By Emeka Nwadioke
Judicial corruption is a grievous menace to any society. It ought to be
classified as a ‘crime against humanity.’ For lawyers who have been at the
receiving end of judicial corruption, it is not difficult to see why they
may readily support the midnight raids by Department of State Security
(DSS) operatives on the residences of some judicial officers penultimate
week. It is doubly frustrating when, convinced that one has a good case and
having applied oneself to elucidate the fine points of the case, one finds
that such efforts are sacrificed on the altar of nocturnal meetings where
justice is bargained away like salt and pepper.
It was the inimitable Justice Chukwudifu Oputa (now deceased) who painted a
graphic picture of the hazards posed by a corrupt judge thus: “…. No one
should go to the Bench to amass wealth, for money corrupts and pollutes not
only the channels of justice but also the very stream itself. It is a
calamity to have a corrupt Judge. The passing away of a great Advocate does
not pose such public danger as the appearance of a corrupt Judge on the
Bench, for in the latter instance, the public interest is bound to suffer
and elegant justice is mocked, debased, depreciated and auctioned. When
justice is bought and sold, there is no more hope for society. What our
society needs is an honest, trusted and trustworthy judiciary.”
It is therefore agreed that, of all species of corruption, judicial
corruption ranks very high on the ladder of ignominy. If so, why then the
hue and cry over the arrest of the affected judicial officers, including
two justices of the Supreme Court?
A major reason is that stated by former Chief Justice of Nigeria, Hon.
Justice Dahiru Musdapher when he said: “However, as I further pointed out,
it is of equal importance that accusations of impropriety against judicial
officers should not be made lightly. It must be appreciated that the
integrity of the Judge and the judiciary is a sacred public trust that must
be protected and upheld by all. Today, mere suspicions of impropriety
emanating from unconfirmed rumours, together with foul innuendoes find
ready spaces in our media without proper concern for the far reaching
damage being done to not only the Judge in question but the entire
institution of justice.”
Also crucial is the fact that law and order thrives on certainty and
predictability. Our jurisprudence is founded on the need to reduce, and
ultimately eliminate, arbitrariness in human affairs. The process is just
as important as the outcomes.
Even more worrisome is that it is increasingly becoming difficult to keep
track of the ‘anti-graft’ agencies. Aside from the Independent Corrupt
Practices Commission (ICPC), the Economic and Financial Crimes Commission
(EFCC) and the long-suffering Nigeria Police Force, the DSS has now joined
the fray as a graft-bursting agency.
Section 2(3) of the National Security Agencies Act N74 LFN 2011 sets out
the duties of the DSS, otherwise called the State Security Service (SSS) as
follows: “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.
It has been stated that pursuant to Section 6 of the NSA Act, former Head
of State, General Abdulsalami Abubakar in 1999 promulgated the State
Security Service Instrument One of 1999. The Instrument enlarged the duties
of the agency to include the prevention, detection and investigation of
economic crimes of national security dimension, among other things. Having
preceded the 1999 Constitution, the NSA Act has a saving provision in
Section 315 (5)(c) of the Constitution. This is deemed to have conferred a
constitutional flavor on the NSA Act.
In justifying the clampdown, the DSS claimed that it was “in line with its
(DSS) core mandate,” adding that the action was “based on allegations of
corruption and other acts of professional misconduct by a few of the
suspected Judges.” The DSS also claimed that “we have been monitoring the
expensive and luxurious lifestyle of some of the Judges as well as
complaints from the concerned public over judgment obtained fraudulently
and on the basis (of) amounts of money paid.” It is apparent that some of
these claims do not add up. It is also asserted that even with a combined
reading of the NSA Act and the Instrument One of 1999, it is difficult to
see how judicial corruption is a “core mandate” of the DSS.
The DSS also referred to “complaints from the concerned public,” though it
failed to name the complainants. Indeed, it was not until after the arrests
that the Attorney-General of the Federation, Mr. Abubakar Malami (SAN)
reportedly sent some petitions by CESNAC to DSS. It is clear that the
raison d’etre of the DSS/SSS is the “internal security” of Nigeria. As NBA
President, Mr. Abubakar Mahmoud (SAN) has observed, “The DSS must be
restricted to its constitutional and statutory duties. Its core mandate is
guaranteeing internal national security. It is not its duty to conduct
police investigations or arraign and prosecute cases of corruption. It is
not its responsibility to conduct sting operations on judges for corruption
or professional misconduct in the middle of the night.”
Even more worrisome is that the era of media trials is still alive and well
within our security agencies. Or how does one reconcile the wild assertion
by the DSS Director-General, Mr. Lawan Daura that certain judgements were
“obtained fraudulently and on the basis amounts of money paid.” And to
think that the judicial officers are yet to be arraigned, and that Section
36(5) guarantees a presumption of innocence to all citizens until proven
guilty.
Further, in light of the current debacle, there have been spirited efforts
to define “internal security” in very elastic terms, merely for the purpose
of accommodating the apparent breach of mandate by the DSS/SSS.
