In his bestselling book, The Righteous Mind: Why Good People are Divided by Politics and Religion (2012), the American social and moral psychologist, Jonathan Haidt, who is presently a professor at the New York University, reminds us that human nature is not just intrinsically moral; it is also intrinsically moralistic, critical, and judgmental. In his words, our “righteous minds made it possible for human beings– but no other animals – to produce large cooperative groups, tribes, and nations without the glue of kinship. But at the same time, our righteous minds guarantee that our cooperative groups will always be cursed by moralistic strife. Some degree of conflict among groups may even be necessary for the health and development of any society.”
What I think Haidt is emphasizing here is the old proverb that birds of a feather flock together. Our stands on issues are influenced by how we are morally constructed, and, as such, we naturally fall into one grouping or the other on issues depending on how we are morally skewed. In encouraging us to tolerate the differing views of others on issues, Haidt has this to say:
If you think about moral reasoning as a skill we humans evolved to further our social agendas – to justify our own actions and to defend the teams we belong to – then things will make a lot more sense. Keep your eye on the intuitions, and don’t take people’s moral arguments at face value. They’re mostly post hoc constructions made up on the fly, crafted to advance one or more strategic objectives.
Nothing of recent brings us closer to this reality than the varied responses to the late-night raids by the operatives of the State Security Service (SSS) on some judges and justices in a sting operation they carried out on Friday, October 8, 2016, which rolled over to the early morning of Saturday, October 9, 2016.
Before those raids, the National Judicial Council (NJC) had, on Thursday, September 29, 2016, recommended the removal (from office) of the Presiding Justice of the Court of Appeal, Ilorin Division, Justice Mohammed Ladan Tsamiya, Chief Judge of Enugu State, Justice I. A. Umezulike, and Justice Kabiru M. Auta of the High Court of Justice, Kano State. While the NJC recommended the retirement of Justice Mohammed Ladan Tsamiya and Justice I. A. Umezulike, it recommended Justice Kabiru M. Auta’s dismissal from service with immediate effect and ordered him to be handed over to the Assistant Inspector-General of Police, Zone 1, Kano, for prosecution.
In the October 8 and 9 raids, the SSS arrested Justice Sylvester Ngwuta and Justice Inyang Okoro, both of the Supreme Court; Adeniyi Ademola, Judge of the Federal High Court, Abuja; and Muazu Pindiga Judge of the Federal High Court, Gombe Division. The attempt to arrest Mohammed Liman, Judge of the Federal High Court, Port Harcourt, was botched by the intervention or obstruction of Rivers State Governor Nyesom Wike. The raids and arrests also included the judges and the justice sanctioned by the NJC on Thursday, September 29, 2016 – suspended Presiding Justice of the Court of Appeal, Ilorin Division, Justice Mohammed Tsamiya; Justice Kabiru Auta of the Kano State High Court and former Chief Judge of Enugu State, Justice I. A. Umezulike.
Nigerians are unanimous in opinion on the need for the Government to fight corruption. Corruption–an act undertaken to give some advantage inconsistent with official duty and the rights of others, or an act of an official or fiduciary person who unlawfully and wrongfully uses his/her station or character to procure some benefit for himself/herself or for another person, contrary to duty and the rights of others – is a major reason for the recession Nigeria is currently grappling with. The pervasiveness of corruption in the country is not entirely out of lack of laws to fight the malaise. The country has enacted laws and established institutions dedicated to the punishment of individuals engaged in corrupt practices and other related offences, like bribery and extortion. The country has gone further to adopt necessary legislative and other measures that empower these agencies and the courts to curb corruption. Besides the Code of Conduct Bureau/ Code of Conduct Tribunal, there is the Independent Corrupt Practices and Other Related Offences Commission (ICPC), established by the Corrupt Practices and Other Related Offences Act, 2003. The ICPC is empowered to discharge its functions independent of the direction or control of any other person or authority. The ICPC principally deals with offences of accepting gratification by public officials from persons seeking to obtain a contract, license, permit, employment or anything whatsoever from a Government department, public body or other organisation or institution in which that public officer is serving as such. There is also the Economic and Financial Crimes Commission (EFCC) established by the Economic and Financial Crimes Commission (Establishment etc.) Act, 2004, responsible for the investigation and prosecution of persons engaged in economic and financial crimes.
The powers of the EFCC, as enumerated in section 6 of its enabling Act, are so extensive that it is not clear where and how the State Security Service (SSS) has space to be involved in the war against corruption. Granted that section 6(j) provides for the EFCC to collaborate with government bodies – both within and outside Nigeria – carrying on functions wholly or in part analogous with those of the Commission concerning (i) the identification, determination of the whereabouts and activities of persons suspected of being involved in economic and financial crimes;(ii)the movement of proceeds or properties derived from the commission of economic and financial and other related crimes;(iii)the exchange of personnel or other experts;(iv)the establishment and maintenance of a system for monitoring international economic and financial crimes in order to identify suspicious transactions and persons involved;(v)maintenance of data, statistics, records and reports on persons, organisations, proceeds, properties, documents or other items or assets involved in economic and financial crimes; (iv) undertaking research and similar works with a view to determining the manifestation, extent, magnitude and effects of economic and financial crimes and advising government on appropriate intervention measures for combating same. But, as demonstrated by the said raids, the activities of the SSS go beyond collaborating with the EFCC. It has become a full-blown anti-corruption agency.
