‘Crackdown’ on judicial officers — separating the law from sentiments

BY INIBEHE EFFIONG

The State Security Service (SSS) embarked on an unprecedented “crackdown” on allegedly corrupt judicial officers across the country over the weekend. Among the judicial officers whose houses were searched and thereafter arrested and detained are two Justices of the Supreme Court of Nigeria; Justices Sylvester Ngwuta and Inyang Okoro.

As expected, the action has polarised lawyers, commentators, the media, civil society and the public. Differing views have been expressed on the constitutionality or otherwise of the steps and procedures adopted by the SSS. Sadly, the public has been deprived of opinions that are rooted in law owing largely to the belligerent and sentimental posturing and aggressive grandstanding that has impaired commentaries on the issues in controversy.

My task in this essay is simply to offer a legal opinion on the following four issues: First, are judicial officers in Nigeria immune from the criminal justice system?; Second, is it mandatory for security agencies to seek the consent/intervention of the National Judicial Council (NJC) before investigating, arresting, detaining or prosecuting a judicial officer over alleged crimes?; Three, did the SSS act within its statutory powers and acceptable legal procedures? Four, is evidence that is obtained illegally admissible in law?

The above questions or issues are in my considered view the crux-es of the matter.

Before I proceed further, may I respectfully issue a caution: This op-ed is one of the longest that I have written in recent times. It is not for the lazy mind or for those who are easily irritated by long essays and exposition. The nature of the issues under consideration necessarily made it a detailed essay. I solicit the indulgence of readers.

Resolution of the issues:

First, are judicial officers in Nigeria immune from the criminal justice system?

The only constitutional provision relating to immunity from civil and criminal proceedings and processes for certain public office holders in Nigeria is Section 308 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (hereinafter referred to as the Constitution). Based on that provision, only the President, the Vice President, Governors and Deputy Governors are shielded from civil and criminal proceedings and processes in limited circumstances.

It is an elementary rule of interpretation that the express mention of one person or thing is the exclusion of another. The maxim is expressio unius personae vel, est exclusio alterius. In the case of Ehuwa v. O.S.I.E.C. (2006) 10 NWLR (Pt.1012) 544, the Supreme Court stated the position thus:

“It is now firmly established that in the construction of a Statutory provision, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included…” Per OGBUAGU, JSC.

The implication is that every person apart from the four public officers expressly mentioned in Section 308 of the Constitution are subject to investigation, arrest, detention and prosecution. Judicial Officers from the Chief Justice of Nigeria (CJN) to High Court Judges do not enjoy any special protection from criminal proceedings and processes. Immunity cannot be inferred, it must be specifically granted.

Those suggesting that judicial officers in Nigeria are entitled to special protection or immunity should be kind enough to cite the enabling constitutional or statutory provision that supports their position. The truth is that there is none.

Second, is it mandatory for security agencies to seek the consent/intervention of the NJC before investigating, arresting, detaining or prosecuting a judicial officer over alleged crimes?

The NJC is one of the institutions established by Section 153 of the Constitution. The power of the Council is provided for in Paragraph 21 of the Third Schedule to the Constitution. The NJC is empowered inter alia, to recommend the removal from office of judicial officers and exercise disciplinary control over them. By virtue of Section 158 (1) of the Constitution, the NJC is guaranteed constitutional independence and is not subject to the control of any other authority or person when exercising its disciplinary control.

There is no dispute on the disciplinary control of the NJC over judicial officers. What is disputed by some legal commentators is the extent of the disciplinary control. Is it correct to aver that no criminal proceedings or action can be initiated or taken against a judicial officer except on the invitation/directive of the NJC?

At the risk of repetition, where a judicial officer is alleged to have committed a crime, is it mandatory for law enforcement agencies to go through the disciplinary instrumentality of the NJC before taking actions against the erring judicial officer?

There is nothing in the provisions of Paragraph 21 of the Third Schedule to the Constitution that precludes law enforcement agencies from investigating, arresting, detaining or prosecuting a judicial officer in Nigeria for alleged corrupt practices or for other sundry offences. It is my view that a contrary interpretation will have the inescapable effect of conferring an extra-constitutional immunity on judicial officers.

In rule seven (7) of the famous twelve (12) point rule of constitutional interpretation propounded by OBASEKI, JSC in the celebrated case of Attorney-General of Bendel State vs Attorney-General of the Federation (1981) 10 SC. 1; (1981) 1 FNLR 179, the Supreme Court declared thus:

“A constitutional provision should not be construed in such a way as to defeat its evident purpose.”

The purpose of Section 308 of the Constitution as evidently enshrined therein is to protect ONLY the President, Vice President, Governors and Deputy Governors from arrest, detention and prosecution. I submit that any construction on the disciplinary power of the NJC that tends to shield judicial officers from arrest, detention and prosecution will automatically defeat the purpose of Section 308 of the Constitution.

