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Sunday, 9 October 2016

The DSS Arrest of Judges: Looking at What the Law Says

The Department of State Services (DSS) between the hours of 9pm on Friday and 5am on Saturday acted in spectacular fashion when it carried out the arrest of judges it accused of corruption.

With the amount of violence deployed and the manner it was done, the episode is without doubt one that may forever alter the perception of the judiciary considering that two Justices of the highest court in the land, among others, were involved.

The DSS has in a statement said that the arrests were the outcome of a sting operation involving judicial officers of the High Court, Court of Appeal and the Supreme Court. It claimed huge sums of money were recovered from three judges, thus:

1. NAIRA – N93,558,000.00

2. DOLLARS – $530,087

3. POUNDS – £25,970

4. EURO – €5,680

It also said that one judge, with the help of a state governor, managed to scurry away the sum of $2 million when operatives swooped in.

As expected, a lot of arguments have ensued but may I quickly state that the fact that money was recovered in a person’s house is no conclusive proof of crime. Judges do not swear an oath of poverty and may as well keep all their money in the house if they choose to.

The definition of the phrase ‘sting operation’ is my preferred point of broaching this subject. I am yet to find the definition of the phrase in the Nigerian laws I presently have access to so permit me to borrow from the internet legal resources I can reach. One of such is www.uslegal.com that defines sting operation as:

“A deceptive operation designed to nab criminals. Generally, a law-enforcement officer or cooperative member of the public play a role as criminal partner or potential victim and go along with a suspect’s actions to gather evidence of the suspect’s wrongdoing.”

Pardon the use of the word ‘criminals’ in that definition, it can be replaced with suspect for safety as we proceed.

One implication of the above definition is that, the DSS was clearly out to get the judges and was presumably tracking evidence it wanted to nab them with at the point of arrest. Another implication is that some persons were in the know of what was about to happen that night and some of them are likely members of the executive arm of government as well as the judiciary. It sure stands to reason that a simultaneous operation carried out in the homes of judicial officers in six different geographical positions and in commando style definitely must have had the approval of the presidency and in the worst case scenario, its ratification.

The next matter up for debate is the legality of the arrest of the judges and the manner in which it was done. Many matters have come up for debate in this regard as to the powers of the DSS to arrest judges, the time of the arrest, the search of their homes and the use of force to break walls, among other issues.

Section 43 of the 1999 Nigerian Constitution guarantees the right of every citizen to own property and Section 37 guarantees the right of every citizen to their privacy. It is for that reason security agencies can only carry out a search of anyone’s home after duly obtaining a search warrant which can be issued by a judge, magistrate or in some instances, a Justice of the Peace. The DSS claimed it had a search warrant for each of the residences it visited so we proceed to look at the legality of its approach in executing the search warrant.

The Administration of Criminal Justice Act (ACJA) 2015 is the law that presently governs criminal procedure in federal courts across the country as well as all courts in Abuja. Section 148 of the ACJA provides that “a search warrant may be issued and executed at any time on any day, including a Sunday or public holiday.”

Concerning arrests, Section 43 of the Act also says a warrant of arrest may be executed on any day, including a Sunday or public holiday. May I also add here that while executing a search warrant, where the police or other security agencies find anything that arouses a suspicion that the owner of the premises has committed an offence, they can validly arrest without a warrant. Section 18 of the ACJA caters to that.

Let us now turn to the use of force as evidenced by the breaking down of doors, pictures of which have since emerged. Section 149 of the ACJA recommends that a person whose house is to be searched should grant permission to the authority seeking to carry out a search. Where the permission is however denied, the agency can proceed to act in a manner prescribed by Section 12 of the Act which grants permission to “break open any outer or inner door or window of any house or place.”
The question to ask in the light of the above is: did the DSS inform the judges that it had a search warrant and were the operatives denied entry afterwards. The DSS claims it was refused entry and that one of the judges had even stated he was not at home even though a tracking device showed he was receiving the call from within the same premises.