Nigerians are naturally divided over this new role of the SSS as an agency against corruption and its raids against the listed judges and justices in particular. Some of the views are – for obvious reasons suggestive of currying favour– are very patronizing, if not condescending, to the judiciary; while some are moralistic. I have, for the whole of my practice life, advocated –and agitated for – respect and protection for the judiciary. I believe that judges deserve the same reverence and regard given to the President and Governors. I have written protest articles when barbaric executives molest judges or disregard their orders and authority. While I have never supported the bad eggs in the judiciary, I have regularly expressed the view that judges are over-scrutinized and that the public is taking for granted the great job the NJC has been doing over the years. Looking at the disciplinary scorecard published in response to the raids, it is clear that the NJC has, over the years, made efforts to rid the judiciary of erring judicial officers. In its words,
From the year 2000, when the National Judicial Council held its inaugural Meeting, to 2016, 1808 petitions and complaints against Judicial Officers, including Chief Justices of Nigeria, Justices of Supreme Court and Court of Appeal, were received by the respective Honourable, the Chief Justices of Nigeria and Chairman of the National Judicial Council. Eighty-two (82 No.) of the Judicial Officers were reprimanded (suspension, caution or warning), by Council, in the exercise of its exclusive Constitutional Disciplinary power over Judicial Officers. Thirty-eight (38 No.) of the Judicial Officers were recommended to the President or Governor, where applicable, for compulsory retirement from office; while twelve (12 No.) were recommended to the President or Governor, as the case may be, for dismissal from office.
I have also advocated for the Nigerian Bar Association (NBA) to support the efforts of the NJC by also disciplining members of the Bar who are involved in bribing judges and justices. It [is ] in this spirit that I intend to make my intervention on the legal issues raised by the raids of the SSS by proffering answers for the following questions:
- Does the SSS have the statutory backing for its involvement in the war against corruption?
- Were the raids on the judges and justices supported by law or conform to due process?
- Do the raids constitute interference with the independence of the judiciary?
- Are there better options available to security agencies than raiding the judges and justices?
- Does the SSS have the statutory backing for its involvement in the war against corruption?
It may be noted that the question or issue is not whether or not the SSS has prosecutorial powers over corruption matters. If that were the case, it is to be noted that even without specific provisions like section 30 of the Prevention of Terrorism Act 2011; the SSS can obtain fiats from the Attorney-General of the Federation (AGF) to prosecute corruption matters and other matters within the competence of the AGF. The extensive prosecutorial powers of the AGF stipulated in section 174 of the Constitution are instructive. What is in issue is the investigative or investigatory powers of the SSS – the authority of the SSS to investigate violations of Federal laws, or gather evidence for the prosecution of suspects in superior courts of record by the Attorney-General of the Federation or any other agency of the Federal Government with prosecutorial powers.
The Nigeria Police Force has always been the principal crime prevention agency of the country and largely responsible for its internal security. It has had its hands in immigration, prisons, customs, traffic management and paramilitary services. In reaction to the coup that consumed General Murtala Mohammed, General Olusegun Obasanjo, who succeeded him as Head of State, established the National Security Organization (NSO) from the police and military intelligence in 1976 to coordinate internal security, foreign intelligence, and counterintelligence activities. The NSO “was charged with the detection and prevention of any crime against the security of the state, with the protection of classified materials, and with carrying out any other security missions assigned by the President.” “Following the 1985 military coup that brought Ibrahim Babangida to power, the NSO was dissolved into three separate divisions per the provisions made in Decree 19: State Security Service (SSS) – Responsible for domestic intelligence; National Intelligence Agency (NIA) – Responsible for Foreign intelligence and counterintelligence operations; and Defence Intelligence Agency (DIA) – Responsible for military intelligence.” The disbandment of the NSO and the creation of the three security agencies, charging each with the conduct of the relevant aspect of the national security, and related matters under decree 19 of 1986 was retained by the National Security Agencies Act, Cap. 278 of the Laws of the Federation of Nigeria, 1990 or Cap N74 Laws of the Federation of Nigeria 2010.
The specific duties of the SSS are spelt out under section 2, subsections (3) and (4) of the National Security Agencies Act, Cap. 278 of the Laws of the Federation of Nigeria, 1990, thus:”2.(3) The Stale 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, Commander-in-Chief of the Armed Forces, as the case may be, may deem necessary. By virtue of Section 2, Subsection 4 of the Act, the functions of the SSS cannot be overridden by any other law.
