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Thursday 13 October 2016

Interesting analysis!!! When DSS invaded judges’ enclave

When DSS invaded judges’ enclave

Lawan-Daura-DG-DSS.

There is a sharp division among members of the public and the legal profession over the propriety of last weekend’s raids on the houses of judges and their arrests. ADE ADESOMOJU and RAMON OLADIMEJI report

lAST weekend’s raid on the houses of some judicial officers in Gombe, Enugu, Port Harcourt, Kano, Sokoto and Abuja, the Federal Capital Territory, have ignited emotions in favour and against the operation which landed in the custody of the Department of State Services seven judges, including three who were recently sanctioned by the National Judicial Council.

The DSS had, between Friday and Saturday, arrested Justices Sylvester Ngwuta and John Okoro of the Supreme Court; the suspended Presiding Justice of the Court of Appeal, Ilorin Division, Justice Mohammed Tsamiya; a judge of the Kano State High Court, Justice Kabiru Auta, and Justice Adeniyi Ademola of the Federal High Court, Abuja.

Others arrested were a former Chief Judge of Enugu State, Justice I. A. Umezulike, and Justice Muazu Pindiga of the Federal High Court, Gombe Division.
Like a scene from a movie, the DSS operatives broke into Justice Ademola’s home before eventually whisking him away early Saturday morning.

For some, particularly those in the top echelons of the legal profession, the act of the DSS on October 8 and 9, 2016 was just one of the countless times the DSS had trampled on the law and laid down procedures to achieve their desire.

Weighing on their minds were the cases of the leader of the Indigenous People of Biafra, Nnamdi Kanu, and a former National Security Adviser, Sambo Dasuki, among others.

In Kanu’s case, the scenarios that played out before a Magistrate’s Court in Wuse Zone 2 of the Federal Capital Territory, Abuja, where the DSS took Kanu, came to mind.

The presiding magistrate in the case, Shuaibu Usman, had issued a number of orders, including one asking the DSS to produce Kanu in court, which the DSS failed to comply with.

On November 18, the prosecuting counsel for the DSS, Mr. Moses Idakwo, said Kanu was not produced on that day because the business of the day was the hearing of the accused person’s objection to the court’s jurisdiction.

But the magistrate reminded the lawyer that he had earlier on October 23, 2015 ordered that the accused person must always be present in court each time the matter came up regardless of what the proceedings were about.

Earlier, the magistrate had ordered the DSS to transfer the accused to prison, but like the orders made before and after it, it fell on the agency’s deaf ear.

Similar thread runs through the cases involving a former National Security Adviser, Sambo Dasuki, who had been kept in the custody of the DSS without any court order backing the incarceration since December 30, 2015.

The judgment of the ECOWAS Court of Justice, delivered in Abuja on October 4, 2016, directing the release of the ex-NSA from custody with a fine of N15m imposed on the Federal Government for his unlawful detention has yet to be complied with.

On September 30, arms-wielding DSS operatives stormed a Federal High Court, Abuja, presided over by Justice John Tsoho, and forcefully took away a member of the arms procurement investigation committee, Air Cmdr. Umar Muhammed (retd.), after he was granted bail by the court.

Some had argued that the arrest of the judges over the weekend was an outright case of the executive arm of government encroaching into the space of the judiciary, another independent arm of government.

While admitting that corruption, which had permeated the entire fabric of the nation, had managed to find its way into the judiciary, those who expressed reservation over the DSS’ action said the National Judicial Council, which supervises the conduct of judges, ought to have been carried along.

A Senior Advocate of Nigeria, Mr. Babatunde Fashanu, argued that while it was expedient to do everything to rid the judiciary of corruption, the executive was wrong not to have carried the National Judicial Council along in the sting operation by the DSS.

He, however, blamed the development on the failure of the Nigerian Bar Association to before hand assist the government in the effort to identify and eliminate corrupt elements from the judiciary.

Fashanu also dissented from the argument of the NBA that the DSS raid amounted to an usurpation of the function of the NJC, stressing that it was not in the place of the NJC to prosecute crimes.

He said, “Let me first of all say that the way or manner of the searches and arrests is regrettable regardless of whether it is valid or not, especially when it does not appear from reports that the National Judicial Council – the body that is constitutionally responsible for the discipline of judges or its head, the Chief Justice of Nigeria – was involved in the action or was previously informed before taking the action.

