOL.2/230 dated February 8, 2013 and signed by CP Ali Amodu Commissioner of Police (‘X’ Squad), Force Headquaters, Abuja that there was exchange of calls between Justice Isa Ayo Salami and Tunji Ijaiya in one hand and Tunji Ijaiya with the ACN leader, Senator Bola Tinubu and National Publicity Secretary, Alhaji Lai Rauf Mohammed on the other hand, and that the exchange of phone calls spanned between September, 2010 to April, 2011.
The report read in part: “That GSM no. 08034004887 belong to Hon. Justice Isa Ayo Salami, OFR, of Plot 11, New Bussa Close, Area 3, Garki Abuja. The line was migrated to post-paid on 9th May, 2007.
“That GSM no. 08034010700 belongs to Alh. Tunji Ijaiya of no. 8, Aderemi Adeleye Road, GRA Ilorin, Kwara State.
“That GSM no. 08034010700 belonging to Alh. Tunji Ijaiya appeared to have been used as a link between GSM nos. 0803401111 (Lai Rauf Mohammed) 08062240104, 08034240000 and GSM no. 08034004887 belonging to Justice Isa Ayo Salami as there was exchange of calls between Justice Salami and Tunji Ijaiya in one hand and Tunji Ijaiya with other mentioned subscribers on the other hand. The exchange of phone calls spanned between September, 2010 to April, 2011.”
Telephone numbers 08062240104 and 08034240000 belong to Senator Bola Tinubu.
The police then concluded that; “From the available CDRs, there is evidence of communication between Hon. Justice Isa Salami and Alhaji Tunji Ijaiya who also communicated with most questioned GSM lines; from September, 2010 to April, 2011. The details and contents of the calls are not known due to the fact that MTN has not extracted voice and text messages on the lines; on grounds of legal limitations. They claimed that there is no law empowering them to provide voice and text messages of their subscribers to security agencies.
“A legal advice received from the Legal Section of the ‘D’ Department (FCID), Abuja dated 8th February, 2013 opined that MTN Nigeria should be prosecuted for an attempt to suppress evidence in this case as provided by Section 167 (8) of the Evidence Act, please.”
The Call Data Records (CDR) obtained from Area ‘G’ (Ogba, Lagos command), which Mr. Mathew Okoromi, a Senior Subscriber Fraud Analyst of the MTN technical department confirmed to be genuine revealed damning details of the exchange of telephone calls and sms between the ACN leaders and Tunji Ijaya on one hand, and Ijaya with Justice Salami on the other.
For instance, between October 11and 15, 2010, Mr Tunji Ijaiya and Justice Salami exchanged 11text message and voice calls between themselves. At 9:22am, on October 14, 2010, Dr. Kayode Fayemi (08055556655), who was the 1st Appellant in the Ekiti Appeal matter called Mr Tunji Ijaiya.
At 11:08am on the 15th of October 2010 being the day of the judgement in the Ekiti matter, Lai Mohammed with Tel No: 08034301111 called Tunji Ijaiya. At 1:08pm, he (Lai Mohammed) again called Tunji Ijaya. Curiously at 16:45pm, Justice Salami now called Tunji Ijaya. On October 16, 2010, which happened to be the day he was being sworn in as Governor, Dr. Fayemi sent a text to Tunji Ijaya.
Apart from telephone interaction with parties to the Ekiti and Osun State election petition matters, Justice Salami also, being aware of allegation of convivial relationship between him and the ACN leader, Tinubu went ahead to preside over the Ekiti State election matter, and also read the judgment.
As at the time Justice Salami was sitting on the Ekiti State election matter, there was a Petition pending against him before the National Judicial Council (NJC) wherein the Petitioners, Senator Umaru Dahiru and Yahaya Mahmood alleged via affidavit evidence that the ACN had close affinity with Justice Salami through its alter ego and National leader, Senator Bola Tinubu. Justice Salami, being a member of the NJC was aware of the pendency of this petition.
In the two issues, Justice Salami obviously contravened Rule 1 (2) (a) and 2 (C) (1) of the Code of Conduct for Judicial Officers of the Federal Republic of Nigeria for which he ought to have been punished. But can this ever happen in Nigeria?
Interestingly, unlike Salami’s alleged telephone interactions, which took place while the cases were still on and was with parties to the case he was handling, the facebook conversations between the UK juror and the accused for which she was jailed for eight months, took place when the accused had already been acquitted of conspiracy to supply drugs. Also, the text message that sent the US Juror to jail had nothing to do with the case she was handling.
Yet, instead of sending Justice Salami to jail as done to the UK and US Jurors by the countries’ judiciary, Nigeria judiciary appears to be waiting for a day when the suspended PCA would resume office and sit in judgment over cases. Even judges the NJC said it found to have erred have only been retired compulsorily, with the payment of their retirement benefits.
Then I ask; can the reform being championed by the Chief Justice of Nigeria (CJN), Justice Mariam Aloma Muktah return the Nigeria judiciary to that path of honour when an offending judge like Justice Salami would act like Joanne Fraill, the UK Juror and say; “I am guilty, please temper justice with mercy?
Can our judiciary get to such a dignifying level where like it happened to Benjamin Kohler, the US Juror, a judge would be openly punished for merely sending sms (not to litigants) during court proceeding, so as to ensure the continuing integrity of trial by judges?
Nigerians are waiting.
Comrade Chima Ubeku is the National Coordinator, Society for Rule of Law in Nigeria (SRLN)