Wednesday, 19 October 2016

DSS vs Judiciary: Who Will Judge this Case?

This is an interesting expose on the conflict of duties between the operatives of the DSS as backed by the presidency and senior members of the Nigerian judiciary.

Approximately two weeks ago, operatives of the Department of State Service (DSS) swooped on some judges across the country, claiming they allegedly found huge sums of money in their possession.

Though the affected judges have been granted administrative bail by the DSS, the action of the security outfit has continued to generate different reactions. Sunday Ejike reports.

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More than six decades ago, John Austin gave a series of lectures that later formed the foundations of the Speech Act Theory contained in his seminal work, How To Do Things With Words. According to him, when people speak, they don’t just utter words; they also perform certain actions with the words uttered.

In doing things with words, certain conditions or contexts must exist. One of such is that the person performing acts with words must be qualified to do so. For instance, at a wedding ceremony, only the priest joining a man and a woman together in a holy wedlock, after observing the necessary rites, is conferred with the power to say, “I declare thee husband and wife.”

The parents of the bride or the groom or any other person cannot so declare. Perhaps of weightier import are such performative utterances as are uttered in the court rooms by judges.  After considering the evidences before him or her, a judge pronounces an accused person guilty or otherwise, depending on the facts of the matter or other extraneous considerations.  It is in this regard that the words from the mouth of a judge are said to have the power of life and death. Should the accused be convicted, jailed or sentenced to death, the mere sentence from the judge to that effect changes social reality until such verdict is set aside by a superior court.

But what happens when the words from the mouth of the head of a security agency become potent enough as to cause the arrest and detention of seven judges on allegation of bribery, corruption and sundry fraudulent practices?

That is the puzzle that probably confronted the seven judges rounded up and detained by operatives of the Department of State Services (DSS) recently. The night of Friday and Saturday morning of the weekend will not be easily forgotten in the history of the country in general and in the nation’s judiciary in particular.

Acting upon allegations of official misconduct and corruption, the DSS stormed the houses of two Justices of the Supreme Court and five other judges. The seven judges are: Justices Inyang Okoro and Sylvester Ngwuta 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 Chief Judge of Enugu State, I. A. Umezulike. They were detained for some days and granted bail on self recognition by the DSS.

This was, perhaps, the first time the DSS would be making such sweeping arrests and some sections of the country believe that the action of the service was an usurpation of the responsibilities of the police.

Since the incident, there have been several reactions from various sections of the society, most especially, those in the legal profession.

The umbrella body of lawyers in the country, the Nigerian Bar Association (NBA), gave the first dose of the criticism. The NBA president, Abubakar Mahmoud, at a press conference in Lagos, said the “harassment” and arrest of the judges was absurd, unacceptable and declared a state of emergency in the Judiciary over the incident.

The NBA boss, who was joined by four past presidents of the association, Chief Wole Olanipekun (SAN); Dr Olisa Agbakoba (SAN); Mr Joseph Daudu (SAN); and Augustine Alegeh (SAN), condemned what he described as the Gestapo-style of the DSS.

The Chief Justice of Nigeria (CJN) and the chairman of the National Judicial Council (NJC), Justice Mahmud Mohammed, had, in his address at a valedictory session held in honour of a retired Supreme Court justice, Justice Suleiman Galadima, on Monday, condemned the incident and said “it was regrettable, sad and unfortunate.”

But a legal practitioner, Jiti Ogunye, did not see anything wrong in the manner in which the DSS executed the arrest in the early hours of Saturday, explaining that Section 148 of the Administration of Criminal Justice Act states that a search warrant can be issued and executed at any time of the day, including a Sunday or a public holiday.

He was reacting to the claim by constitutional lawyer, Mike Ozekhome, who had described the arrest of the judges as “most condemnable by any right-thinking member of the society.”

Ozhekhome faulted the timing and manner of the arrest, claiming that the law does not allow for homes of suspects to be searched during the night or for doors to be broken in order to gain access.

