I have resisted the urge to write on the contentious saga of Judges’ arrest and investigation but my guards were broken by the protracted misfires on issues of law by esteemed men in the legal business.
I waited earnestly for a reply to the mail I sent the President of the Nigerian Bar Association, M. A Mahmoud, SAN. Expectedly, the result of my long-suffering was a cancerous leach being that the President upheld a position that was antithetical to the law he purports to be repository of. The Nigerian Bar Association has criticized the arrest of some senior Judges by the DSS on the tangential basis of the arrest being a violation of the Independence of the Judiciary.
The beauty of law is that there is enough room to swing diverse arguments from different angles and with this beauty lies a corresponding problem that eats deep into the legal profession and that is the inability to carefully apply facts to the Law. The esteemed President of the Bar is unrepentantly guilty of this, hence the blueprint of my article..
About a fortnight ago, the DSS stormed the houses of some Justices and arrested them on the allegations of corrupt practices. This action has spurred the interest of many legal practitioners to speak on the legality or otherwise of the arrest. Since the NBA criticises the arrest, I’ll start with its basis for condemnation.
The arrest of the judges by the DSS was an illustration of how the executive can check on the powers of the judiciary. According to the DSS, the arrest of the judicial officers was based on allegations of corrupt practices and professional misconduct. The DSS in a statement said that raw cash of different denominations, in both local and foreign currencies, assets worth millions of Naira and documents affirming “unholy acts of these Judges” have been uncovered through a sting operation. The summary of cash allegedly recovered during the “raids” conducted in the homes of the Judges was given as follows: Naira – N93,558,000.00; Dollars – $530,087; Pounds – £25,970 and Euro – €5,680. For heaven’s sake and in the name of everything that is good, how did the judges come by such Olympian wealth? Is it not striking for comfort that they have in their possession, such colossal sums when a sum of their entire years in the bench would not accrue such money in calculable analysis? Yet, the President of the Nigerian Bar Association and a host of other Senior Advocates still cry out that the arrest was illegal. The question here is, how did the judges come by such wealth? Fairly, the judges should go to court to prove their innocence and explain to Nigerians how their bank accounts climbed a monetary Kilimanjaro.
Many Lawyers burdened by herculean sentiments have said that the arrest was a calculated act of the executive to suppress and denigrate the Judiciary. This position is really shameful. The law and sentiments are by no means bed mates. They are incongruous to each other. The question we should ask ourselves is, ‘Was the arrest Legal or not? ”
It was made known that the DSS issued warrants to the judges before they were arrested. Legally the arrest is backed up by the provisions of the Administration of Criminal Justice Act, 2015 which the governing statute on criminal matters in federal courts. It has been argued by some lawyers, including some Senior Advocates of Nigeria (SANs) that the ACJA does not apply throughout the federation and that the DSS was bound to follow the provisions of the enabling procedural laws in the States where they executed the search, especially as it pertains to the time of execution of the search warrants. This argument with respect is misleading.
Under Section 111 of the repealed Criminal Procedure Act Cap. C41 LFN 2004, the time for executing a search warrant in the South was between the hours of five o’clock in the forenoon and eight o’clock at night of any day of the week, including Sundays but the Magistrate had the power to direct otherwise. The repealed Criminal Procedure (Northern States) Act Cap. C42 LFN 2004, was however silent on the time. Both Acts have now been repealed by Section 493 of the ACJA 2015 and are no longer laws in Nigeria. Section 2 of the ACJA makes the ACJA applicable to criminal trials for offences created by an Act of the National Assembly, like economic and financial crimes, and to other offences punishable in the FCT, it is the ACJA and not the various laws of the States where the “raids” were conducted that governs the procedure adopted by the DSS. Accordingly, it is misleading for anyone to suggest that the DSS was wrong to have executed the search warrant(s) at night.
It is reported that the SSS forcibly broke into the house of one of the judges. The combined effect of sections 43 and 148 of the Act provides that a search warrant or a warrant of arrest can be issued to any public official at any time of the day including nights, or any day of the week be it Sunday. In extenso, Section 149 of the Act mandates any public official whose house is to be searched, to grant the authorities concerned to carry out their duties without restraint.