Pursuant to the said statutory functions,
The SSS is also charged with the protection of the President, Vice-President, Senate President, Speaker of the House of Representatives, State Governors, their immediate families, other high-ranking government officials, past Presidents and their spouses, certain candidates for the offices of President and Vice President, and visiting foreign heads of state and government. The SSS has constantly adapted to various roles necessitated by evolving security threats in Nigeria including counter-terrorism and counter-insurgent.
As stated above, the public is bothered that besides protecting and defending Nigeria against domestic threats, the SSS has now assumed the responsibility of upholding and enforcing the criminal laws of the country, and of providing leadership and criminal justice services to federal law-enforcement organs.
Although the NJC alluded that the SSS outstepped its statutory functions when it said that “the Department of State Services is an Agency in the Presidency and its functions, as specified in the statute establishing it, is primarily concerned with the internal security of the Country”, internal security is not a legal term but a sociopolitical term. This fluid nature of the term allows for definitions of convenience. The view that there is a relationship between corruption and national security is popular within the elite class, particularly social scientists. Writing in Thisday of November 17, 2015, Okechukwu Emeh, Jr, an Abuja-based social researcher, stated that:
Disturbingly, the current trend around the world has shown a strong correlation between widespread embezzlement of public funds and noticeable deterioration in internal security situations (ISSs) of many developing countries, especially those in Africa, including Nigeria. For example, the nagging problems of crime, criminality, and violence in affected countries are partly attributed to privation and deprivation induced by rampant corruption and the attendant mass poverty, misery and desperation. On this account, a casual nexus can be established between siphoning of public monies and escalating level of criminal violence like armed robbery, kidnapping, insurgency, militancy and terrorism in Nigeria.
Way back in 2013, Kayode Oyedele, analysed the relationship between corruption and National Security in the following words:
The relationship between corruption and national security is causal in a number of ways. While some have attempted to argue that corruption is not necessarily de-developmental or anti-developmental, in the long term, none of the functionalist proponents of corruption would say corruption is developmental. Corruption, among other things, reduces foreign direct investment (FDI) as international businesses which operate under global good business practices would try to avoid such markets. Second, corruption encourages violence in the sense that those that benefit from the process would do all they could to sustain their hold on political power. This sit-tight syndrome would mean that politics becomes a do-or-die affair. With this, all other bad governance features would materialise, providing the grounds for political instability which could easily take an ethnic dimension.
Apart from the attendant political instability which may also be characterized by politically motivated killings, corruption also generates unemployment. Funds that ordinarily should have been used to create employment are being siphoned and kept by an infinitesimal group of individuals who lodge the same funds in foreign banks, generating employment in foreign countries. The youths and the employable are therefore cheated and their future either mortgaged or encumbered. While some are frustrated and manage to live within the sphere that they have created for themselves, others embrace crime and criminality as represented by armed robbery, cultism, prostitution and stealing by false pretence, among other vices; while a sizeable percentage are also indoctrinated to embrace extremism and terrorism.
It is also pertinent to ask certain questions that speak to the role of corruption as a threat to national security. Why should custom officers clear illegal imports such as bombs and other contrabands into the country after receiving a token as bribe or gratification? Why should immigration officers at the country’s border posts allow illegal immigrants into the country after receiving bribes? What explains the escape of notorious criminals and kingpin of terrorist groups or militants from police custody? The fact that these unfortunate incidents happen from time to time demonstrates that extortive and institutional corruption poses serious consequences for national security in Nigeria.
John Kerry, United States Secretary of States analysed the relationship between Corruption and National Security in the 2016 World Economic Summit. Speaking specifically and directly to Nigeria, John Kerry stated that :
When Nigeria’s President Buhari took office last spring, he inherited the military that was under paid, under fed and unable to protect the Nigerian people from Boko Haram. And one reason is that much of the military budget was finding its way to the pockets of the Generals. Just this week, we saw reports that more than 50 people in Nigeria, including former Government officials, stole $9billion from the treasury. I use to be a prosecutor and I know how hard it is to hold people in position of public responsibility accountable. But I also know how important it is. The fact is there is nothing, absolutely nothing, more demoralizing, more destructive, more disempowering to any citizen than the belief that the system is rigged against them and that people in position of power are, to use a diplomatic term of art, crooks who are stealing the future of their own people. And by the way depositing the ill-gotten gain ostensibly in legitimate financial institutions around the world.
