Stepping on ‘Holy Ground’

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The recent arrests and raiding of the homes of some federal Judges have raised unintended dust in the polity especially among members of the legal profession, who argued that it is a usurpation of the duties of the National Judicial Council and dismissed the action as unconstitutional by all standards. But can these arguments be located within context of alleged corruption and abuse of office against the judges, asks Ugo Aliogo

The recent arrests of some federal judges by the Department of State Services (DSS) have triggered widespread reactions and comments from members of the legal profession. The arrest, according to the DSS, was due to alleged involvement of the judges in corrupt practices. The DSS said it recovered huge amounts of money in different currencies from three of the judges arrested, totaling N362,519,611. They also claimed that there were credible evidences concerning the activities of the judges.

A source close to the DSS gave the amounts recovered from one of the three judges as N54 million, $171, 779, £80, Rupees 1,010.00, €4,400.00. Also, the following, N35.208 million, $319,475, £25,890, €280, 380 UAE currency, 420 Gambia Dalais, 4 Argentine notes, and 20 Ghana Cedis was recovered from a second judge, while N4.35 million, $38,833, £25,890, and €1,000 was taken from the third judge, the source said. He gave a breakdown of the recovered money as $530,087, £25,970, €5,680, N93.558, 1,010 Rupees, 380UAE currency, 430 Gambia Dalais, 4 Argentine notes, and 20 Ghana Cedis.

By the provisions of the constitution, the National Judicial Council (NJC) is the body statutorily responsible for the appointment, promotion, and discipline of judges in the country. The Council is one of the federal executive bodies created by virtue of Section 153 of the 1999 Constitution of the Federal Republic of Nigeria.
In order to insulate the Judiciary from the whims and caprices of the Executive and guarantee the independence of this arm of government, which is a vital for any democratic government, the NJC was created and vested with enormous powers and functions which the erstwhile Advisory Judicial Committee (AJC) it replaced did not have.

This implies that if other agencies or bodies are found performing these roles, it could be termed unconstitutional, usurpation of NJC’s duties and flagrant disregard for the law of the land. The arguments from some quarters have questioned the rationale for the arrest, and the raiding of the houses of the judges. The argument is whether the DSS obtained the necessary arrest and search warrants from a competent court of jurisdiction before embarking on such action.

According to legal provisions, the authority to issue a search warrant is vested in a Judge or Magistrate under section 107 of the Criminal Procedure Act and Section 74, 75 and 76 of the Criminal Procedure Code. A Justice of the Peace is also a competent person to issue a search warrant as well as a superior police officer above the rank of Cadet Assistant Superintendent of Police, preferably a Chief Superintendent of Police (CSP).

Such power of the superior police officer to issue search warrant is limited only to matters relating to recovery of stolen property or other such proprietary offences. Warrants when issued remain in force until it is either executed or cancelled by the court that issued it as provided under Section 109 (2) of the Criminal Procedure Act.

A search warrant may be issued and executed on any day including a Sunday and public holiday as provided under Section 111 (1) of the Criminal Procedure Act and shall be executed between the hours of 5a.m and 8p.m unless there is an endorsement permitting its execution at any other time.

Despite this legal provision, reports had it that a combined team of DSS operatives and officers of the Nigeria Police Force, who attempted to search the house of Justice Mohammed Liman of the Federal High Court, Port Harcourt, and perhaps, also arrest him were fiercely resisted by the judge and Rivers State Governor Nyesom Wike by 1a.m, on Saturday, October 8. In defending their actions, the DSS stated that the raid on the judges’ houses followed due process.

They explained that these operations were based on allegations of corruptions and other acts of professional misconduct by a few of the suspected judges, adding that their action is in line with its core mandate. “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 amounts of money paid.”

DSS in the statement added: “The judges involved were invited, upon which due diligence was exhibited and their premises searched. The searches have uncovered huge raw cash of various denominations, local and foreign currencies, with real estate worth several millions of Naira and documents affirming unholy acts by these judges.
“Meanwhile, some of them have made useful statements while a few have declined even with the glaring evidences that were found against them in terms of material cash, documents and property recovered pointing to their compromise.”

