The recent arrest and detention of some judicial officers by the Department of State Services (DSS) have continued to elicit varied reactions, with some arguing that the agency acted within its powers and others describing the development as an abuse of powers, due process and an attempt to cow the Judiciary. Eric Ikhilae examines the positions.
Men of the Department of State Services (DSS) added a chapter to the nation’s history a fortnight ago with the midnight raid of the residences of some judicial officers and their arrest.
This, arguably, is the first of such incidents in the history of the country, and, as such, opinions are divided as to the propriety or otherwise of the arrests and detention of serving judicial officers on allegation of corruption. Did the DSS go beyond its powers?
DSS’ powers
The agency, originally known as the State Security Service (SSS), is a creation of law. It is one of three agencies established under the National Security Agencies Act. Its functions are spelt out in Section 2(3)(a),(b)&(c) and (4) of the Act
It reads that: (3) 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.
DSS explains action
When many were still at a loss as to what informed the DSS’ decision to move against the judicial officers the way it did, the agency took a step to clear the air on its action by claiming it engaged in a sting operation to apprehend the judges because it possessed intelligence allegedly linking them to acts of corruption and abuse of powers.
An official of the DSS, Abdullahi Garba, who addressed journalists on October 8, said: “The DSS’ action is in line with its core mandate, as we have been monitoring the expensive and luxurious lifestyles of some of the judges, as well as complaints from the concerned public over judgments obtained fraudulently and on the basis of money paid.
“The judges involved were invited, upon which due diligence was exhibited and their premises searched. The searches have uncovered huge raw cash (sums) of various denominations, local and foreign currencies, with real estate worth several millions of naira and documents affirming unholy acts by these judges.”
Criticisms
Critics, who faulted the steps taken by the DSS, have argued that it acted outside its powers, breached due process and trampled on the cardinal principles on which democracy rests – rule of law and separation of powers.
They argued that the DSS lacked the powers to investigate corruption and abuse of office by judicial officers, and that its responsibilities begin and end with ensuring the internal security of the country.
In faulting the process adopted by the DSS, critics stressed that it was unlawful for the security agency to usurp duties assigned solely to the National Judicial Council (NJC) by the Constitution. They contended that the DSS, an agency of the Executive arm, cannot legitimately seek to regulate or inquire into the activities of judicial officers, who are agents of the Judiciary in a democracy, without observing due process.
By due process, they explained, the DSS was expected to route its complaints, allegations and evidences through the NJC, an agency constitutionally empowered to, among others, inquire into the conduct of judicial officers and recommend necessary disciplinary actions, where necessary.
They noted that the DSS has not convinced all that the NJC failed to effectively conduct its affairs as it relates to the security agency’s complaints against the affected judges. They added that the arrest and trial of any judicial officer could only be conducted by any other agency upon the recommendation of the NJC, after the adoption of all its internal mechanisms.
Critics gave examples of the military institutions, where erring personnel are initially subjected to Court Martial procedure before they are released for trial in regular courts. A similar procedure, they said, applies in the police, where erring personnel are dismissed through Orderly Room process, before they are handed over for trial in regular courts.
Observers also queried the tidiness of subjecting a serving judge to criminal trial before being eased out of service. They cautioned against the hurried prosecution of the judges, noting that once criminal prosecution of the judges was initiated, the NJC would be incapacitated until criminal trial was concluded.
The best procedure, they argued, is to remove the erring officer as a judge so he will not remain a judge when he is being tried.
Nigerian Bar Association (NBA) President Abubakar Mahmoud (SAN) argued in similar vein when he said although no judicial officer was above the law of the land, the necessary procedure required that any judge, who commits a crime, must first be subjected to the disciplinary procedure of the NJC before he/she is subjected to the full weight of the law.
“We must not destroy the institution, expose it to ridicule, disdain and humiliation in the eyes of the public, including international communities in the name of fighting corruption,” he said.
The NJC described the arrests as not only a threat to the independence of the Judiciary, which portends great danger to democracy, but a clear attempt by the Executive to humiliate, intimidate, denigrate and cow the Judiciary.
The NJC, while denying the DSS’s claim that it moved against the judges because it (NJC) failed to act, said “impression created and widely circulated before the public, that the DSS forwarded a number of petitions containing various allegations of corrupt practices and professional misconduct against some Judicial Officers to the Council, and they were not investigated, is not correct.”