Corruption is a social danger because its feeds organized crime. It destroys nation States. It imperils opportunities, particularly for women and girls. It facilitates environmental degradation, contributes to human trafficking and undermines whole communities. It destroys the future; Corruption is a radicalizer because it destroys faith in legitimate authority, it opens up a vacuum which allows the predators to move in and no one knows that better than the violent extremist groups who regularly use corruption as a recruitment tool. Corruption is an opportunity destroyer, because it discourages honest and accountable investment. It makes business more expensive to operate. It drives up the cost of public services for local and tax payers and it turns a nation’s entire budget into a feeding trust for the privilege few. That is why it is imperative that the business community of the world starts to demand a different standard of behaviour if we are to deepen the fight against corruption, making it a first order national security priority…
The Presidency seems to have been advised –and seems to have accepted the advice – that corruption relates to and undermines the national security of the country. In the case of the judiciary, there is the belief that corruption in the judiciary has the tendency of killing public faith in the judiciary, and that if people lose faith in the judiciary, the option will be a breakdown of law and order. In many pronouncements, the courts also seem to have yielded to the assumption that corruption undermines the security of the state. Listen to Per Omokri JCA in Ultimate Inv. Ltd v. Castle & Cubicles Ltd (2008) All FWLR (Pt. 417) 124:
…It is important to mention that this is a time when the Nigerian nation is fighting the difficult battle against corruption in all its ramification. All hands should be on deck to eliminate or eradicate this social ill. Corruption or corrupt practices, if not checked, threaten the peace, order and good government. Uwais CJN (as he then was) in Attorney-General, Ondo State v. Attorney-General, Federation (2002) FWLR (Pt. 111) 1972) at 2070-2071, (2002) 9 NWLR (Pt. 772) 222 at 306 said: ‘Corruption is not a disease which afflicts public officers alone but society as a whole. If it is, therefore, to be eradicated effectively, the solution to it must be pervasive to cover every segment of the society.’ Mohammed JSC at page 2106 FWLR or page 347-348 of NWLR said: ‘It is quite plain that the issue of corruption in the Nigerian society has gone beyond our borders. It is no more a local affair. It is a national malaise which must be tackled by the government of the Federal Republic. The disastrous consequences of the evil practice of corruption have taken this nation into the list of the most corrupt nations on earth…’ Ogwuegbu JSC at page 2098 of FWLR or pages 337-339 of NWLR referred to the preamble of Chief Afe Babalola, SAN, in his brief in the appeal where he said: ‘It is a notorious fact that one of the ills which have plagued and are still plaguing the Nigerian nation is corruption in all facets of our national life. It is an incontrovertible fact that the present economic, morals and/or quagmire in which the country finds itself is largely attributable to the notorious virus which is known as corruption. This court is bound to take judicial notice of these facts and is so invited to so…’ It is from this background that I say that the ruling of the learned trial judge is commendable and it has the effect of sanitizing the polluted and corrupt society.
Now, let us, for the sake of moving on, concede that corruption falls within the mandate of the SSS to prevent and detect within Nigeria of any crime against the internal security of Nigeria and that the SSS can investigate matters or cases of corruption; can we then say that the raids on the judges and justices were supported by law? Can we say the late-night raids conformed with due process of law?
- Were the raids on the judges and justices supported by law or initiated and executed with the due process of law?
Unlike the President/Vice-President and the Governor/Deputy-Governor who are immune from criminal proceedings under Section 308 of the Constitution during the periods of their respective offices, judicial officers do not enjoy immunity from criminal processes/proceedings and investigative procedures.
While taking a step back to expatiate on this, it is noteworthy that the judiciary is the arm of Government created by the Constitution to execute the judicial powers vested in the courts of the land. The appointment of members of the judiciary or judicial officers and removal from office are constitutionally regulated the way the Executive and Legislative arms are regulated. Although it is common knowledge that they constitute the worst culprits of corruption, the President and Vice-President, the Governors and Deputy Governors enjoy immunity from arrest and criminal prosecution while in office. The argument is that the nature of their office calls for their insulation from prosecution. Although their offices are no less important, judicial officers do not enjoy absolute immunity from arrest and criminal prosecution. The limited immunity they enjoy is one that insulates them from prosecution for their judicial actions. As fallible human beings, it is natural and expected that they do sometimes make errors of judgment. Common sense, therefore, makes it imperative for them to enjoy legal immunity which protects them from liability resulting from their judicial actions. The immunity they enjoy extends to decisions or judgments which may have been contrary to law and morally reprehensible. This is why I do not support the view that judges who turn the law on its head in their judgment should be investigated. I have been wrongly called a carpenter for misstating the date of a judgment in a Notice of Appeal (Khaki v. Suswam) and my client’s Governorship petition was dismissed and I was denied audience and stripped of my license to practice law because I signed processes and announced my appearance in a tribunal as Sam Kargbo (JAFAR ABUBAKAR v. ALHAJI IBRAHIM HASSAN DANKWAMBO) A Governorship petition was dismissed because I applied by letter for the issuance of pre-hearing notice (1.MALAM ABUBAKAR ABUBAKAR v.1. SAIDU USMAN NASAMU). In all of these instances, I was guided by the principle and reasoning behind judicial immunity to follow up my grievances on appeal up to the Supreme Court where I enjoyed happy endings. Honourable Justice Dongban-Mensem had judicial immunity in mind when in the case of Att. – Gen., Lagos State v. Eko Hotels Ltd. (2008) ALL FWLR (Pt. 398) 235 he said:
