Judging the Judges
Over the weekend, the Department of State Security (DSS) in Nigeria carried out a ‘sting operation’ in various parts of Nigeria, arresting several judges in the process. This has drawn a lot of comments and criticism from the Nigerian polity. This article is an unbiased glance at the details of the operation, a review of the legitimacy of this act and some effects.
Section 3 of the National Securities Agencies Act, the Act from which the Department of State Security Services (DSS) derives its power provides:
‘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.
(4) The provisions of subsections (I), (2) and (3) of this section shall have effect notwithstanding the provisions of any other law to the contrary, or any matter therein mentioned.
(5) In this section, "classified matter" has the same meaning assigned thereto in section 9 of the Official Secrets Act.’
A significant question to ask then is, what is ‘internal security’? A common place definition of Internal Security is ; ‘the state of law and order prevailing within a nation’. (Dictionary of Military and Associated Terms. US Department of Defense 2005)
Therefore, it is safe to say that the DSS is also saddled with ‘… such other responsibilities affecting the state of law and order prevailing within Nigeria…’. The powers of the DSS legitimately includes the ability to investigate and prevent any crime that is non-military classified concerning the state of law and order in Nigeria. By inference, the DSS enjoys the endorsement of statute to investigate and arrest any citizen in Nigeria whose actions or inactions affects the state of law and order in Nigeria. The allegation of bribery of the judiciary certainly qualifies as actions or inactions that affect the state of law and order in Nigeria.
Why is there a public outcry trailing the exercise of this power by the DSS on Judges? The grouse of several commentators on this matter, which includes the Nigerian Bar Association which issued a statement at a press conference which was addressed by the President of the association Abubakar Balarabe Mahmoud, OON on the 8th of October 2016 in Lagos, where he condemned the action of the DSS and demanded that President Muhammadu Buhari calls the security agencies responsible for these actions to order. He stated that the view of the association is that the actions of the DSS were illegal and unconstitutional and ‘a threat to the independence of the Judiciary’ and must be aimed at intimidating the judiciary and the legal profession.
According to the Vanguard 13th of October 2016, Chief Afe Babalola (SAN), a notable legal luminary, described the arrest of judges by the DSS as an affront on the independence of the judiciary.
In the publication, Chief Afe Babalola was quoted to have said ‘I am particularly saddened by the arrests. How can they be so treated like criminals? The fact that the DSS released the judges the next day showed that they did not evade arrest. Why should they humiliate them in the first instance? It is a trite law that process arrest warrant, they should not have gone on midnight raid of the houses of the judges’
The Nigerian Senate in a statement on the 11th of October 2016 also condemned in very strong terms, ‘the draconian invasion of the homes, subsequent arrest and detention of serving judges by the Department of State Security Service, DSS without recognizing the constitutional responsibility of the National Judicial Council, NJC’. (Vanguard 13th October 2016)
Most of the criticism was hinged on the usurpation of the powers of the NJC, threat to the independence of the judiciary and contravention of the doctrine of separation of powers .
For readers who may be unaware of what seperation of powers connotes, ‘the separation of powers is a fundamental pattern for governance of any country. This pattern is the most important constitutional constituent in any country throughout the globe. When we hear the term separation of powers we immediately understand that it consists of three branches in most countries. The separation of powers is a pure model of democratic societies and it consists of executive, the legislature and judiciary branches. The separation of government responsibilities into different branches commonly limits them from exercising the fundamental functions of each other. The reason is to stave off the concentration of power on one branch and to diversify the government’s liabilities’(UK Essays. November 2013. Historical Development Of Separation Of Powers Constitutional Law Essay. [online]. Available from: https://www.lawteacher.net/free-law-essays/constitutional-law/historical-development-of-separation-of-powers-constitutional-law-essay.php?cref=1 [Accessed 13 October 2016].)
The core essence of the doctrine of separation of powers is to prevent a democratic government from becoming tyrannical.
The Section 4, 5 and 6 of the 1999 Constitution of the Federal Republic of Nigeria as amended provides for the powers of the Legislature, the Executive and the Judiciary respectively, establishing the doctrine of separation of powers in the Nigerian Constitution. Many constitutional law specialists and law experts have complained of the defectiveness and impracticality of the codification of the doctrine of separation of powers in the Nigerian Constitution on several grounds, especially the fact that the executive arm retains the power to appoint judges, even though the appointment of judges is still based on the recommendation of the judicial councils, either of the federal of the state. Another criticism of the doctrine of separation of powers as it is currently laid out Nigerian Constitution is the fact that the Judiciary was not created to be financially autonomous. As the saying goes, he who pays the piper dictates the tune and even the lyrics (my adaptation)
Section 153 of the 1999 Constitution of the Federal Republic of Nigeria creates the National Judicial Council (NJC) and the State Judicial Council and Paragraph 21 of Part One of the Third Schedule to the 1999 Constitution of the Federal Republic of Nigeria, as amended saddles the NJC with the responsibility; to make recommendations to the President on the appointment of Judges, Kadis and Presidents of the Customary Courts of Appeal of the States and other judicial officers; recommend the removal from office of judges and the exercise disciplinary control of judicial officers; collect, control and disburse all moneys, capital and recurrent, for the judiciary (which usually comprises of funds approved by the President or Governor); advise the President and Governors or any matter pertaining to the judiciary as may be referred to the Council by the President or the Governor, appoint, dismiss and exercise disciplinary control over members and staff of the Council; control and disburse all monies, capital and recurrent; for the services of the Council; and deal with all other matters relating to broad issues of policy and administration.
