Gun-wielding agents of the Department of State Services (DSS) swooped on the residences of senior judges in Abuja, Gombe and Port Harcourt at the weekend. The DSS said it recovered N93.5 million and cash in foreign currencies from the three judges arrested in Abuja. The development has thrown up some questions: Is it legal to arrest and prosecute judges without recourse to the National Judicial Council (NJC)? Can a judge who is on trial continue to sit? JOSEPH JIBUEZE sought lawyers’views on these and more.
In what has been described as unprecedented, two justices of the Supreme Court, Inyang Okoro and Sylvester Ngwuta, were arrested by the Department of State Services (DSS) in what it called a “sting operation” in Abuja.
Apart from the two Supreme Court justices, Justice Adeniyi Ademola of the Federal High Court in Abuja was also arrested after his house was raided. The security operatives also searched Justice Nnamdi Dimgba’s house, but he was not arrested.
In Port Harcourt, the Rivers State capital, the DSS operatives besieged the house of a Federal High Court judge at No. 35, Forces Avenue, but were thwarted by Governor Nyesom Wike, who rushed to the scene and was reportedly harassed by the operatives.
The suspended Presiding Justice of the Court of Appeal, Ilorin Division, Justice Mohammed Ladan Tsamiya, Justice Kabiru Auta of Kano State High Court were also said to have been arrested while the residences of the immediate past Chief Judge of Enugu State A. I. Umezulike in Enugu and that of Justice Muazu Pindiga in Gombe were reportedly raided.
DSS: Why they were arrested judges
The DSS on Saturday said its action was a “special sting operation”, adding that the arrested jurists would be charged to court. A DSS senior officer, Mr. Abdullahi Garba, 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.”
Are judges above the law?
According to the 1999 Constitution, judges have no immunity. But can they be arrested and prosecuted? The Third Schedule of the Constitution gives the National Judicial Council (NJC) powers to appoint and discipline corrupt judges.
The NJC is empowered to “recommend to the President the removal from office of the judicial officers … and to exercise disciplinary control over such officers; recommend to the Governors the removal from the office of the judicial officers … and to exercise disciplinary control over such officers.”
According to legal analysts, the implication of the constitutional provision is that where a judge is suspected of corruption, it behoves the NJC to discipline him by removing him from the Bench, following which he can be prosecuted.
Some have justified the judges’ arrest on the basis that Supreme Court justices are rarely disciplined, as if they are perfect or there are no corrupt elements among them, and because most judges found guilty of corruption are merely given a slap on the wrist and allowed to go home and enjoy their loot.
But, the Nigerian Bar Association (NBA) believes it was wrong to arrest the judges in the manner the DSS did.
Can a judge stand trial?
Explaining the quagmire of prosecuting a sitting judge, a former legal counsel at the World Bank Group, Mr Emeka Ugwuonye, said the scenario would be to first ensure that a judge leaves the Bench before putting him on trial.
“Because before sending a judge to prison, you must first remove him from being a judge, so that when he arrives in prison, he will not remain a judge.
“All the people in DSS cell today will either be released or charged to court. When charged to court, they will appear before judges. So, if you detain a judge in the same cell as the other people, what will happen tomorrow when they appear in the same court before the judge who was their cell mate?
“There is the presumption of innocence, which means that the judges will remain judges until they are proven guilty, which could be four years from today. So, it is important to first remove a judge as a judge before he is prosecuted.
“Otherwise, the same man will be standing criminal trial at a time he is still a judge. So, if his own case is coming up on Tuesday, he will serve as a judge on Monday, but on Tuesday, he will stand in the dock as an accused person. Then on Wednesday and Thursday, he will sit as a judge in the next courtroom.
“If the judge remains a judge (since he has not been removed as a judge) during the time that his own case is being tried, it is the same DSS prosecutors prosecuting him that will appear before him to prosecute other suspects.
“If you are a lawyer representing a suspect against the DSS in the court of this judge, who is also being tried by the DSS, you will fear that the judge would be too afraid of the DSS to render impartial judgment.
“It is odd, stupid, impracticable and unconstitutional to arrest a sitting judge for a common crime,” Ugwuonye said.
According to him, the law envisages that if a judge commits a crime, he has to be reported to the NJC, which disciplines judges. That body will dismiss the judge within six months if found culpable, after which he can be prosecuted, meaning that there is no possibility of him sitting at the same time as he is being prosecuted.
“Ironically, if you start criminal prosecution of a judge, the NJC cannot do anything until you finish the criminal trial, which can take four years. So, the best way for a judge to remain a judge for a long time is for you to start criminal trial rather than a disciplinary proceeding to remove him first.
“All over the world, there is a special procedure for dealing with a judge that committed a crime. The first step is to remove him as a judge so he will not remain a judge when his case is being tried,” Ugwuonye said.
How corrupt judges were dealt with elsewhere
A corruption scandal in the Ghanaian judiciary made the headlines in September, last year, following an exposé by an undercover investigative lawyer-turned journalist, Anas Aremyaw Anas.
