Is midnight raid on judges legal?
A contingent of officers from the Department of State Service(DSS) October 7 raided the homes of some Nigerian federal judges, including serving Supreme Court justices. This development immediately threw up a flurry of arguments about the propriety of DSS action among lawyers and other citizens. The umbrella body of lawyers in Nigeria, the Nigeria Bar Association (NBA), condenmed the action and so did many senior lawyers. However, there are few that believe the development was in order. JOSEPH ONYEKWERE, GODWIN DUNIA AND YETUNDE AYOBAMI OJO therefore sought the views of some lawyers on the development. Here are their responses.
Mr. Babatunde Fashanu (SAN) is of the view that the way and manner the arrests were conducted were illegal. According to him, an action may be constitutional and yet illegal in the way and manner it is performed. He described the action as regrettable. He stated that 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.
He said: “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. Many laws are involved starting with the 1999 Constitution, the Administration of Criminal Justice Act, 2015, the National Security Agencies Act and the Police Act, among others.
“I beg to differ from the Nigerian Bar Association (NBA) 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.”
He noted that judges are not excluded from the exercise of those powers of the Executive and the Courts because they do not have immunity against criminal prosecution like the President, Vice President, Governors and Deputy Governors. “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,” he said.
According to Fashanu, the good thing out of the 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. “This will be of benefit, not only to the polity as far as chances to get justice in the courts are concerned but also to the many judges who are not corrupt, are incorruptible, diligent and scrupulous to banish the perception that all Nigerian judges are corrupt just because of the criminal acts of a few bad eggs,” he declared.
In his reaction, a senior advocate of Nigeria, Mr Dele Adesina emphasized that democracy is a form of government that is based on the rule of law, due process and constitutionalism. “The constitution occupy an indispensable position and we must act in accordance to the constitution. Therefore, for our democracy to thrive, the constitution must be respected by all,” he quipped.
He described the constitution as the organic law of the rule of law and the foundation of all other laws. According to him, the arrest of the judges could have been done in a different way. “The preponderance of lawyers’ opinion is that, it could have been done in a different and decent manner.The fight against corruption is a fight that is supported by all reasonable Nigerians. And as a matter of fact, the judiciary is the stabilizer of the democracy and therefore judges must be free to decide on matters without been intimidated,” he said.
He also pointed out that the constitution that established the judiciary has also set out regulations on how to discipline erring judges and other judicial workers. Adesina stated further that assuming that the DSS is correct in all its allegations, such ought to be channeled to the Nigerian Judicial Council (NJC), and necessary actions would be taken. “There are many sanctions outlined for any erring judges from demotion, retirement, sack and a judge can also be handed over to the police for prosecution. The process of democracy may be very slow, but it is the best process we must all follow. There is nothing wrong if they had allowed NJC to handled the matter”, he concluded.
For Oluwole Kehinde, there was no place for due process and best practice, which the law and civility require. He argued that even Bank Chief Executive Officers said to have laundered election bribes, were not treated that way. “The Ghanaian judges, frequently cited by some people, were not dealt with in the crude and barbaric manner engaged by the DSS, before they were justifiably disgraced.
“True, judges are not immune from arrest, but you do not need loads of DSS operatives to invade the house of a harmless judge in the mid-night under the guise of trying to effect his arrest. These are public officers with clearly defined and well monitored places of abode.
It was wrong to engage corrupt procedure while claiming to be fighting corruption. A person cannot justify rape on the ground that the victim is a common prostitute. So, the fact that some judges are corrupt cannot justify the ignoble rape on due process and democracy exemplified by the action of the DSS.
“Moreover, the action has negative impact on the psyche and trust of the people in relation to the Judiciary on the one hand; and independence of the judiciary and administration of justice on the other hand,”he pointed out.
Mr. Ikechukwu Ikeji said it did not comply with due process. His words: “SSS (not DSS as they wish to call themselves) is strictly for intelligence gathering not enforcement. Corruption is financial crime. SSS is created for intelligence on internal security. Corruption as a crime is different from internal security unless it bothers on espionage or terrorism as in money laundering. SSS gathers intelligence and the EFCC and the Police are there to enforce laws on corruption.
“If DSS loses the case against the judges tomorrow, they will blame the judges. Meanwhile, they have already set out on a wrong footing, from an illegal starting point. How many prosecutors or investigators have been arrested or “stinged”? Most times, it is the investigator and prosecutor that bungles the case and they blame the judge when the judge is not father Christmas and can only decide on what is brought before him or her. This is not to exonerate the Judges though but a case for due process.”
Another Lagos based lawyer, Chris Okeke described the action as a sacrilege. He said: “I have followed the contributions here on the midnight abduction of Judges and particularly that of the highest court of the land. Without any equivocation, the name is sacrilege. I get embarrassed when some are struggling to defend it. That is how they crossed into the National Assembly, now it is the judiciary. The constitution is clear on this. These three arms of government are independent of each other. None is subservient to each, if at all, certainly not the judiciary.
“That the constitution is written is so that the lines are not crossed at will. The executive is not the cleanser of the judiciary but the judiciary itself and or the Nigerian people via their elected representatives acting in sessions. This is particularly so when the executive itself is smelling from its own petrifying sores. “My view is that this abomination must be addressed in its proper name, and not any thing else. This is the worst form of corruption ever. Sadly, the trumpeters of corruption have not deemed it needful to give us their definition of it as this would have given us the benefit of guarding their conducts and insist they stay within limits.”
He insisted that no one can hide under a nebulous concept and carry on with a dubious superiority mentality, while desperately seeking to destroy institutions and persons that have different opinion with you, adding that it is the unmasking of, and the arrival of the grand dictator. “He that rides on the back of the tiger will sooner than later become his meal. Check your history books on how they started,” he admonished .
In his own view, Mr Seth Amaefule said the importance of the judiciary as the third arm of government cannot and should not be allowed to be dragged to disrepute for the essential role it plays in any country.
“The judiciary and indeed, judges are the guarantors of the rule of law and due process in any country. It is this arm of government that all and sundry run to when there are need to get redress against any infraction. It is also the judiciary that holds the balance between other arms of government.
“Therefore, the judiciary should not be placed in a subservient position. The way its been treated as we can see. Otherwise, there will be no rule of law or due process in the country,” he declared.
On allegation of corruption against some judges, Amaefule said: “Judges are human, given the environment we all found ourselves, where corruption has eaten deep into the system. We as lawyers are aware of these allegations and they do not mean all lawyers or judges are corrupt.”He also suggested that things must be done in a more civilized and dignified manner.
“The manner in dealing with the judiciary must be quite different from any other arm, institution or individuals. The judiciary is an arm that must not be allowed to be brought to or treated with disrepute” Amaefule cautioned.