In apparent reference to the Port Harcourt incident, DSS said: “In one of the states, where the Service operations were conducted, credible intelligence revealed that the judge had two million United States Dollars ($2,000,000 USD) stashed in his house.

“When he was approached for due search to be conducted, he in concert with the state governor, mobilised thugs against the Service team. The team restrained itself in the face of unbridled provocative activities by those brought in by the governor. Unfortunately, the judge and governor also engaged the tacit support of a sister security agency.”

The National President of the Committee for the Defence of Human Rights (CDHR) Malachy Ugwummadu has described the arrests carried out by the DSS as an intimidation of judicial officers in the discharge of their duties, adding that if left unchecked they (DSS) would invade the hallowed precincts of the courts and desecrate them even during sittings.

He called on Buhari to rise up to the occasion as well as called for a full briefing into the circumstances of this breach of public peace, and obstruction of public officers in the discharge of their duties.

“The purpose will be to sanction the leadership of that organisation by sacking whoever must have given this directive if he or she cannot defend it and call for the immediate and unconditional release of the abducted Judges. The 1999 Constitution under Section 36(1) dealing with fair hearing insists that in the determination of the rights and privileges of every Nigerians, they must be given fair-hearing within a reasonable time by a competent court of law constituted in such a manner as to guarantee its independence and impartiality,” he noted.

Ugwummadu further stated that the judges, by the ethics and Oath of their offices cannot publicly join issues with their traducers, while calling on the NJC, Nigeria Bar Association (NBA) Nigeria Union of Journalists (NUJ) civil societies and pro-democracy organisations committed to the cause of justice and a civilised society to speak up in condemnation of the act.

“Such deplorable act reared its ugly head with Governor Fayose in Ekiti State and may become a standard practice reminiscent of military intolerance to institutions and divergent views if we fail to put halt to this trend. Democracy cannot survive in any clime unless the separation of power and the acceptable measure of autonomy exist amongst the three arms of Government.

“Clearly, there are implications of what has just happened beyond the sense of fear and harassment that now envelope the judiciary in the discharge of their duties. There are also the cost implications on the State, because most of the Judges, who are subjected to these treatments and in hiding this weekend may not show up for work on Monday, thereby delaying or defeating the end of justice in the respective matters that they may be handling.

“The Buhari administration must be reminded that peace in a society is not the absence of war but the presence of justice which can only be dispensed by those being hounded now.”
The operatives also invaded the houses of judges already sent packing by the NJC. The house of the former Chief Judge of Enugu State, Justice I.A. Umezulike, was invaded in Enugu, while a former judge of Kano State High Court, Kabiru Auta, was also raided in Kano. Both judges were however dismissed last week by the NJC. Ngwuta and Pindiga were later released.

A Public Affairs Analyst, Sage Vincent, argued that the act of breaking into the houses of the judge is a Gestapo operation which should be condemned, noting that the appropriate body that is supposed to handle the issue is the NJC after a petition must have been lodged. He expressed displeasure that the DSS in its face-saving move are circulating a paper without a letterhead (online) and appropriate signature as money seized from the operation.
“If they don’t want negative press, they should have stated clearly in a transparent manner. The actions of the DSS and the Police clearly is unconstitutional and a desecration of the principles of democracy which is the rule of law and due process. This type of total disregard for due process should not be condoned in whatever guise.”

Where the NBA Stands
President of the Nigeria Bar Association (NBA), Abubakar Balarabe Mahmoud, noted that the current administration was not under military rule and that the body doesn’t accept this unholy event and Gestapo-style operation.

He called on Buhari to immediately caution all the state security agencies to respect the rule of law and due process, adding that regarding any issues affecting the judicial officers, there are established procedures for handling them and “we demand that this constitutional process must be obeyed.”

Mahmoud, who addressed the press alongside four past presidents of the Association – Chief Wole Olanipekun (SAN), Dr. Olisa Agbakoba (SAN), Mr. J.B. Daudu (SAN) and Augustine Alegeh (SAN) said “Given the unfolding nature of the event and the seriousness of the situation, the NBA hereby declares a state of emergency as it affects the affairs of the judiciary and I hereby constitute a crisis management team, comprising all past presidents of the association.