He conducted a two-year investigation and brought out audio and video evidences of how corruption takes place within the Ghanaian judiciary.
Following the exposé, 22 circuit court judges and magistrates were suspended. Seven of the judges were among the most senior to be suspended in what was the biggest corruption scandal to hit Ghana’s judiciary.
Ghana’s Chief Justice Georgina Theodora Wood said Ghana’s Judicial Council had established a “prima facie case of stated misbehaviour against them”.
Last December, judges implicated in the judicial corruption scandal were sacked; one other was reprimanded.
In the state of Ohio in the United States, for instance, the Office of Disciplinary Counsel has a grievance form online. Once a complaint is filed, the Disciplinary Counsel investigates and gathers evidence. If the Disciplinary Counsel finds evidence of an ethical violation, it will file a formal complaint against the judge with the Board of Commissioners on Grievances and Discipline.
If the Board finds enough evidence of wrongdoing, it will then make a recommendation to the Supreme Court of Ohio, which will decide on disciplinary action ranging from a public reprimand, or limitation on the judge’s duties, to disbarment.
In Alabama judges may be removed in one of two ways: The judicial inquiry commission investigates complaints against judges and files complaints with the “court of the judiciary”. The court of the judiciary may censure, suspend, or remove a judge. Decisions of the court of the judiciary may be appealed to the Supreme Court. Judges may be impeached.
In Alaska, judges may be suspended, removed from office, retired, or censured by the Supreme Court upon the recommendation of the commission on judicial conduct. Judges may be impeached by two thirds of the senate and convicted by two thirds of the House of Representatives.
In Arizona, a judge may be impeached by a majority vote of the House of Representatives and convicted by a two-third vote of the senate; or the Supreme Court may censure, suspend, remove, or retire a judge upon the recommendation of the commission on judicial conduct, and judges are subject to recall election.
Where federal judges are involved, judicial councils, which are panels of the United States federal courts, handle such disciplinary issues within their circuits. The judicial discipline process of US federal judges is initiated by the filing of a complaint, following which a special committee investigates the facts and allegations in the complaint. The committee then files a comprehensive written report of its investigation with the judicial council of the circuit involved.
There have also been instant arrests. In 2013, nine traffic court judges in Philadelphia were arrested for fixing tickets for friends and political allies in a sweeping federal indictment that alleged pervasive, but covert, corruption in the courthouse.
Federal officials alleged “a widespread culture of giving breaks on traffic citations to friends, family, the politically-connected and business associates.”
Virtually everyone who wore the robe in the city’s traffic court between July 2008 and September 2011 were arrested and forced to stand on the other side of the bench after being accused by federal prosecutors of cheating the average citizen out of a fair shake.
Last November 4, the FBI arrested a North Carolina judge for bribery and corruption after he allegedly attempted to bribe federal agents. A superior Puerto Rico judge was also arrested in May 2014 for bribery in a fatal drunk driving case.
NBA’s position
NBA President Abubakar Mahmoud declared ‘a state of emergency’ in the judiciary and demanded the immediate release of the justices and judges without conditions.
At a briefing in Lagos, he warned the Federal Government of “grave consequences” should the demands not be met.
“If these demands are not met, there will be grave consequences that will follow and we do not want us to get to that situation,” Mahmoud said.
The association also set up a Crisis Management Team which comprises the association’s past presidents and general secretaries to investigate the situation.
The NBA president said: “I want to, on behalf of the Bar Association, make the very following clear and unequivocal demands: we demand the immediate, unconditional release of all the judges abducted.
“The release must be done immediately and without any conditions. Two, we demand that the Department of State Services (DSS) should limit itself to its statutory and constitutional responsibilities.”
Condemning the arrests, Mahmoud said: “This style of operation is not acceptable under a democracy. Whatever the justifications, whatever the complaints, there are legitimate routes and due processes must be observed.
“If there are any legitimate complaints against any serving justice, there are constitutionally-laid out procedures and there are rules that govern these.
“We expect the government to take legal counsel from appropriate officers of the government including the Attorney-General of the Federation who is there to guide them.”
Lawyers express anger
Lawyers have condemned the arrests. Chief Mike Ozhekome (SAN) said: “Welcome, full-blown dictatorship and fascism that are now here with us. It started with political opponents and opposition. Some of us cried out. Many gloated with eclat and a sense of victory at opponents’ horrific travails.
“Now, the judiciary, up to the very apex court of the land, the Supreme Court, has been targeted and is now being intimidated, humiliated and annexed. The earlier Nigerians rise up and speak against this latest onslaught on the judiciary, the better for all of us and democracy. I am greatly troubled for my dear country.”
Activist-lawyer Ebun-Olu Adegboruwa called on lawyers to boycott the courts. He said: “It is condemnable for the DSS, which is an arm of the executive, to be breathing down on the judicial arm of the government, under the guise of fighting corruption. It is now clear without any shadow of doubt that the so-called anti-corruption war is a hidden agenda to perpetuate the Gen Buhari regime in office beyond 2019. It is meant to silence the opposition and to cover the inefficiency and cluelessness of this administration.”