“Secondly, because of the fact that the DSS primarily works for the executive arm of government while the judiciary is a separate creation of the Constitution, upon the doctrine of separation of powers, especially having regard to the role of the judiciary as a check and balance of the other two arms – the executive and the legislature – care and caution must be exercised by the executive arm from unleashing its enormous powers on the judiciary or any of its members or constituents notwithstanding any perceived provocation.

“Having said that, it does not follow that the search and arrest of judges for corruption is necessarily illegal in my humble opinion.
It’s all a matter of interpretation of the relevant laws which will take a moderately big book space to discuss on either side but I beg to differ with the Nigerian Bar Association President and some senior leaders and members of the Bar, with great respect, that the DSS was usurping the functions of the NJC.

The latter is constitutionally vested with powers for the discipline of judges but not to prosecute or adjudicate on criminal matters because those are the exclusive preserve of the executive through its relevant agencies, and a court of law to adjudicate on criminal matters, when properly constituted, respectively.

“A dire problem requires dire solutions and the NJC is not to do criminal investigations or perform ‘sting operations’ but they can work together with relevant agencies and everyone will see something concrete being done the right way.

“Judges are not excluded from the exercise of those powers of the executive and the courts.

It is unfortunate that the NBA merely condemned the search and arrest which I agree with for expediency reasons but it should also have given enough space to the endemic corruption in the judiciary which all these underscore, subject to the rights of the judges to due process at all stages, especially as the populace has not seen anything done or being done effectively by this same NBA to assist the authorities in bringing corrupt judges to book.

It smacks of insensitivity to the yearnings of the populace that it is supposed to protect.”

Fashanu said the danger of the clampdown on judges by the DSS was that the independence of the judiciary had been threatened and judges could be under pressure when handling any case in which the executive had interest.

He added, “It is the same judiciary that will interprete the relevant laws to determine all the legal issues arising from this unfortunate development. So, will the judges to adjudicate feel free when they’ll keep looking behind their backs that they could be arrested for this or that?

“The good thing out of this imbroglio is that it underscores the need and urgency for all the relevant parties and agencies to come together and cooperate to rid the judiciary – the last hope of the common man – of corrupt judges and corruption, which will also emphasise the honesty and diligence of the good and incorruptible judges that we undoubtedly have and encourage them to continue with their good work.”

A Senior Advocate of Nigeria, Dr. Babatunde Ajibade, said while the approach taken by the executive was condemnable, the judiciary should be blamed for its failure to put its house in order and thereby giving room for the incursion by the executive.

Ajibade said with the development, the nation was at the risk of having a system where there would be no check on the executive arm of government.

He said, “The judiciary and the legal profession as a whole has a lot of blame to take. We’ve been shouting for a long time that if we don’t put our house in order by ourselves, others will come and sort it out for us.

“But right now, in my view, we run the risk of derailing our democracy. Irrespective of the offence of the judicial officers that were involved in those arrests, the fact is if the executive has the power to do that which has now been done by the DSS, it totally puts the judiciary under the control of the executive and any semblance of independence is gone.

If a judge is in the process of considering a matter in which the executive has interest, all that the executive has to do is to break down his door at night, throw some dollars in his house, call the press and say he is corrupt. And that will be the end of that case. We run the risk of having a system where there is no check on the executive right now.”

The Executive Director, Socio-Economic Rights and Accountability Project, Adetokunbo Mumuni, said the NJC was to blame for the attack on the judiciary because it had failed to live up to its responsibility of cleaning the judiciary of its rot.

He said, “SERAP is seriously concerned that over the years the NJC has felt satisfied with applying only civil sanctions and has not deemed it fit to hand over corrupt judges to law enforcement agencies for prosecution nor recover the proceeds of corruption.

“This omission has left a destructive gap in judicial accountability in Nigeria, and resulted in other agencies of government, with no mandate, expertise and experience in the field, getting involved in the efforts to combat judicial corruption.”

Mumuni recalled that out of the 1,020 judges serving in the superior courts, the NJC had sanctioned no fewer than 64 between 2009 and 2014, mostly by sending them on compulsory retirement without more.

He said, “SERAP believes that corrupt judges should not merely be retired where there are clear allegations of corruption against them.