There are clear disciplinary procedures set out by the Nigerian
Constitution to deal with judicial officers who abuse their office through
corrupt enrichment and sundry misfeasance. It needs no emphasis that the
NSA Act cannot override the grundnorm, to wit the Constitution.
Part I of the Third Schedule to the Constitution provides that the Federal
Judicial Service Commission shall (13)(b) “recommend to the National
Judicial Council, the removal from office of the judicial officers
specified in subparagraph (a) of this paragraph.”
Item 21 of the schedule also provides that “The National Judicial Council
shall have power to – (b) “recommend to the President the removal from
office of the judicial officers specified in sub-paragraph (a) of this
paragraph and to exercise disciplinary control over such officers; (c)
xxxxxxxx (d) recommend to the Governors the removal from the office of the
judicial officers in sub-paragraph (c) of this paragraph, and to exercise
disciplinary control over such officers. (e) xxxxxxxxx (f) advise the
President and Governors on any matter pertaining to the judiciary as may be
referred to the Council by the President or the Governors; (g) xxxxxxxxx
(i) deal with all other matters relating to broad issues of policy and
administration.” Perhaps it bears repeating that all the judges arrested by
the DSS are under the disciplinary radar of both the Federal Judicial
Service Commission and the National Judicial Council (NJC).
Also, Rule 3(F)(1) of the Code of Conduct for Judicial Officers provides
that “A Judicial Officer and members of his family shall neither ask for
nor accept any gift, bequest, favour, or loan on account of anything done
or omitted to be done by him in the discharge of his duties.” Article (iii)
of the Preamble to the Code unequivocally states that “Violation of any of
the rules contained in this Code shall constitute judicial misconduct or
misbehaviour and may entail disciplinary action.”
It is contended that the allegations made by the DSS fall within the ambit
of “judicial misconduct or misbehavior” for which the affected judicial
officers should be proceeded against by the NJC, not the DSS, especially in
light of Rule 3(F)(1) of the Code. It is only after they have been adjudged
guilty and sanctioned by the NJC that the appropriate agency may step in to
proceed against those found culpable of criminal breaches. Indeed, it will
presently become apparent why this procedure is a no-brainer.
Assuming that the DSS proceeds, as promised, to arraign the affected
judicial officers before the courts, they are bound to be granted bail (the
DSS had granted them bail on self-recognisance) while the trials continue.
During this period, there is no plausible reason why the judicial officers,
having not been removed vide Section 292 (1)(b) of the Constitution, cannot
continue to sit as judges in our hallowed temples of justice, even in the
highest court of the land! Indeed, a time may yet come when litigants may
be told that the court will not sit because the judge is facing trial or
awaiting sentencing before another judge! How does this noxious scenario
promote a “respected and respectable Judiciary” as envisaged by the Code?
It would not seem that the Constitution contemplated this absurdity.
There is every reason to argue that the NJC should timeously dispose of
petitions brought against judicial officers. Tardiness is not an option.
Some have also argued for a reform of the NJC model to ensure its
effectiveness. But a usurpation of the role of the NJC is also out of sync
with the public policy imperatives of the current debacle, moreso given the
antecedents of the DSS. Otherwise, as grievous as judicial corruption is,
it would seem that combating Boko Haram insurgents, terrorists, kidnappers
and pipeline vandals is more in sync with the core mandate of the DSS.
In light of the foregoing, there is a growing perception that the DSS is
increasingly being deployed to chastise perceived enemies of the
government. The reported invasion of the Akwa-Ibom Government House by DSS
operatives and the cat-and-mouse game between DSS and Ekiti State
legislators are still fresh in our memory. Instructively, the DSS has
stated that some of the current spate of arrests were linked to “judgment
obtained fraudulently,” moreso with the arrest of Justice Muazu Pindiga,
erstwhile chairman of the Rivers State Election Petition Tribunal.
As one commentator has poignantly observed, “One thing is of note: It seems
anybody who gives judgment against Mr. President or his allies (agencies
inclusive) are corrupt and henceforth once the govt (sic) takes you to
court you must be convicted or the judge is corrupt.” Justices Adeniyi
Ademola who are handling the case of former National Security Adviser Sambo
Dasuki and Nnamdi Dimgba who had berated the DSS for disobeying his earlier
rulings are said to be victims of this brand of anti-graft war. Indeed, it
is reported that not even the observation by Justice Dimgba that his name
was not on the Search Warrant could deter the DSS operatives. What is more,
President Muhammadu Buhari had lamented his unpleasant brushes with
Nigeria’s justice sector. Could the DSS have latched on the recommendation
by the NJC that Justice Kabiru Auta of the Kano State High Court be
dismissed and prosecuted to pounce on its perceived enemies? Hopefully, the
days ahead will bring clarity to this macabre dance.
* *Nwadioke is a Lagos based lawyer and Publicity Secretary of NBA Lagos
Branch. emekan88@gmail.com <emekan88@gmail.com>*