It is no longer news that the homes of some judicial officers were raided by the Department of Security Services (DSS) in the early hours of Saturday 8th of October 2016. This move, unprecedented in Nigeria has given rise to a cacophony of voices. Some are expressing support for the action of the DSS which they see as welcome fight against corruption in the Judiciary. Others disapprove of the action, which they see as a threat to the independence of the Judiciary and a usurpation of the functions of the National Judicial Council (NJC), the body charged by the Constitution with the discipline of Judicial Officers.
Reactions to the DSS action
Sad, regrettable – CJN.
One of the first to react to this unusual development was the Nigerian Bar Association. The Association declared a “State of Emergency” on the Judiciary and called on President Buhari to order the release of the arrested Judges. According to the NBA, it was not the responsibility of the DSS to arrest Judges; that the manner of the arrest of the Judges was“Gestapo Style;” that the arrests were an unconstitutional means of intimidating the Judiciary and undermining its independence; that there are established procedures for handling issues affecting the Judiciary and that such constitutional means be followed.
But in what looks like an about face, the NBA is now backing the call that the accused Judges be suspended. The Bar leadership’s new position was made known on Thursday 20th October 2016 during the Valedictory Court Session in honour of a retiring Justice of the Court of Appeal, Sotonye Denton- West. The NBA current thinking is that the Judges concerned should recuse themselves from further judicial functions or that they be required to proceed on compulsory leave until their innocence is fully established.
After a few days, the Chief Justice of Nigeria was reported as saying that the arrest of the Judges was sad and regrettable. That was at the valedictory Court Session held on Monday, 10th October 2016 in honour of Suleiman Galadima, JSC who retired from the Supreme Court.
The National Judicial Council is the body charged by the Constitution with the function of appointment and discipline of Judges. It reacted in a Statement it issued and condemned in its entirety, the arrest of the Judges. The NJC viewed the action as a “threat to the Independence of the Judiciary; and also considered the action as a clear attempt by the DSS to humiliate, intimidate, denigrate and cow the Judiciary.”
The Council denied the allegation that it failed to investigate the Petitions sent to it earlier against the arrested Judges by the DSS. According to the NJC, it received Petitions from the DSS only in respect of two named Judges: one had been dealt with, wherein the DSS could not substantiate its allegations and the Council exonerated the Judge concerned. The NJC is still investigating the other Petition dated 5th August 2016. The Council said there was no Petition at all from the DSS against any of the two Supreme Court Justices who were also arrested.
Meanwhile, the CJN has disagreed with the NBA on its new position calling for the Judges to be excused from further judicial functions. The CJN. is of opinion that such a course would be hasty since the DSS is yet to complete its investigations.
What do I teach my Students?
For his part, Prof. Akin Oyebode of the University of Lagos is against corruption in the Judiciary. In an interview with Sunday Punch, he said “A judge that is corrupt is worse than an armed robber, because he’s compromising the judicial process. He’s tilting the scales of justice in favour of a litigant who has paid him. You know the figurine of Themis; the goddess of justice, which is at the Courts; blindfolded lady, sword on one hand and scales on the other. If you compromise the Judge, it will remove the blindfold to see the litigants and tilt the scales in favour of one who has paid or paid more. At the end, justice is no longer fair to all concerned.”
However, he is at the same time, against arbitrariness in fighting the corruption. According to him, the DSS is a secret police concerned with internal security and should not have usurped the functions of the Police, the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices Commission (ICPC). Therefore, due process has not been followed. In fact, according to him, “what the DSS did was tantamount to an act to bring the roof down on all of us.” He said furthermore, “I thought that the Nigerian state should be more ingenious in the way it carries on its investigation and should not bypass the NJC, which is the authorised organ to discipline Judges. If you find evidence, you submit the evidence to the NJC. Once NJC acts on your evidence and it relieves them of their duties, then you can pounce on them.”
From the perspective of a law teacher, Prof. Oyebode’s burden was how to communicate the principles of the rule of law, separation of powers and presumption of innocence to students if arbitrariness is allowed to hold sway.
Voices from the other side
Focus on the substance, Not on Procedure
There are those who hold a contrary view however. One of them is Justice Samson Uwaifo, a retired Justice of the Supreme Court. In an interview with Channels Television, he said,“A corrupt judge is more harmful to the society than a man who runs amok with a dagger in a crowded street. If a Judge is corrupt, he is no longer a Judge, he is a thief and therefore he should be treated as such, according to the law and sent to jail.”
He said focus should be on the substance, which is the eradication of corruption from the Judiciary. “The substantive issue is corruption. Is it true that these people are actually corrupt and that huge sums of money were found in their place? If that is so, the question of the procedure that was taken would be a secondary thing – DSS can be punished for what they did (wrong) but (focus should be) on the result (of the DSS action).”