“I want to, on behalf of the association, make the very following clear and unequivocal demands: we demand the immediate and unconditional release of all the judges abducted from about 9p.m yesterday (Friday). The release must be done immediately and without any conditions. Two, we demand that the Department of State Services should limit itself to its statutory and constitutional responsibilities. I’ll be meeting with the CJN later tonight or Monday. There will be consequences if these demands are not met,” he said.

Unfortunately, while condemning the actions of the security agencies, no one has attempted to verity the claims against the judges and situate them within the context of the debate of constitutionality or abuse of the rule of law and criminality. Sadly too, whilst those in the legal profession know that ethics have been thrown to the dogs in the discharge of duties in this critical arm of government, there is a conscious attempt to subtly play it down as if it does not exist.

Over the years, Nigerians seemed to have have lost confidence with the courts not only because of their slow pace of justice delivery but the illogical, incoherent and sometimes the incongruous decisions and judgments the judges deliver.

But the expectation has been that the NJC would rise to the need to tackle the incessant conflicting and contradictory orders and judgments especially by courts of concurrent jurisdiction. Not only have these orders and judgments caused Nigeria huge embarrassment, they have caused serious harm to the country’s jurisprudence, especially to up future lawyers.

Isn’t sad that apart from political cases which are often treated with utmost dispatch from the High Court to the Supreme Court, other cases such as criminal, commercial and other civil matters take up to a minimum of 10 years to get to the apex court and be concluded. Checks revealed that while it takes to four to six years to conclude a case at the High Courts, whether at the state or federal level, it takes almost the same number of years for the same case to go through the Court of Appeal upon appeal. At the Supreme Court, it could take far up to eight to 10 years.

It is instructive to note that the third arm of government is seen as an indispensable tool in any meaningful anti-graft war. Hence, it is taken for granted that in a society buffeted by corruption, a courageous, independent, unbiased and financially autonomous judiciary is a most needed ally against the continued reign of the monster of corruption and graft in the country.

But sadly Nigeria has not been particularly fortunate in its drive to evolve functional democratic governance since 1999, which could deliver a just society, principally because of the greed of its political class, and the attendant impunity accentuated by an ineffective judiciary. This has set a lot of analysts wondering if a corruption institution can actually purge the country of the malaise.

A recent independent survey on crime and corruption recently revealed that the judiciary in the country is being irretrievably destroyed by corruption. The survey shocked many Nigerians when it named the judiciary as one of the institutions where there is massive corruption. According to it, “Nigerian courts of law receive the biggest and highest bribes from citizens among all institutions in which corruption is rampant.”

Although it particularly stressed that bribery in the third arm of government was less frequent than in many other agencies and other organisations, most of the respondents to the survey admitted that they have paid the biggest bribes to the courts in huge transactions.

The world over, court judgments are supposed to be highly confidential and secretive until delivered. When judgments are to be delivered, people are supposed to be on tenterhooks, waiting with bated breath for what would be the final word from the judge. Unfortunately, this is not the case in Nigeria today. These days before some judgments are delivered interested parties already knew what was waiting for them.

Even much more troubling is the allegation that judges often shield politicians and other government officials charged for corruption from prosecution, either by accident or design. Many analysts have argued that since corruption has been identified as one of the greatest problems confronting the country, the judiciary needs to play a critical role to eradicate it. It is believed that the general lack of courage in the Nigerian judiciary to deal with corruption frontally was responsible for the upsurge of the malaise.

President Buhari said this much at a retreat and appealed to the judiciary to buckle up and whip its men in order. But no one took this advice seriously until the crackdown on corrupt judges, which the judiciary now considers as an attempt to curtail its independence. Perhaps, the judiciary should do more of introspection and see how much of damage it has done to the psyche of the country in her journey to nationhood and in what ways it could help contain the growing monster of corruption.

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Unfortunately, while condemning the actions of the security agencies, no one has attempted to verity the claims against the judges and situate them within the context of the debate of constitutionality or abuse of the rule of law and criminality. Sadly too, whilst those in the legal profession know that ethics have been thrown to the dogs in the discharge of duties in this critical arm of government, there is a conscious attempt to subtly play it down as if it does not exist