It is my humble view that where the wrongful act of a judicial officer is merely a misconduct and nothing more, the NJC is vested 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 constitute a crime.

Before concluding on this point, there is a widely propagated misconception that needs to be corrected.

It has been argued by some persons that the procedure on how erring judges should be dealt with 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 SSS and others must patiently wait for the determination of the petition by the NJC before activating the criminal process. With respect, that cannot be the correct position.

Ostensibly, this misconception stems from 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 (whether of the body or mind) 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 makes the removal of an erring judicial officer a condition precedent to his investigation, arrest, detention and prosecution by law enforcement agencies.

No law enforcement agency can usurp the disciplinary powers of the NJC by recommending a judge for removal or suspending a judge or exercising other form of disciplinary control over a judicial officer. Likewise the NJC cannot and should not usurp the constitutional cum statutory functions of the law enforcement agencies to investigate crimes, arrest, detain or prosecute any person, including judicial officers, for alleged crimes. Both causes of action can either run concurrently or separately depending on the circumstances of each case. Where for example a judicial officer is accused of corruption which is both an act of professional misconduct and a crime, the aggrieved party and or law enforcement agency may elect to petition the NJC for the removal of the judicial officer from office or proceed directly to subject the erring judicial officer to the criminal justice system or pursue both causes of action at the same time.

The NJC is not a court of law under Section 6 of the Constitution and has no supervisory jurisdiction over law enforcement agencies.

Third, did the SSS act within its statutory power and acceptable procedure?

The SSS is a creation of the National Security Agencies Act of 1986. The power of the SSS as stipulated in Section 3 of the Act is as follows:

(3) The State Security Service shall be charged with responsibility for-

(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.

Going by the provisions of paragraphs (a) and (b) supra, it is apparent that the SSS stricto sensu ( in the strict sense) has no power to arrest judicial officers for alleged economic and financial crimes. However, a dispassionate attention should be paid to the wordings and purport of paragraph (c) above. Clearly, that provision (paragraph C) gives the President the power to enlarge the scope of responsibilities of the SSS relating to the internal security within Nigeria. Section 6 of the Act goes further to empower the President to issue an Instrument, a subsidiary legislation, on the manner the SSS should exercise its powers, etc.

In exercise of the power in Sections 3 and 6 of the National Security Agencies Act 1986, former Head of State, General Abdusalam Abubakar in 1999 promulgated the State Security Service Instrument One of 1999. By virtue of that Instrument, the responsibilities of the SSS was extended to include the prevention, detection and investigation of economic crimes of national security dimension, among other things. It is important to emphasize that the National Security Agencies Act has a special constitutional flavour being one of the four federal enactments listed in Section 315 (5) of the Constitution. The consequence is that it cannot be altered like ordinary Acts of the National Assembly. It has the same alteration procedure like the Constitution as laid down in Section 9 (2) of the Constitution.

According to the SSS, the affected judicial officers were arrested based on allegations of corrupt practices and professional misconduct. The SSS 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.

The question is, does the grave allegations levelled against the Judges and the alleged offences committed by them constitute “economic crimes of national security dimension” to bring same within the purview of the additional powers of the SSS pursuant to Instrument One of 1999?

It is advisable for us to examine the role of judicial officers in nation building. A corrupt judge is not only a threat to justice and the rule of law but to the society and the nation. Judges are by their calling empowered to make binding decisions on behalf of the rest of the society. When judgments are obtained fraudulently, the society and the nation are endangered. A corrupt judge is more dangerous than a kidnapper or an armed robber. The worst form of corruption is judicial corruption.

Though the Economic and Financial Crimes Commission (EFCC) is the specialised and coordinating agency for the detection, prevention and prosecution of economic and financial crimes, economic crimes committed by a judicial officer is far more serious and damaging than those of other categories of persons and there is some wisdom is categorizing same as “economic crimes of national security dimension” for which the SSS can act upon.

On the manner the searches and arrests were conducted, I concede that the SSS acted in a rather brash and indecorous manner. However, facts are sacred and the law should be separated from sentiments. It is reported that the SSS obtained both search and arrest warrants. What is in dispute is whether the warrants covered all the affected judicial officers and the somewhat “undemocratic” manner they were executed, particularly the time.

The relevant principal law on the issuance of a search/arrest warrant is the Administration of Criminal Justice Act 2015 (ACJA). Part 18 of the ACJA is devoted to search warrants, Section 144 thereof allows for the issuance of a search warrant on any house. The warrant may also authorize the officer or other person to arrest the occupier of the house or place where any incriminating item or thing is found during the search. Where this is specified in the search warrant, there would be no need to obtain an arrest warrant separately. By Section 146 of the ACJA, a search warrant shall be under the hand of a Judge, Magistrate or Justice of the Peace issuing it and shall remain in force until it is executed or cancelled by the court which issued it.