Ogunye berated Ozekhome for quoting an old law which, according to him, had since ceased to be relevant. “People are not familiar with the law and those who should enlighten the public manipulate the law and they don’t disclose what the law has said.”

On the “Gestapo” manner in which the arrest was done, he went further to say that Section 149 of the Act permits law enforcement agents to “break open any outer or inner door or window of any house or place of the suspect to be arrested,” if access to such building cannot be obtained or is denied.

Ozekhome had also earlier argued that democracy only thrives on its adherence to the rule of law and the Nigerian government, by allowing the arrests, had gone against the values of democracy and the DSS had gone beyond its constitutional mandate.

“The DSS by our constitutional organogram has its own functions and these are to take care of the internal security of the country.

“Its counterpart the Directorate of Intelligence Agency (DIA) is in charge of matters concerning military, while the NIA, Nigerian Intelligence Agency, is in charge of security matters that extend beyond the boundaries of Nigeria.

“The three legal entities that are allowed by our laws to go into corruption matters are the EFCC, the ICPC and the Nigeria Police, particularly under Section 4.

“So, their action is faulted fundamentally on the grounds that they were going beyond their constitutional and statutory mandate,” he said.

Human rights lawyer, Mr Femi Falana (SAN), in his reaction, criticised the NBA for shielding corrupt judges despite having information about their activities and described the failure of NBA to deal with corrupt officials in the judiciary as an embarrassment to the “incorruptible members of the bar,” adding that it was responsible for the current state of the country’s judiciary.

Another Senior Advocate of Nigeria (SAN) Mr Jibrin Okutepa, in his reaction said, those condemning the mode of arrest of two Supreme Court justices, and others ignored the substance.

Okutepa said: “When justice is bought and sold, there is no more hope for the society. What our society needs is an honest, trusted and trustworthy judiciary. Those of us who genuinely practicse in our courts know what goes on in some courts.

“Some of us don’t go to some judges’ courts, not because we don’t like doing our jobs, but because it appears you don’t know the law in some of these courts. The language of the judgment depends on what is offered and not the settled principle of law.

“While I will always defend the judiciary, it will be difficult to offer the best of defence in favour of a judicial officer whose conduct and lifestyle suggests evidence of corruption.”

According to him, a corrupt judge is a danger to the country, adding that lawyers must join hands to rid the judiciary of graft rather than shying away from the real issues.

He said: “I am really bothered as to why we devoted arguments on the propriety or otherwise of the method used by DSS to expose corruption on the part of some judges of our superior courts.

“I am not in position to say these gentlemen did or did not do what they were accused of. I am also not in a position to say the money recovered was theirs or planted.

“But I am in a position to be worried as to why it had to be them that money was planted on. I am worried that we talk more of the process used to let the Nigerian public know that all is not well. Have we all not agreed that all is not well?”

In another reaction, a constitutional lawyer, Sunday Ogboji told Sunday Tribune that the arrest of the eminent Jurists in the middle of the night was not a palatable decision, saying that security agencies had the right to arrest erring judicial officer or any Nigerian.

According to Ogboji, Section 148 of the Administration of Criminal Justice Act (ACJA) 2015, arrest can be undertaken at any time and on any day, including public holidays. He, however, faulted a situation where security operatives go to houses of persons that are not security risks and are not in a position to dispute the authority of the Service and will not do anything to impede the search in the middle of the night.

The lawyer said the action of the DSS showed a predetermined intention to do something beyond what they might have gone to do.

“My take is that, in as much as we support the fight against corruption and the routing out of corrupt judges in the judiciary and anything that will bring sanity in the judiciary, due process of the law must be followed. The principal function of the DSS, by virtue of Section 3 (2) of the National Security Agency’s Act CAP 74 of the Laws of the Federation of Nigeria, the DSS was primarily set up for internal security and the protection of VIPs.

“That is their core responsibilities and I don’t know how you are going to share the responsibility of fighting corruption to the DSS, when you have established federal bodies set up primarily to fight corruption.