May the day never come when Judges will be reduced to puppets as in working in the terms of who pays the piper dictates the tune. This will totally negate the principle of the rule of law enshrined in our Constitution. All Nigerians will be the worse off for it. Let me drum it out again, for the repeated time like ‘Abiku’, that by the nature of the oath of office taken by every judicial officer, independence is conferred on the individual Judge to do justice among the people of Nigeria… in accordance with the Constitution of the Federal Republic of Nigeria and the law…’ (Ref.: Judicial Oath, 7th Schedule 1999 Constitution of the Federal Republic of Nigeria). Any Judge who cannot uphold this oath of office should take an honourable exit rather than remain and pretend to dispense justice. If there is such a Judge, he or she shall one day be dispensed with by justice. Although a learned counsel appears for different parties to whom they owe some form of loyalty, allegiance with the cause of justice must always be paramount; they are always ministers in the sacred temple of justice. Lawyers particularly should have faith in the judicial system. The stratified nature of the hierarchy of the judiciary should put the minds of litigants at rest. The principle of the adversarial administration of justice entrenches fair hearing at the epicenter of the administration of justice in Nigeria. Every proceeding starts with one Judge at the trial, then three Justices at the Appellate stage as two heads are better that one. Then at the Supreme Court, we have learned Justices of proven prowess. If anyone should be doubted in this system, certainly, it should not be a learned counsel. We often run into difficulty when we look outside the law whenever we think the law is too slow. Learned counsels must encourage their clients and bear the torch of faith in the judicial system. The alternative is ugly, and none will survive, not even the perceived rich and powerful. Let us all consolidate and build upon the experience of the judicial arm with the democratic dispensation. No democracy will survive without the rule of law being applied equally to all in the courts of law and all persons, human, corporate and government alike.
Honourable Justice Karibi-Whyte J.S.C explains the limits of the immunity of judges and justices in Egbe v. Adefarasin (1985) NWLR (Pt.3)549; (1985) 5 S.C 50 in the following words:
The most recent statement of the position is in Sirros v. Moore (1974) 3 All E. R. 781 – 782, in this case, Denning MR, said,
“Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a Judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives and the sentences which he imposes cannot be made the subject of civil proceedings against him. No matter that the Judge was under some gross error or ignorance, or actuated by envy or hatred and malice and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus, or a writ of error or certiorari or take some such step to reverse his ruling. Of course, if the Judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal Courts. That apart, however, a Judge is not liable to an action for damages.(Emphasis mine.)
Proceeding on the premise that judges and justices are liable to criminal processes and investigative procedures, the next question to answer is whether or not the said raids were initiated and executed by the due process provided by law. According to the Black’s Law Dictionary 6th edition, due process of law is:
Law in its regular course of administration through courts of justice. Due process of law in each particular case means such an exercise of the powers of the government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs. A course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the enforcement and protection of private rights…
In our jurisprudence, any action not initiated by due process is considered a nullity. As Mohammed J.S.C puts it in NWORA& ORS v. NWABUEZE & ORS (2013) LPELR-20587(SC), “The law is well settled that for a Court to have jurisdiction in a matter, it must be commenced by due process of law and upon the fulfillment of any condition precedent to the assumption of jurisdiction. See Madukolu & Ors. v. Nkemdelim & Ors. (1962) 2 S.C.N.L.R. 341, Skenconsult v. Ukey (1981) 1 S.C 5 and Tsokwa Motors (Nig.) Ltd. v. U.B.A. Plc (2008) 2 N.W.I.R. (Pt. 1071) 347 at 367.”
There is a connection between criminal procedure and process on the one hand and the fundamental human rights of individuals enshrined in the constitution. In the case of arrest and searches, the immediate rights in consideration are the right to the dignity of the person (s. 34); the right to personal liberty (s.35); and the right to private and family life. The Constitution allows for the interference of personal liberty of a person for, among other reasons, the purpose of bringing him or her before a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his or her committing a criminal offence.
As from 2015, criminal procedure or criminal process in the High Court of the Federal Capital Territory and Federal High Courts is governed by the Administration of Criminal Justice Act, 2015. Under Section 3 of the Act, a suspect or a defendant alleged or charged with committing an offence established by an Act of the National Assembly shall be arrested, investigated, inquired into, tried or dealt with according to the provisions of that Act except otherwise provided under the same Act. In compliance with age-long campaigns of the Human Rights Commission (HRC)and in line with international human rights standards, the Administration of Criminal Justice Act (the Act), prescribes that law enforcement agencies treat suspects that come into their custody in a humane manner. The Act provides, in Section 5, that a suspect or defendant may not be handcuffed, bound or be subjected to restraint except (a) there is reasonable apprehension of violence or an attempt to escape;(b) the restraint is considered necessary for the safety of the suspect or defendant; or (c ) by order of a court. Section 8 provides that a suspect shall (a) be accorded humane treatment, having regard to his right to the dignity of his person; and (b) not be subjected to any form of torture, cruel, inhuman or degrading treatment.