Executive Director of a rights group, Access to Justice (A2J), Mr Joseph Otteh, said: “Breaking into judges’houses, assaulting their relatives and arresting them at that time of night over-reach the boundaries of how the DSS can legitimately conduct its business in a democratic government.
“President Buhari’s government must respect the rule of law and the independence of the judiciary and must rein in the excesses of its agencies. The government must denounce the actions of the DSS, investigate this assault on the judiciary, express its regrets and reassurances to the judiciary and ensure that those who authorised these assaults on judges and their households are disciplined.
“The government must further address concerns that its agencies may be using the investigation of corruption allegations as a means to cower judges, and cajole them into silence, or as a way to intimidate judges who question the administration’s fledgling respect for the rule of law and court orders. The President must assure Nigerians that the judiciary will never, again, during his administration, be denigrated in this manner.”
Chief G. A. Adetola-Kaseem (SAN), said: “The invasion of a judge’s (and indeed any citizen’s) home at any time and worse still in the wee hours of the night, by any arm of the law enforcement agencies without following the due process of the law, is condemnable in the strongest language.
“It amounts to intimidation of judges and therefore impinges on the independence of the judiciary and rule of law. In these days of kidnapping and general insecurity, it erodes the ordinary citizen’s confidence in the ability of the State to guarantee his security at all times.”
Dr. Paul Ananaba (SAN) said the DSS should have followed due process and allowed the NJC to perform its statutory duty.
“Our judges are not above arrest but issues concerning judges, procedure and how they should be handled, the National Judicial Council (NJC) is there statutorily to look into the issue.
“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.
“I believe that it could have been done in a more honourable manner, because these are honourable justices,” he noted.
Activist-lawyer Femi Falana (SAN) yesterday accused the Nigerian Bar Association (NBA) of shielding corrupt lawyers and judges.
He said the judiciary has itself to blame for the “embarrassing” arrest of some judicial officers.
“The Nigerian Bar Association, which has information on all corrupt judges and lawyers in the country have continued to shield them to the embarrassment of incorruptible members of the bar and the bench. The few lawyers who have plucked up the courage to expose corrupt judges and lawyers have been stigmatised and treated like lepers by their colleagues.
“Having failed to take advantage of the relevant statutory disciplinary bodies to purge the bar and the bench of corrupt elements the members of the legal profession have themselves to blame for the harassment of judges by security forces,” Falana said.
NBA Vice President, Monday Ubani, said: “I want to say that corruption must be fought with the last drop of blood we possess to reclaim Nigeria irrespective of class, creed and religion but I advise that we must please follow our laws strictly and diligently in order to attract the support of the majority.
“We must exorcise corruption from all our institutions including from the executive and the fight must remain total and impartial.”
Abuja lawyer Nnaemeka Nwaogwugwu condemned the invasion as tantamount to intimidation of the judiciary.
He said: “It remains a shameful dent on this administration to be intimidating the judiciary. If there is a solid reason based on investigation to indict any federal judge, such findings should be passed on to the NJC for appropriate sanctions.”
The Committee for the Defence of Human Rights (CDHR) President, Malachy Ugwummadu, condemned the DSS action, saying Nigerians would resist it.
He said: “This is one misadventure too many and will be decisively resisted by all well-meaning Nigerians, particularly those of us and groups who struggled hard for the return of constitutional democracy in Nigeria.”
The Legal Defence and Assistance Project (LEDAP), through its National Coordinator, Chino Obiagwu, said: “LEDAP condemns in strongest terms the raid of residences of some judges accross the country, and the arrest and assault in some of them. The night raid is a flagrant assault on the rule of law and interference with the integrity and independence of judges. It amounts to crass intimidation of judges, which is the first line of attack of dictatorships.
‘DSS acted within the law’
Activist-lawyer Mr Jiti Ogunye justified the arrests. Speaking during a programme on Channels TV on Sunday, Ogunye said the DSS operatives acted within the law. He said the operatives were right to carry out the operation in the night, and that the law backed them to break into any house where the suspect was uncooperative.
He said: “Everyone agrees that we have ethical problems bothering on corruption in the judiciary. The late Justice Kayode Eso stated that it was very shameful that there were ‘billionaire judges’.Chief Afe Babalola also echoed it recently.
Until the isolated recmmendation that Justice Auta be prosecuted, how many times has the NJC recommended anybody for prosecution?
‘’As to whether what the DSS has done is within the ambit of the law, let me first dismiss what the learned SAN (Mike Ozekhome) has said. He’s quoting an old law.
‘’I refer to Section 148 of the Administration of Criminal Justice Act 2015. It says: ‘A search warrant may be issued and executed at any time any day, including a Sunday or public holidays.’’’
Ogunye further refer to Section 12 (2) of the ACJA, which provides: “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.’’