Expectedly, Many lawyers have argued that the evidence recovered would not be admitted in court for improper procedure. These Lawyers embarrass me handsomely. Since a search warrant was issued pursuant to the relevant laws, it follows as the night follows the day that the evidence gotten by the DSS is admissible in court. Of Course, it is rudimentary knowledge for any lawyer to know that even if the mode of collecting those evidence was inappropriate, the evidence will still be admissible before any court. Relevance is the key to admissibility as emphasized by Section 1 of the Evidence Act, 2011. In other words, where evidence is recovered in contravention of the procedure for search of houses and places, the court admit it in evidence. In Kuruma v R. (1955)1 All ER 236 at 239-240, the Privy Council stated, inter alia, thus:
“The test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is admissible…..the court is not concerned with how the evidence was obtained”.
Again and Again, The National Judicial Council challenged the arrest of the Judges by the DSS as being a disrespectful incursion in the rights of the NJC as stipulated by the constitution. Well, thank God I do not need to be a Senior Advocate to understand the workings of the law.
Respectfully, where the wrongful act of a judicial officer is only a misconduct and nothing more, the NJC is saddled with the power to recommend such offending judicial officer for removal from office and exercise disciplinary control over him. The NJC’s independence from control guaranteed and envisaged by Section 158 of the Constitution does not, and cannot be construed to mean totality or absoluteness of control over judicial officers where the misconduct complained of also constitutes a crime. Crime control is under the exclusive control of the executive through the Police and other enforcement agencies.
Again, there is a largely galvanized misconception that needs to be corrected. It has been argued by some persons that the procedure to be followed to deal with erring judges requires that even when a judge is found or alleged to have committed a crime, a petition must first be written to the NJC and that the petitioner and the law enforcement agencies like the police, the EFCC, the DSS and others must exercise perseverance to wait for the determination of the petition by the NJC before activating the criminal process. With respect and awe, this cannot be the contemplation of the law. Obviously, this misconception is borne out of a misunderstanding of the relationship between the constitutional procedure for removal of judicial officers and the liability of judges for criminal offences committed by them.
The procedure for removal of judicial officers in Nigeria is as contained in Section 292 of the Constitution. In brevity, the provision is to the effect that the NJC may recommend to the President or Governor, as the case may be, the removal from office of erring judicial officers for inability to perform the functions of their office due to infirmity or misconduct or contravention of the Code of Conduct. Note that the NJC only recommends, it does not and cannot remove any judicial officer solely on its own.
There is nothing in Section 292 of the Constitution that envisages the removal of an erring judicial officer a condition precedent to his investigation, arrest, detention and prosecution by law enforcement agencies. Such an argument must be swept under the throes of ignorance. Our constitution recognises no immunity for judges of even the Supreme Court, only the executive arm enjoys that privilege under Section 308 of the Constitution.
I commend the DSS for this bold step towards cleansing the augean stables. The Judiciary is replete with bad eggs many of which are judges, Senior Advocates, amongst others. There is a pungent need to sanitize the judiciary which already reeks of indiscipline and corruption. The contention of the NBA in defending the arrested judges was that the arrest violates and undermines the independence of the judiciary and the principle of separation of powers but I will take pains to bring to their hearing that the principle of separation of powers is incomplete without checks and balances. Corrupt Judges must not hide under the facade of being independent to perpetrate and perpetuate corrupt practices capable of ruining the dignity of the profession. Judges who steal must be melted the same punishment as civilians. There is no separate rule of law for the big wigs to the exclusion of plebeians. Other countries with milder levels of corruption have arrested tried and prosecuted judges. Nigerian judges should be highly scrutinized because corruption in the country has already assumed a monstrous proportion. If the judiciary is in the same murky waters as other parastatals, then I wonder what the hope of the common man is. The arrested judges should go to court to prove their innocence, if guilty, they must all stew in their own juices.
Destiny OSAYI OGEDEGBE.
® Mr Possible