The Act freely refers topolice officers or other persons when talking about the power or authority to make arrests whether with or without warrants of arrest. That is in keeping with the fact that the power or authority to arrest in criminal procedure is not limited to police officers. Whereas the powers and instances that a police officer can arrest without warrant are spelt out in section 18 of the Act, under Section 20, which are analogous to its power to arrest without warrant under Section 24 of the Police Act and Section 10 of the repealed Criminal Procedure Act, a private person may arrest a suspect in Nigeria who in his presence commits an offence, or whom he reasonably suspects of having committed an offence for which the police is entitled to arrest without a warrant. As far as the power to arrest without warrant is concerned, a private person has as much power to arrest as a police officer, except that the private person is enjoined to hand over the arrested suspect to the nearest police officer or the nearest police station. Where under law, there is power to arrest a suspect without warrant, a warrant for his arrest may be issued (s.35). A warrant of arrest may be issued on any day, including a Sunday or public holiday (s.38). A warrant of arrest may be executed on any day, including a Sunday or public holiday and at any time and in any place in any state other than within the actual courtroom in which a court is sitting (s.43). A search warrant may also be issued and executed at any time on any day, including a Sunday or public holiday (s.148).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, among other things, break open any outer or inner door or window of any house or place, whether that of the suspect to be arrested/searched or of any other person or otherwise effect entry into such house or place, if after notification of his authority and purpose, and demand of admittance duly made, he cannot obtain admittance (s.149).
Taking this background concerning susceptibility of judicial officers to criminal processes/procedure and investigative powers of law enforcement agencies and the position of the law as to who has power to arrest criminal suspects, with and without warrants of arrest, and when and how to effect search warrants the temptation is to make an offhand conclusion that there was nothing wrong with the raids of the judges and justices who are alleged to have involved in corruption. But the issue of whether the raids on the judges and justices are supported by law or initiated and executed with due process of law cannot be disposed of so easily.
There is the contention that being judicial officers, the SSS ought to have respected the constitutional controlling and disciplinary powers of the NJC over judicial officers. This contention is made out very clearly in the Press Release of the NJC in response to the raids. Recalling that:
The National Judicial Council is a creation, by virtue of Section 153 of the 1999 Constitution of the Federal Republic of Nigeria, as amended, with its powers specified in Paragraph 21 of Part One of the Third Schedule whereof; that by virtue of Section 160 of the 1999 Constitution, Council fashioned out: Judicial Discipline Regulations; ii) Revised NJC Guidelines and Procedural Rules for the Appointment of Judicial Officers of all Superior Courts of Record; iii) Code of Conduct for Judicial Officers of the Federal Republic of Nigeria; and iv) National Judicial Policy to inter-alia, regulate its own procedure while exercising its Constitutional Powers; that Section 158 (1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, has unequivocally provided for the independence of the National Judicial Council vis-à-vis directing or controlling it by any authority or person while exercising its powers”, the NJC “expresses its grave concern on the recent invasion of the Residences and arrest of some serving and suspended Judicial Officers by the Department of State Services (“SSS”); and condemned the action in its entirety; viewed the action as a threat to the Independence of the Judiciary, which portends great danger to our democracy; and also considered the action as a clear attempt by the SSS to humiliate, intimidate, denigrate and cow the Judiciary.
While presenting its own version of the background to the raids, the NJC highlighted that it had earlier dealt with competent petitions formally presented to it by the SSS and had allowed judicial officers to honour invitations that were routed through the Chief Justice of Nigeria (CJN), who is the chairman of the NJC. The NJC however categorically denied and emphasized that contrary “to the claim by the SSS and as published in the electronic and print media, Council has never received any petition against the aforesaid Judicial Officers: Hon. Justices Ngwuta and Okoro of the Supreme Court of Nigeria, by the SSS.” After a detail presentation of its version of the background to the raids and a consideration of the raids, the NJC noted among other things as follows:
Council meticulously considered the entire unfolding events that led to the arrest of the Judicial Officers and the misinformation and disinformation making rounds in both Electronic and Print Media that the SSS acted thus because the National Judicial Council was shielding the Judicial Officers from investigation and prosecution for corrupt practices and professional misconduct.
Council noted particularly, that from the available records the SSS forwarded only two (2 no.) separate complaints containing allegations of Corrupt Practices against Hon. Justice Pindiga; and corrupt practices and professional misconduct against Hon. Justice Dimgba.