“No lawyer in this country will say he is not in support of the fight against corruption. No lawyer will tell you that there is no corruption in the judiciary, but what we are saying is that there are procedures and ways to go about it. The law establishing DSS has no room for them to intervene where there is bribe, because there are the EFCC, ICPC and the Police which are established to do so.”

On the implication of the action of the DSS on the democracy of the country, he said the action was a threat to democracy; the judiciary is an independent arm of government, created exclusively by Section 6 of the Constitution, just like the legislature was created by Section 4 and the Executive by Senator 5 of the ]1999] Constitution.

“The judiciary is an arm of government where the personnel there are like demi-Gods, because it is a Judge that can take life in Nigeria, even the President cannot give an order for the death sentence of an individual.

“It is an arm of government that people to go with a solemn belief that they will get justice. Agreed, there are bad eggs, but when you go after them, let it not be as if it is an attack on the institution, because I cannot see any justification for the invasion of Justice Onnoghen and even on Justice Dimgba,” he said.

Ogboji added that the NJC was charged with the responsibility of sanctioning judicial officers, explaining that some judges were recently retired by the council. He said the DSS, EFCC or the ICPC could commence investigation of the judges after their retirement for corruption or other misconduct.

He said the intention of the DSS to rid the judiciary of corrupt judges was good, but that the way and manner they were going about was what people became worried about.

Ekiti State governor, Ayodele Fayose described the act “as an invasion.” The governor said, “It should be obvious to all Nigerians and the international community that democracy is under threat in Nigeria and Nigerians must rise to save democracy from being truncated,” he said.

But President Buhari had countered saying the raids on the judges’ residence were an assault on corruption and not on the judiciary.The president, in a statement by his media adviser, Garba Shehu, described the raids as ‘surgical’ saying due process was followed in the arrests.

“The Presidency has received assurances from the DSS that all due processes of the law, including the possession of search and arrest warrants were obtained before the searches,” he said.

“To this end, the president will not do anything to undermine its independence. The Presidency assures that the president reserves his highest respect for the institution of the judiciary as the third arm of government and added that the president will not do anything to undermine its independence.

The Attorney-General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN), however, on Tuesday,said  no Nigerian “should be above the law”. The AGF spoke after he inaugurated an Expert Review Committee on implementation of the United Nations Convention Against Corruption (UNCAC) in Abuja.

When the AGF was asked of his view on the raid and subsequent arrest of the judges, including two justices of the Supreme Court, he asked if there was 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 borders on criminality and no one is or should be above the law. Neither the judiciary or the executive will be exempted from investigation”, the AGF stated.

The NJC, in an emergency meeting convened specifically to discuss the issue of the arrest, condemned the invasion. The Council considered the action as a clear attempt by the DSS to humiliate, intimidate, denigrate and cow the judiciary.

The NJC, in a statement by its acting Director of Information, Soji Oye, viewed the action as a threat to the independence of the judiciary, which portends great danger to our democracy.

NJC reiterated its confidence in the Buhari administration and its unwavering determination to uphold the principles of democracy, separation of powers and the Rule of Law enshrined in the constitution and the United Nations Charter, which Nigeria is a member, adding also that  it shall continue to support the Federal Government in its fight against corruption in all its ramifications and in cleansing the judiciary of corrupt judicial officers, just as it expressed grave concern on the action of the DSS and condemned it its entirety.

“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 as amended.”

The Council said any judicial officer that was reprimanded by it 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 statement reads in part, “That no judicial officer shall be invited by any institution including the DSS, without complying with the Rule of Law and due process.

“That explains why when the DSS wrote to the Council by letter Ref. No. LSC.960/4 dated 14th September, 2016, to direct Justice Mu’azuPindiga to appear before it, The Chief Justice of Nigeria and Chairman of the NJC directed the Chief Judge of Gombe State to ask JusticePindiga to report to DSS, which His Lordship did.

“That the NJC has never shielded nor will it shield any Judicial Officer who has committed any misconduct. The DSS 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 DSS is a denigration of the entire Judiciary, as an institution. That by the act of the DSS, 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, victimisation or suppression”, the NJC stated in its official comment over the incident.

Culled from the Nigerian Tribune

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