The NJC exercises its disciplinary powers to remove judges by recommendation to the Governor or President. The power of the NJC to ‘exercise disciplinary control of judicial officers’ and recommendation of disciplinary measures to the Governor or the President is seemingly founded on the principle that one who hires (or in this case recommends for hire) has the right to fire (or in this case recommend for fire). This is apparent because the disciplinary powers of the NJC over judges and other judicial officers is limited to removal from office and the termination of the appointment of the judge or judicial officer or the withdrawal of privileges enjoyed by such a judge or judicial officer by virtue of the appointment and no more. It is a pedestrian fact that any allegation of a criminal dimension, even if reported to the NJC, or forms the basis upon which a disciplinary decision is reached by the NJC must still be investigated and tried by the relevant apparatus of the state.
The fact that the accused person is a judge is irrelevant. In fact, the NJC has advised the state to prosecute several judges, most recent is Hon. Justice Kabiru M. Auta of the Kano State Judiciary, whom the NJC directed that should be handed over to the Assistant Inspector-General of Police, Zone 1, Kano, for prosecution after his removal as a Judge from the Kano State Judiciary.
Therefore, the power of the DSS to investigate, arrest and try a judge is not curtailed by or parallel to the powers of the NJC.
The judges have not been arraigned or tried yet, hence considering the legitimacy of arraignment or trial and who ought to initiate such prosecution is premature as at the date of writing this article.
Other commentators on the matter have said ‘search warrants validly issued by a court of competent jurisdiction are only executed between 6am and 6pm and that the midnight operation was illegitimate. It is worthy to state at this point that a provision of the law on search warrant, Section 111 of the Criminal Procedure Act 2004 provides that a search warrant ‘shall be executed between the hours of five o'clock in the forenoon and eight o'clock at night but the court may, in its discretion, authorise by the warrant the execution of the warrant at any hour’.
No subsisting law affecting the DSS states the contrary. Hence the position held by many that the execution of the warrant at midnight is unlawful may not be accurate if the warrant prescribed the search to be conducted at midnight.
It is unclear if reasonable suspicion was established against all the accused judges before the sting operation was carried out. However, in the cases of Justices Kabir Auta of the Kano High Court, Muazu Pindiga of Gombe High Court, Mohammed Tsamiya of the Court of Appeal in Ilorin, and the former Chief Judge of Enugu State, I. A. Umezulike, in which the NJC had initiated and concluded disciplinary actions on facts that are criminal in nature , have reasonable suspicion established against them. For the others, facts emerging reveal that there was reasonable suspicion contained in the petitions written to the DSS by the office of the Attorney General of the Federation. It is the position of the law that where reasonable suspicion is not established, acts such as the one carried out by the DSS will be a breach of Fundamental Human Rights (Section 35 (1) (c) of the Nigerian Constitution 1999 as amended) and will therefore be illegitimate. It is also my presumption that the DSS also scales this hurdle in this case
On the side of the Nigerian Government, the Vanguard on the 11th of October 2016 reported that the Attorney General of the Federation , Mr Abubakar Malami, who shunned a valedictory court session which the Supreme Court held in honour of one of its retired Justices, Suleiman Galadima, but attended the Expert Review Committee on implementation of the United Nations Convention Against Corruption (UNCAC) when asked about his view on the raid and subsequent arrest of seven superior court Judges, including two Justices of the Supreme Court, Malami said:
“Was there an allegation of crime? Was there relevant provision of criminal procedure responsible for investigation? “Is there an allegation of corruption? If there is, no body, no matter how highly placed will be spared. “The right to investigate has not been taken away from the constitution. The allegation boarders on criminality and no one is or should be above the law. “Neither the judiciary or the executive will be exempted from investigation”,
Strictly speaking, from my review of the law, the statements of the AGF above is justifiable stricto senso.
The sting operation by the DSS which led to the arrest of Justices Inyang Okoro and Sylvester Ngwuta, both of the Supreme Court, Adeniyi Ademola of the Federal High Court Abuja, Kabir Auta of the Kano High Court, Muazu Pindiga of Gombe High Court, Mohammed Tsamiya of the Court of Appeal in Ilorin, and the former Chief Judge of Enugu State, I. A. Umezulike was carried out at midnight was without prior invitation of the judges .