The impression created and widely circulated before the public that the SSS 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. The Council urges the SSS to make public the particulars of such petitions to put the records straight.
Given the above background facts, on behalf of the Judiciary, Council is constrained to inform the general public that all petitions and complaints forwarded against Judicial Officers bordering on corrupt practices and professional misconduct, have been attended to and investigated, where applicable, by Council since year 2000 to date, within the powers conferred on it by the 1999 Constitution of the Federal Republic of Nigeria, as amended.
Therefore, any Judicial Officer that was reprimanded by Council or recommended for removal from office by compulsory retirement or dismissal to the President or Governor, was done in compliance with the Constitutional power, Rule of Law and Due Process.
The NJC concluded as follows:
That it maintains its earlier decision that no Judicial Officer shall be invited by any Institution, including the SSS, without complying with the Rule of Law and Due Process…That the National Judicial Council has never shielded nor will it shield any Judicial Officer who has committed any misconduct.
That the Department of State Services is an Agency in the Presidency and its functions, as specified in the statute establishing it, is primarily concerned with the internal security of the Country.
That the action of the SSS is a denigration of the entire Judiciary, as an institution.
That by the act of the SSS, Judicial Officers are now being subjected to insecurity, as criminals might take advantage of the recent incidents to invade their residences under the guise of being security agents.
The Council vehemently denounces a situation whereby the Psyche of Judicial Officers in the Federation is subjected to a level where they would be afraid to discharge their Constitutional judicial functions without fear or favour, intimidation, victimization or suppression.
The Council will not compromise the integrity and impartiality of the Judiciary.
The Council wishes to reassure the public that any person who has a genuine complaint against any Judicial Officer is at liberty to bring it up to the Council for consideration, after following due process vide its Judicial Discipline Regulations.
As can be noted from its Press Release, the NJC, which is making a case for and on behalf of the affected judges and justices, is not making a case against the investigative or investigatory powers of the SSS, neither is it making a case that the raids were without warrants. The case of the NJC is in effect that considering its constitutional powers, the efforts it has made over the years to protect the integrity of the judiciary by disciplining erring and corrupt members, and the cooperation it has given to the SSS and other security agencies, the raids were not only a dangerous slant and dimension but also violative of the independence of the judiciary.
The position of the NJC is well founded but does not provide an absolute, all-embracing answer to the question of whether the raids on the judges and justices are supported by law or initiated and executed with the due process of law. In the first place, the powers of the NJC are not exclusive of other criminal processes and procedure. As Karibi-Whyte JSC said in Egbe v. Adefarasin, supra, “if the Judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal Courts” and can only be prosecuted after being subjected to the normal and regular investigatory powers of the prosecuting authority or an agency of the Government authorised to do so.
To vitiate the actions of the SSS, the raids must be proven to have been activated or initiated without reasonable cause to investigate, search or arrest the affected judges and justices; to have been carried out without valid warrants; and actuated by malice. Such findings can ground cases in court for the affected judges and justices and not for the NJC. Since there is, at the moment, no conclusive proof of absence of reasonable and probable cause for commencing and prosecuting the raids and/or a proof of an improper purpose or motive which the courts have identified as an abuse or perversion of the system of criminal justice, we shall tentatively conclude that the initiation of the raids may be grounded in law. The final point, however, is whether their execution was within the confines and anticipation of the law. Were they protective of the fundamental rights of the judges and justices to human dignity, personal liberty and private and family life, considering that besides the arrest and searches, the alleged findings of the SSS during the search were all made public and followed by caustic and condemnatory public statements by the leadership of the SSS? For unexplainable reasons and out of character, the SSS there and then tried and condemned the affected judges and justices in the court of public opinion.
I got the impression that the arrests and searches were stage-managed and acted out to, using the words of the NJC, “humiliate, intimidate, denigrate and cow the Judiciary.” The manner of their execution has all the elements of a show of power. They were meant to carry the message that the SSS can break and subdue the judiciary. Visiting the affected judges and justices with such excessive and publicly dramatic force is outside the contemplation of the investigative powers of the SSS. The Constitution and the Administration of Criminal Justice Act are clear on the need for investigating officers to treat suspects humanely. Public shaming is a form of punishment and punishment is a power reserved for the courts and not the executive or any of its agencies.
The raids, therefore, did not comply with due process of law and are, accordingly, condemnable.
- Do the raids constitute interference with the independence of the judiciary?
We have made the point that the fact that the raids may have the imprimatur of the law in their initiation may not excuse them from further critical scrutiny. The next issue, therefore, is whether or not they constituted an interference with the independence of the judiciary. Judicial independence –“the concept that the judiciary needs to be kept away from the other branches of government; that is, courts should not be subject to improper influence from the other branches of government, or from private or partisan interests” – is provided for and entrenched in the 1999 Constitution of the Federal Republic of Nigeria. It may be noted that:
There are two types of judicial independence: institutional independence and decisional independence. Institutional independence means the judicial branch is independent from the executive and legislative branches. Decisional independence is the idea that judges should be able to decide cases solely based on the law and facts, without letting the media, politics or other concerns sway their decisions, and without fearing penalty in their careers for their decisions.
