Fighting corruption and risks of rogue precedents
Fighting corruption is a matter of law and order. Still in any democracy, constitutional dictates remain supreme. If the constitution does not grant certain enforcement powers, they don’t exist; and policies or actions advancing such powers are deemed unconstitutional. The recent raid and arrest of some serving and suspended judicial officers and the manner in which the raids were conducted by agents of the Department of State Services (DSS) have provoked animated debate that goes beyond fighting corruption. Questions are being asked: Were such raids and arrests within the constitutional remit of the DSS?
The method and manner of invasion of the residences and arrest of the Judicial Officers, including Sylvester Ngwuta and Inyang Okoro of the Supreme Court and Adeniyi Ademola and Muazu Pindiga of the Federal High Court between October 7 and, 2016, by DSS operatives, remains a cause for concern. Expressing such concerns is not intended to diminish the gravity or substance of the allegations. At issue are concerns that not following due process strictly smacks of impunity, and undermines our nascent democracy. The arrests and consequent release of the judges on their personal cognisance, and the intensity of the ensuing debate underline the importance Nigerians accord the subject.
Without prejudice to the rule of law and the right to prosecute the judicial officers for whatever crimes they allegedly committed, there is due process and statutory regulations for dealing with judicial officers who run afoul of the law. The extant regimes are underpinned by the Principles of Democracy, Separation of Powers and the Rule of Law as enshrined in the 1999 Constitution as amended. Yet, critical views persist; including those from the Nigerian Bar Association, contending that due process was not followed, despite claims by DSS to the contrary.
Prevailing fixation with fighting corruption in Nigeria by any means possible, has led some commentators to seek to subjugate the rule of law to such whims. In a democracy like ours, such whims are not just capricious, but profoundly dangerous. The greater danger lies not in arbitrary raids, arrests or prosecutions, but in the implications of insinuating rogue precedents into our law enforcement modalities: precedents, which if unchallenged will certainly undermine ordered liberties.
There’s a time to be silent, and a time to speak. It’s time for Nigerians to speak up. Those who downplay the mishandling of the arrest of the judicial officers should think twice. If such indiscriminate and beyond-mandate arrests go unchallenged, they will inevitably proliferate. Rule of law is sacrosanct especially in a democracy. And the rule of law is about upholding and the deepening of democratic ethos. As we are informed, “the rule of law connotes observation of rules…the rule of law doctrine is ubiquitous. It touches all spheres of our existence.”
Nobody is above the law; certainly not judges. And public officials who enjoy prosecutorial immunity are clearly delineated in the constitution. However, every Nigerian citizen is protected from arbitrary arrest, unlawful search and seizure, the right to counsel, presumption of innocence, and the right against self-incrimination. Were these rights accorded to the judicial officers?
With the arrests, comes the perception or suspicions of double standards. The judicial officers were unlikely flight risks, as affirmed by their consequent release on personal cognizance. Why then were their homes raided in the dead of the night? Why were senior military officers – retired and serving – accused of weightier corrupt offences never subjected to similar raids? Is law enforcement now selective?
The troubling aspect of the saga is mirrored by Pastor Martin Niemoller’s poem, which ran thus: “First they came for the Socialists, and I did not speak out – Because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out – Because I was not a Trade Unionist. Then they came for the Jews, and I did not speak out – Because I was not a Jew. Then they came for me – and there was no one left to speak for me.” Nigeria is grave risk when unbridled exercise of power goes unquestioned and unchallenged, since it will turn eventually to cruelty and absolutism. Today, it might be judges – tomorrow it might be senators or the clergy. We might soon confront minors being arrested, tried and incarcerated as adults. Recent attempts to rusticate some serving governors remain instructive.
Corrupt judges like any corrupt public servant, should be prosecuted and jailed, if guilty. But if there were procedural or substantive breaches of ordered liberties in the arrest of the judges, it would be wrong to let those breaches stand in the name of fighting corruption. There’s also the issue of full disclosure. Nigerians need to know the magistrate or judge of a competent jurisdiction who signed the search and arrest warrants; and of the petitions and affidavits that triggered the investigations, raids and arrests. As the National Judicial Council (NJC) indicated, “The impression created and widely circulated before the public that the DSS forwarded a number of petitions containing various allegations of corrupt practices and professional misconduct against some Judicial Officers to the Council, and they were not investigated, is not correct.” The NJC has urged the DSS “to make public the particulars of such petitions to put the records straight.”
As a matter of policy and best practice, security agencies must come clean to remain credible on such anti-corruption matters. If mistakes were made, it’s easier to admit so, apologise and move on. For now, there are challenges; questions persist as do doubts. The DSS side of the story seems a bit fuzzy. For those Nigerians who believe their story no explanation is necessary; and for those Nigerians who disbelieve their story, no explanation is possible. Nonetheless, the greatest danger to our nation, constitution, law enforcement and the anti-corruption war, is to allow the entrenchment of rogue precedents and worse still, to allow such precedents to gain currency and assume validity.