The
Legal society and some members of the general public have been up in arms over
the arrest of some senior judges in Nigeria over the weekend. Conflicting
details keep filtering out but apparently these judges who have been under surveillance
by the DSS, were arrested and search warrants issued to search their premises, the
searches carried out discovered piles of cash stocked in their houses that were
allegedly paid to them to influence cases.
Immediately
I heard the news my first reaction was that I hope due process was followed,
The Judiciary is supposed to be an independent arm of government, I hoped that
the sanctity of its independence had not been polluted with this action. Regardless
of the severity of the corruption allegations against the judges what is the
position of the law on this matter.
Judicial Immunity is a form of legal immunity which protects judges and others employed by the judiciary from liability resulting from their judicial actions. Judicial immunity does not protect judges from suits stemming from administrative decisions made while off the bench, like hiring and firing decisions. But immunity generally does extend to all judicial decisions in which the judge has proper jurisdiction, https://en.wikipedia.org/wiki/Judicial_immunity it’s very clear that Judges do not have any immunity in criminal or civil matters.
Search Warrant: Part 18 Search Warrant of the newly signed Administration of Criminal Justice Act of 2015.
Section 143
Where an investigation under this act is being made by a police officer, he may apply to a court of justice of the peace within the local limits of whose jurisdiction he is for the issue of a search warrant.
Section 148
A search warrant may be issued and executed at any time on any day, including a Sunday or public holiday.
149 (1)
Where any building, thing or place liable to 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.
149 (2)
Where access into the building, thing or place cannot be obtained, the police officer or any other person executing the search warrant may proceed in the manner prescribed by section 9, 10, 12, and 13 of this Act.
12 (2)
Where access to a house or place cannot be obtained under subsection (1) of this section, the person or police officer may enter the house or place and search it for the suspect to be arrested and in order to effect an entrance into the house or place may break open any outer or inner door or window of any house or place. Whether that of the suspect to be arrested or any other person or otherwise effect entry into such house or place if after notification of his authority and purpose and demand of admittance duly made, he cannot obtain admittance.
DSS and ARREST
In
1999, in order to give the service more bite and reposition it for greater
efficiency, by virtue of Instrument No. 1 of 1999 relating to the general
duties of the SSS as set out in Section 2-(3) of the decree’s objectives, the
SSS is mandated to carry out the
following functions amongst others :
(i)
Prevention, detection and investigation of:
•Threat of Espionage;
•Threat of Subversion;
•Threat of Sabotage;
•Economic crimes of national security
dimension;
•Terrorist activities;
•Separatist agitations and
inter-group conflicts;
•Threat
to law and order
NJC
In
furtherance of the doctrine of separation of powers, the National Judicial
Council is the body primarily charged with the discipline and appointment of
judges involving violations of the Code of Conduct of judges in S.292(1) of the
Constitution.
A petition can be brought against a judicial officer and shall be written to the National Judicial Council (NJC) who shall give a directive for the investigation of the allegation against the particular judicial officer. The investigation must be based on the strict adherence to the principles of fair hearing as is provided for in the Constitution. The judicial officer in question must be properly informed of the allegation leveled against him and the petitioner must support his allegations with credible evidence.
On the event that the judicial officer is found guilty, there are certain penalties that he could face. These penalties are as prescribed by the laws which regulate the conduct of these men and women of the judiciary.
As stated earlier several conflicting information has
filtered out from the actions of the DSS and the following
pertinent issues need to be addressed.
1)
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, did the DSS comply with this directive when carrying out
the search on the premises of the Judges?
2)
Does the DSS have power to investigate and
arrest civilians on offences relating to bribery and corruption? The amended
instrument of the DSS ACT , Instrument 1, of 1999 appears to give the DSS leeway
however does the grave allegations leveled 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? This is debatable but I am of the opinion
that the EFCC would be a more appropriate body to have investigated these
allegations.
3) Judges
are not above the law. We have already clarified that Judges do not have
immunity against criminal offences, however a lot of pundits have posited that
the appropriate process would have been to write a petition to the NJC and have
the judges removed if found guilty of these offences, but the impartiality of
the NJC is called into question and there appears to be a misconception (that I previously had) 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. This 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.
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.
It is my opinion that both causes of
action can either run concurrently or separately depending on the circumstances
of each case.
In conclusion this is a very
controversial action that has been carried out by the DSS, If members of the
public have filed petitions to the organization complaining about judgments of
the Federal and Appellate courts one would think the appropriate action to take
is to file a petition with the NJC, but perhaps there is more than meets the eyes
in this instance, perhaps the Government through the use of its security
agencies is fed up with the “alleged” corruption that goes on in the Judiciary
and are not interested in going through the bureaucratic process, It remains to
be seen if the DSS acted within its capacity in their conduct of this
investigation, it also remains to be seen how the Judiciary will react to this
alleged affront of their members, personally after the hours of research of
information I undertook on this issue there are a lot of grey areas that still
need to be addressed.
These Judges are not above the Law,
and it appears that the Executive might have just found a gateway in the laws as an opportunity to sanitize the judiciary.
I predict we will see a lot of
rhetoric, threats and law suits et all from this action.
Interesting Times
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