The NJC considered the brazen raids as a denigration of the entire Judiciary as an institution, and that by the act of the SSS, Judicial Officers are now being subjected to insecurity, as criminals might take advantage of the recent incidents to invade their residences under the guise of being security agents. According to the NJC, the goal of the raids is to humiliate, intimidate, denigrate and cow the Judiciary so as psychologically reduce them to a level where they would be afraid to discharge their Constitutional judicial functions without fear or favour, intimidation, victimization or suppression.
There is sense and basis for these conclusions. The SSS gave the impression that the investigations carried out against the affected judges and justices were prompted by their affluent lifestyles and also gave a hint that the NJC failed to act upon their petitions concerning judges and justices whom the SSS considers to be corrupt. Irrespective of our conclusion that the SSS may find a backing in law for their action, linking the raids to a supposed lifestyles and/or inaction or unsatisfactory handling of petitions submitted to the NJC by the SSS can pass for an attempt to dictate to the NJC on how it is to go about its business. The SSS cannot – out of speculation on the lifestyles of persons and frustration or desperation – stampede the NJC to go about its business in a certain way or in a way prescribed by the SSS. Interference with the judiciary can come in many forms, including acts meant to undermine – or that are capable of undermining – the independence of the judiciary. The SSS is under an onerous duty to uphold and observe the well-cherished principles of the rule of law, promote and foster the cause of justice, and maintain a high standard of professional conduct; and ought to know that disrespect to the judiciary, in whatever ramification, is antithetical to the rule of law, democracy and the well-cherished independence of the judiciary. The importance of a competent, independent and impartial judiciary in preserving and upholding the rule of law cannot be over emphasized. The rule of law and due process cannot or should not be corrupted to fight corruption. The importance of the fine lines of due process cannot be overemphasized. Rehumanising corrupt individuals require the ethereal principles of decency and respect for the sensibility of the public. Using crude and brawny methods to fight corruption will end up building a protective buffer around corrupt individuals from among the public.
The dramatized, and widely publicized nature of the raids dabs the entire judiciary with a brush of corruption and thereby erodes public confidence in the judiciary. As the courts themselves have said in a line of cases. “There is no iota of doubt that public confidence in the integrity of judicial officers that man the courts, and in the impartiality and efficiency of the administration of justice system, as a whole, unarguably contribute immensely in sustaining the judicial system of a nation.” The brawny manner in which the SSS handled the arrests of the affected judges and justices gave the impression that the SSS was waging war against the judiciary and not against corruption. The raids were not supposed to be raids pursuant to war against institutional corruption but against a small number (seven) of judges and justices from among thousands of judicial officials.
The raids constitute an undue interference with the independence of the judiciary. The SSS ought to know and should be reminded that the doctrine of separation of powers is the bulwark or anchor on which the survival of Nigeria as a nation must depend. While each arm of Government must respect the other arm in the interest of the smooth running of governmental machinery, such respect must never degenerate to the level of one arm being allowed to usurp or impinge on the exclusive domain of the other as spelt out in the Constitution.
- Are there better options available to security agencies than raiding the judges and justices?
There are one thousand and one better options available to the SSS and all security agencies involved in the war against corruption on how to deal with corruption in the judiciary. The first guiding principle is the realization that the judiciary is one of the three feet of the tripod on which our constitutional democracy sits. Incapacitating it will invariably affect the entire polity. The presidency and the legislature cannot stand without the judiciary. The fact that corruption may have degenerated to an epidemic in the judiciary does not make a case for the SSS to corrupt the necessary fine balance of fighting the war against corruption and the need to protect the independence of the judiciary.
It is mindboggling that security agencies who have advised the presidency against naming persons who have refunded proceeds of corruption – in order not to jeopardize eventual prosecutorial actions – can act the way they did with the affected judges and justices. It is also noteworthy that the powers of the NJC is not exclusive of the powers of the all the agencies involved with crime and corruption. The inactivity or otherwise of the NJC cannot ground a decision to humiliate the judiciary. What is obvious is that the SSS operatives are distracting their employer from their lousy and unprofessional handling of the crucial and critical war against corruption. Fighting corruption requires and calls to bear cutting-edge investigatory and investigative skills and capabilities of the law enforcement agencies that are concerned with the war against corruption. The complacency, incompetence, and connivance of the security agencies are, to my mind, more than anything else, responsible for corruption holding the country captive.
The SSS should know that the political lives of many of us are to a large extent dependent on how successfully this Government prosecutes the war against corruption. I, therefore, implore security agencies to up their game and come to speed with the requirements for an effective war against corruption – instead of shamelessly making the judiciary the fall guy in the war against corruption.