It stated that due process required that “no judicial officer shall be invited by any institution including the DSS, without complying with the rule of law and due process.”
Whither NJC?
The NJC is a creation of Section 153 of the Constitution with its powers specified in Paragraph 21 of Part 1 of the Third Schedule.
From year 2000 it held its inaugural meeting to 2016, 1,808 petitions and complaints against judicial officers, including Chief Justices of Nigeria, Justices of the Supreme Court and Court of Appeal were received by the respective Chairman (who is always the incumbent CJN.)
Of the total petitions treated so far, 82 judicial officers have been reprimanded through either suspension, caution or warning; 38 judges have been recommended to the either the President or Governor where applicable, for compulsory retirement from office; while 12 have so far been recommended for dismissal.
Many have, however, argued that the procedure adopted in apprehending the judges was immaterial as long as the issue was about corruption.
They also contended tha the argument that the DSS acted outside its powers was incorrect on the grounds that the Judiciary, by its nature, exists to ensure socio-economic and political cohesion in every society, through the interpretation of the law and mediation of conflicts.
By virtue of its critical role in sustaining a given society, the conduct of judges (through mthe Judiciary acts) constitutes an issue of great interest to the public, because judicial officers have the primary responsibility of upholding the law.
To the supporters of the DSS’ action, the agency merely acted within its powers to curb what was likely to threaten the Judiciary, and, by extension, national security.
They also argued that judges were not immune to either investigation or arrest.
Lawyers have also maintained varied positions on the issue. Norrison Quakers (SAN), Paul Ananaba (SAN) and NBA Vice President, Monday Ubani urged caution and the observance of due process.
Quakers said: “What happened is unconstitutional; it is actually a rape and desecration of the Nigerian constitution.
“Quite frankly, this is not a banana republic. Due process must be followed. While we cannot continue to shield people who are corrupt, I think we should follow due process.
“The NJC is responsible for the discipline and removal of judges. If there is a report, they should submit it to the NJC, monitor what the outcome will be and see what the NJC would do. The judiciary is responsible for cleaning its stable,” Quakers said.
Ananaba said: “Our judges are not above arrest, but the NJC is statutorily empowered to look into issues concerning judges, procedure and how they should be handled,
“I am yet to be convinced that by law, the DSS, by the Act establishing it, has powers to operate in the manner that it did when its officers swooped on the judges.”
Ubani said although the country must be rid of corruption, but existing laws must be strictly and diligently adhered to.
“We must exorcise corruption from all our institutions, including from the Executive, and the fight must remain total and impartial,” Ubani said.
On their part, Special Adviser to th President on Prosecution Okoi Obono-Obla, activist-lawyer Jiti Ogunye, and Dr. Richard Nnaemeka, also a lawyer, argued that the DSS acted within its powers.
Obono-Obla said: “There is no infringement on the independence and sanctity of the judiciary in any manner whatsoever . Judges do not have immunity to do what they like.
“When a judge collects bribe to pervert the course of justice, is that not in itself an infraction of the independence of the judiciary and a threat to the sanctity of the judiciary? When a judge commits a crime, it is both a professional misconduct and a crime.”
Ogunye said: “As to whether what the DSS has done is within the ambit of the law, I refer to Section 148 of the Administration of Criminal Justice Act (ACJA) 2015. It says: ‘A search warrant may be issued and executed at any time, any day, including a Sunday or public holidays.’’
“Section 12 (2) of the ACJA provides that where access to a house or place cannot be obtained, the person or police officer may enter the house or place and search it for the suspect to be arrested, and in order to effect an entrance into the house or place, may break open any outer or inner door or window of any house or place… if after notification of his authority and purpose, and demand of admittance duly made, he cannot obtain admittance.’’
Nnaemeka said: “I have heard people arguing that due process was not followed in arresting the judges. My take on that is that we are in unusual times and we require unusual methods. If we had adopted the usual method before now and it failed to yield the desired results, I do not see anything wrong in changing tactics.
“I strongly disagree with those claiming the DSS exceeded its powers in dabbling into corruption cases. Do you know the kind of damage a judge’s wrong or perverse decision can cause to the internal security of this country, particularly in election matters?,” Nnaemeka asked.