Now me introduce some of the judges arrested ;
Justices Inyang Okoro and Sylvester Ngwuta were in the Supreme Court panel that sat on the election petition that ruled in favour to Governor Nysom Wike of Rivers state in January 2016.
Justice Adeniyi Ademola delivered judgment affirming the election of Stella Odauh, Andy Uba, Mrs. Margery Okadigbo, Chris Azubogu of the PDP in a suit filed against them by one Annie Okonkwo complaining of the manner in which they emerged as the PDP candidate in July 2016. His Lordship is the judge who deferred the suit filed by one Chukwudiake Okafor and Donald Daunamigba seeking to challenge the competence of General Buhari to contest in the general elections till well after the elections in March 2015. Justice Adeniyi, was under fire from chieftains of the ruling All Progressives Congress (APC) for endorsing a suit challenging President Muhammadu Buhari’s eligibility to contest the 2015 presidential election. Justice Adeniyi dismissed a preliminary objection filed by President Buhari against a suit by an Abuja based lawyer, Mr. Nnamdi Nwokocha Ahaiiwe, challenging his (Buhari’s) eligibility to contest the presidential election on the ground that he does not have a school certificate, the basic educational qualification set out by the Constitution for a candidate seeking to run for the office of President. This suit was later withdrawn bythe Plaintiff, Mr Ahaiiwe.
Justice Kabir Auta was a High Court Judge in Kano state Judiciary allegedly connived with a woman and duped former minister of education, Malam Ibrahim Shekarau of the sum of $60,000 and Alhaji Yakassai of N125,000,000 and other sums of money. He is accused of conniving with a woman (now at large) who pretended to be Justice Miriam Aloma Mukhtar, the erstwhile Chief Justice of Nigeria and approached Shekarau and other unsuspecting Nigerians and solicited funds towards building a befitting mosque at the premises of the Supreme Court, Abuja amongst other fictitious tales. He has been arrested in the past on these allegations. (www.naij.com, breaking.com.ng),
In the case of Justice Muazu Pindiga, on September 11, 2015 Sahara Reporters published an expose revealing that the Muazu Pindinga heading the governorship election tribunal in Rivers State had allegedly received a bribe of N200 million from Governor Nyesom Wike to pervert the course of justice.
Mu’azu Pindiga, was then removed as head of the election petition tribunal and reassigned to another tribunal. Despite his removal from the governorship tribunal , Justice Pindiga was said to have gone ahead to deliver verdicts against the APC, validating all the legislative results called by the Independent National Electoral Commission (INEC) in Rivers State.
Justice Mohammed Tsamiya, was recommended to President Muhammadu Buhari by the NJC for compulsory retirement from office over allegations that he met with a party to a case before him, Nnamdi Oji, three times and on each occasion, demanded the sum of N200m to influence the Court of Appeal panel in Owerri, which sat on election cases that arose from the 2015 general elections. (punchng.com)
Justice A. Umezulike, the NJC had recommended the compulsory retirement of the Chief Judge of the state, Justice Umezulike, for delivering judgment in a case 126 days after final addresses were adopted by parties, and for other instances of abuse of office. Justice Umezulike, during his book launch, allegedly received a donation of N10m from a businessman, Prince Arthur Eze, while two cases in which Eze was said to have had “vested interest”, were in the judge’s court.
Most of the judges arrested, especially Justices Inyang Okoro, Sylvester Ngwuta , Muazu Pindinga and Justice Adeniyi Ademola who have in recent times delivered rulings and judgments against the ruling party’s interests , a perception that the arrests were merely as a result of a vendetta of the ruling party, APC is an undercurrent that cannot be ruled out.
The antecedents of Nigerian law enforcement agencies, who arrest an accused person without prior investigation or empirical proof of the offence then proceed to hunt for evidence after the arrest, may have led to the manner in which the arrest of the judges was carried out. It is probable that the manner in which the operation was carried out was borne out of strategy of the DSS to obtain and preserve evidence to be used in the prosecution of the judges before such evidence is destroyed or dissipated.
The effect of this action on the judiciary is quite obvious. The fear of giving rulings and judgments against the Government or the ruling party’s interests may have crystallized in the hearts of several judges and this spells doom for the impartiality and fairness in the decisions of the judiciary. This will certainly have rippling effects in many segments of our society and most frightening is the outcome of this on the criminal trials instituted by the government against its political opponents.
The judiciary may now display a handicap in giving rulings and judgments against the government and the ruling parties’ interests even if this is what the guiding principles of the law dictate.
In conclusion, the scale of justification of the actions of the DSS is weighted on two grounds; the desire of the DSS to execute the arrests of the judges in the manner it was conducted to allow the state to have a chance to establish the crimes alleged against the judges and convict the judges one one part; and the brazen display of executive power against the judiciary and the display of the torment of judges who tow the line of obstruction to the government and the ruling party’s interests on the other part. The tilting of this scale is left for your individual appraisal
Thank you for reading.