I believe we can decide based on the laws cited if the DSS was right to break into the houses in the manner it did. An important provision of the law to also note is that, based on the provision of Section 14 and 15 of the Evidence Act, any irregularities observed in the course of executing the warrant do not ordinarily render the evidence obtained inadmissible. The court will mostly pay attention to the relevance of the evidence before it.

I will now consider the fundamental issue of whether or not the DSS indeed has the power to carry out a sting operation involving judges particularly for the reason it gave: corruption and professional misconduct.

As many have pointed out, Section 2(3) of the National Security Agencies Act provides for the functions of the State Security Service (SSS) which also goes by the cover name DSS. The section essentially provides for duties that revolve around internal security, and is reproduced below for the benefit of all:

(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.

Section 6 of the Act however grants the president the power to make an instrument (a subsidiary legislation) to provide additional direction for any of the security agencies created by the Act.

Former head of state, General Abdusalam Abubakar in 1999 invoked the power mentioned above and promulgated the State Security Service Instrument One of 1999. Section 2 of that instrument added a new duty to the responsibilities of the SSS – the prevention, detection and investigation of economic crimes of national security dimension, among other things. As for the legality of the Instrument One, it is a subsidiary legislation under the National Securities Act and by reason of Section 315(5) of the 1999 Nigerian Constitution, the National Securities Act remains in force until it is amended or repealed in line with the provisions of Section 9(2) of the constitution.

In the light of the above, we generally understand that bribery and corruption are economic crimes which have mostly been handled by the Economic and Financial Crimes Commission (EFCC). Many commentators are therefore justified to ask why the DSS and not the EFCC should be the one moving in on judges on the presumption that they were financially induced by some persons. To that, one may however also add that does the bribery of judges constitute an economic crime of national security dimension? I am not certain the courts have given a decision to that effect. I have personally not seen any but I may want to cut the DSS some slack on that score considering the calibre of judges involved in this particular sting operation, being judges whose decisions have national implications. The DSS however still has to provide more details on the particular acts and sums involved in its claim of inducement.

In the light of the above, the next question to ask, is, where does the National Judicial Council (NJC), the body empowered by the constitution to exercise disciplinary control over judges, come in?

I have seen arguments suggesting that only the NJC can question the activities of judges and that all criminal allegations against judges must be channeled through the NJC. I am a bit wary of that position even though I also very much believe that for the sake of decency and preserving the integrity of the judiciary, the best course of action would have been to petition the NJC to investigate the affected judges.

Section 158 of the constitution provides for the autonomy of the NJC in the exercise of its disciplinary powers one of which includes the removal of judges for misconduct or breach of the Code of Conduct for judicial officers, as provided in Section 292 of the constitution as well as Part I to the Third Schedule of the constitution.

The Council has been very active in that regard in recent times. It has imposed sanctions on a number of judges, recommended the removal of some and even the prosecution of at least one of the judges who was arrested by the DSS on Friday. The combative action of the DSS was therefore needless to a certain extent.

The above said, I am also mindful that there may be instances where urgent action is needed and instances where a criminal action may be committed not necessarily in the course of a judicial officer’s discharge of his duties as to amount to judicial misconduct.

The rights and powers of the NJC to entertain allegations of judicial misconduct are settled. What I believe is however not cast in stone is when a judicial officer commits a crime outside the realm of the discharge of his duties and crimes for which he can be arrested on the spot.

In the present case, the allegations of financial inducement against the judges have to do with the performance of their duties and as such, the matter should ideally be referred to the NJC for investigation and necessary action. The only reason why I think the DSS may be permitted to act in the way it did, which it has however not clearly stated, would be that it received a tip-off that the monies constituting the inducement had just been delivered to the judges and it needed to apprehend them with same before they could do away with it.

It is cheering that the Nigerian Bar Association (NBA) responded to the incident with a strong statement and I look forward to reading the take of the Chief Justice of Nigeria who coincidentally heads the NJC. The DSS, by its claim that it was a sting operation, implies that it had the tacit support of people within the judiciary. It will be good to hear what the CJN thinks about that. I also look forward to the next steps that will be taken by the DSS which has promised to charge the judges to court. Perhaps, by then, from the framing of the charges, one can get more clarity about the allegations flying around.

Tobi Adebowale

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