The Legal Profession had condoned Corruption
Femi Falana Esq., SAN is of the opinion that the Legal Profession only had itself to blame because it had not been pro active enough in fighting corruption among its ranks. According to him, the Legal Profession had failed to take advantage of the relevant statutory disciplinary bodies to purge the Bar and the Bench of corrupt elements and this is what has given the opportunity to the DSS to engage in arresting Judges. He alleged that for several years, Judges who committed grave criminal offences were not prosecuted but were merely retired by the authorities on the recommendation of the National Judicial Council.
He added a few days later that the call for the suspension of the accused Judges was not without precedent. He pointed out that a similar action was taken in 2006 when the Judges on the Akwa-Ibom Election Petition Tribunal were accused of corruption. They were suspended pending investigation and were later removed from the Bench when investigation showed their culpability. Femi Falana Esq., SAN added that the NJC under its rules has the power of Interim suspension, based on Section 2.2.3 of the National Judicial Policy of the NJC.
Is it lawful for the DSS to arrest Judges?
As far as the Presidency is concerned, the action of the DSS is in order. That is the opinioncontained in a review wherein the Presidency argued that the DSS acted in accordance with the extant laws of the land. In its conclusion, the review report asserts that “the actions of the DSS in the arrest and search of the premises of Judges and Justices can be placed firmly within the ambit of the law, sentimental and emotional considerations notwithstanding.”
Referring to the provisions of Administration of Criminal Justice Act (ACJA), the review pointed to Section 148 which provides that: “A search warrant may be issued and executed at any time on any day, including a Sunday and public holiday.” Section 149 of the ACJA provides that: “(1) Where any building or other thing or place liable to search is closed, a person residing in or being in charge of the building, thing or place shall, on demand of the police officer or other person executing the search warrant, allow him free and unhindered access to it and afford all reasonable facilities for its search. Where access into the building, thing or place cannot be so obtained, the police officer or other person executing the search warrant may proceed in the manner prescribed by Sections 9, 10, 12 and 13 of this Act.”
The Presidential review added that “Sections 9, 10, 12 and 13 relate to the use of force in the search of a person arrested; inventory of items recovered in the search; entry of premises where a suspect to be arrested has entered into; and breaking open of any outer or inner door or window of any house or place whether that of the suspect to be arrested or any other person or otherwise effect entry into such house or place. The review submitted that “These provisions are similar to the provisions of Sections 7 and 112 of the Criminal Procedure Law and were followed by the DSS.” On the execution of an arrest warrant, Section 43 (1) ACJA provides that “a warrant of arrest may be executed on any day, including a public holiday.”
In addition, the legal review pointed out that it is “pertinent to note that Nigeria is not the first country to investigate and prosecute Judges that are suspected of commission of acts of crime. The Federal Bureau of Investigations, FBI, in the United States of America (a body similar to DSS) has at various times, prominently in January 2013, May 2014, and November 2015 arrested a number of Judges for bribery, corruption and other similar offences; subjected the Judges to trial at the end of which the convicted Judges were imprisoned. Nearer home, neighbours like Ghana and Kenya had also cleansed their respective Judiciaries through investigation and prosecution of Judges suspected of commission of corruption.”
If the law in those countries permitted what those law enforcement agencies did concerning their Judges, why not? In Nigeria, what does the law establishing the DSS say? The law establishing the DSS is the National Security Agencies Act, Cap. N74 Laws of the Federation of Nigeria 2004. Section 2(3) of that Law spells out the functions of the State Security Service (as the Agency is still known under the Act) as follows:
“The State Security Service shall be charged with responsibility for-
(a) the prevention and detection within Nigeria of any crime against the internal security of Nigeria;
(b) the protection and preservation of all non-military classified matters concerning the internal security of Nigeria; and
(c) such other responsibilities affecting internal security within Nigeria as the National Assembly or the President, as the case may be, may deem necessary.”
The phrase “internal security” was not defined in the Act. In this controversy, one of the big questions that will come up for determination is, whether it is within the purview of the functions of the DSS to investigate allegations of corruption and abuse of office by Judicial officers and to execute this search warrant relating thereto?
Another question may also arise is whether, no matter the statutorily defined functions of the DSS, it is not the public duty of every Nigerian and every institution in Nigeria to move to prevent crime whenever or wherever they become aware that such is being committed?
These questions must be answered satisfactorily because it is undoubtedly important and critical even, that corruption be fought to a stand still in Nigeria but we can not do so at the expense of the rule of law and due process. Otherwise, we will be laying ourselves open to arbitrariness and dictatorship whereby all manner of atrocities may be committed all in the name of fighting corruption. It is when these questions have been answered properly that it could be said that the rule of law and due process have been followed.