“Corrupt judges must not also be allowed to keep their ill-gotten wealth, or receive their pension and retirement benefits, as if they have done no wrong while the victims of their corrupt acts are left without an effective remedy.”

A professor of Law, Fidelis Oditah (SAN, QC), said since corruption is a threat to national security, it is within the mandate of the DSS to investigate cases of corruption.

Oditah argued that investigation of judges for corruption by the DSS did not mean that the executive arm of government was attacking the judicial arm.

He said, “The DSS has the mandate to maintain internal national security. There are many things that impact on national security, and I don’t think it is necessarily narrowly focused on insurrection or civil disobedience and the like.

Anything that affects the institutions of the nation and which strikes at the heart of the institutions of the nation must be matters which affect national security. And on that analysis, I will say that they (DSS) have power, provided they follow the due process.

And the due process that I mean is that if an offence was not committed in your presence and you want to see whether you will find any evidence of the commission of the offence, the most appropriate thing is to obtain a search warrant and then execute it in a responsible and respectful manner.

“And of course, it must be clear to everyone that judges are just like you and I, they enjoy no immunity or they enjoy limited immunity in relation to what they do as judges. For example, you cannot arrest a judge because he gave judgment against you. But they enjoy no immunity for criminal offence.

If a judge stabs someone, he will be arrested and prosecuted for malicious injury; if a judge steals your property, he will be arrested and prosecuted for theft. And that really is the essence of the rule of law that we are all equal before the law.

“If some of the allegations that have been going round are correct, one must be very alarmed and concerned as a citizen of Nigeria. If you hear that a judge has taken a bribe of up to $100,000 or you find $100,000 in the house of a judge, which is not a bank, wouldn’t you be alarmed as a Nigerian? I think we must put this thing into perspective. Judges, like all of us, need to be subjected to the rule of law, respect and due process.

But subject to those, judges are just like you and I and they are Nigerians; they are not above the law. If a judge is reasonably suspected of having taken a bribe, why should they not be arrested because they are in the judicial arm? If they were members of the executive – we see them arresting everyday commissioners, governors and so on – no one complained that they are attacking the institution of the executive.

And we saw when they arrested Faruq Lawan, in the last Assembly for taking bribe from Otedola, no one said it was an attack on the legislature. So, why is this one being viewed as an attack on the judiciary? Corruption is a serious matter and it must be tackled frontally but following due process.”

A Senior Advocate of Nigeria, Chief Gani Adetola-Kazeem, said the DSS, as one of the law enforcement agencies in the country, had the power to investigate crimes against any citizen, including judges, provided it is armed with a valid warrant authorised by the court.

Adetola-Kazeem, however, condemned the style of executing such a warrant in the middle of the night as done in the case of the judges.

He said, “If any arm of the law enforcement agency has evidence or information that a crime is committed or is being committed somewhere, it has an inherent duty to investigate the crime; to that extent, the fact that it affects a judge, is immaterial because nobody is above the law. The fact that one is a judge does not mean that he should not operate within the ambit of the law.

If a judge is suspected to have committed a crime or is about committing a crime, law enforcement agents have a duty to investigate or if possible prevent the commission of the crime. And in that respect, I won’t say that this is an attack on the judiciary.”

Adetola-Kazeem also differed with the opinion that the DSS ought to have first informed the NJC before embarking on the raid.

He also differed with the view that the arrest of the judges was an attack on the judiciary by the executive.

He said, “Now that judges are involved, many people have expressed the opinion that the normal thing is that the DSS should have first of all sent a report to the NJC, which would conduct an investigation and then hand over the judges to the law enforcement agency for prosecution.

“The NJC is the body responsible for supervising judges, but it does not conduct criminal investigation. It only conducts investigations into petitions or complaints you make to it about any particular judge in the course of the performance of his duty.

But if a crime has been committed by a judge or a judicial officer or anybody for that matter, the NJC does not investigate a crime. So, the agencies that have been vested with the duty to investigate crime are usually the law enforcement agencies such as the police, EFCC, ICPC, DSS.

The DSS is a secret agency, if they have information about the commission of a crime, there is nothing wrong for them to investigate the crime and if they find that there is an evidence of it, they can then hand the person over to the prosecuting agency to handle.

I would therefore not see the mere fact that judges are being investigated as amounting to an attack on the judiciary.”

Source: Punch

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