One important provision under Part 18 of the ACJA that those criticizing the SSS should note is Section 148. It states unequivocally thus:

“A search warrant may be issued and executed at any time on any day, including a Sunday or Public Holiday.”

However, under Section 151 of the ACJA, a search warrant cannot be executed outside jurisdiction of the court or Justice of the Peace issuing it except with the consent of the court within whose jurisdiction the search is to be made. It is doubtful whether the SSS complied with this requirement before embarking on the search at the houses of some of the judges located outside the Federal Capital Territory, Abuja where the search warrant must have been issued.

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 SSS 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 SSS. Accordingly, it is misleading for anyone to suggest that the SSS 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. Section 149 (1) of the ACJA states thus:

“Where any building liable to be search is closed, a person residing in or being in charge of the building, thing or place, shall on demand of the police officer or other person executing the search warrant, allow him free and unhindered access to it and afford all reasonable facilities for its search.”

By the combined effect of Sections 9, 10, 12, 13 and 149 (2) of the ACJA the person executing a search warrant and or arrest warrant is empowered to “break open any outer or inner door or window of any house or place” where unhindered access is denied upon demand. If the SSS had requested for unhindered access into the house of the affected judge and they were denied, the breaking of the door of the judge’s house was lawful as expressly stated in the ACJA.

Four, is illegally obtained evidence admissible in law? In other words, where evidence is recovered in contravention of the procedure for search of houses and places, will the court admit same?

Every lawyer in this country that is worth his salt knows the answer to this question. The answer is YES – illegally obtained evidence is admissible. The Supreme Court held so in unmistakable terms right from 1968 in the case of Musa Sadau & Anor v. The State (1968) NMLR 208. Also 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”.

It is an elementary rule of evidence that what determines admissibility is relevance and not how the evidence was procured. See Section 1 of the Evidence Act 2011 and the cases of Torti v. Ukpabi (1984) 1 SCNLR 214 AT 236 – 237 and 239 24O and Lasun v. Awoyemi (2009) 16 NWLR (Pt.1168) 513 at 553.

Accordingly the evidence allegedly recovered from the houses of the judges are admissible in law whether search warrants were obtained or not or properly executed or not. The court will still go ahead to admit the evidence irrespective of protestations against its illegality. This may not sound comforting, but that is the law.

By way of concluding remarks, I will like to make some points clear. The Judiciary is a sacred institution that should not be desecrated by any person. However, there is no sacredness in corruption. Judges must at all times be treated with decency and respect befitting of their office but corrupt judges should be identified and treated like other criminals in the society. Nigeria is blessed with some of the best judicial brains that can be found anywhere in the world, but the nefarious activities of the bad eggs on the Bench should never be tolerated under any guise.

Judges are not above the law.

Like other public servants, judges in Nigeria are paid in Naira, not in Dollars, Pounds, Euro or Cedis. Judges are not Bureau De Change operators and are not permitted to engage in business adventures. Therefore, the Nigerian people with whose taxes and resources the Judiciary is funded deserves to know how their Lordships came about the mind-blowing hard currencies found in their homes? The public deserves to know how their Lordships came about the assets allegedly traced to them. Judges who are living above their means should be able to answer some questions from the law enforcement agencies.

Their Lordships are presumed innocent until proved guilty and they should be given fair trial and fair hearing.

Instead of threatening the President, the Nigerian Bar Association (NBA) should tell us what they have done about the recent brutal murder of their member in Rivers State, Mr. Ken Atsuwete? Where was the NBA when a High Court Judge was assaulted in open court in Ekiti State by political thugs led by a governor? Why did the NBA not declare a state of emergency on the judiciary when Justice Ayo Isa Salami was humiliated and disgraced out of the Bench by the administration of Goodluck Jonathan despite the NJC’s recommendation that he should be reinstated? What has the NBA done to Mr. Ricky Tarfa, SAN for allegedly bribing judges? Whose interest is the NBA fighting for?

Records have shown that judges in other jurisdictions, including the United States have been arrested, prosecuted and jailed for corruption and other criminal conducts. Ghana recently purged its judiciary. If this is the time to uproot the pervasive cancer of corruption in the Nigerian Judiciary it is a welcome development and should be supported. Without checks and balances, the doctrine of separation of powers is useless and unworkable.

We cannot have different standards for the rule of law; one for the influential and another for the poor or one for the judges and another for the rest rest us.

Thank you.

Inibehe Effiong is a legal practitioner and convener of the Coalition of Human Rights Defenders (COHRD) and can be reached at: [email protected]