As Reactions Continue on Judges’ Arrest

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Tobi Soniyi looks at the recent clampdown on judges alleged to be involved in corrupt practices
There is no shortage of opinions on the rationality, constitutionally and desirability of the arrest of judges and the raids on their houses by operatives of the Department of State Service. While some rationalise and justify the arrest, others think it was an overkill and a brazen illegality. Some newspapers have even written editorials to support the arrest while others wrote against it.

However, there is a point that unites all the commentators: they were not against fighting corruption in the judiciary. They tend to differ on the legality or otherwise of the approach adopted by the federal government.

For Professor Itse Sagay, SAN, who is chairman of the Presidential Advisory Committee on Corruption, there was nothing wrong with how the judges were arrested because they were not above the law. He is of the view that if the DSS had not operated the way it did, vital evidence would not have been obtained. However, he said the whole thing might still turn out to be a fluke, point out that the judges are protected by the constitution and can sue if it turns out that they were unjustifiably arrested.

But for Dr Olisa Agbakoba, SAN, one of those who risked their lives for Nigeria to adopt democracy as a system of government, breaking into judges’ houses at midnight was unnecessary to fight corruption. That approach, he contended, should be reserved for hardened criminals.

Another activist and lawyer, Femi Falana, SAN, blamed the National Judicial Council for not doing enough to punish corrupt judicial officers. Falana called for the release of the judges but demanded their prosecution by the Attorney General of the Federation.

He said: “As the detained judges are presumed innocent until the contrary is proved by the state, they should be admitted to bail in self-recognizance. At the same time, the office of the Attorney-General of the Federation should ensure that the suspects are arraigned in court without any further delay.

“However, it is a matter of grave concern that the legal profession has allowed the denigration of the hallowed temple of justice because of the misconduct of a few corrupt judges. For several years, judges who committed grave criminal offences were not prosecuted but merely retired by the authorities on the recommendation of the National Judicial Council.”

However, another Senior Advocate of Nigeria, ‎ Chief Mike Ozekhome, differed. He described the attack as dangerous and against the very foundation of democracy. He alleged that intimidation by the current administration started long before this attack and that the silence of Nigerians created the room for what he described as the increase in the abuse of democracy.

Ozekhome stated, “It started with political opponents and opposition. Some of us cried out. Many gloated with éclat and a sense of victory at opponents’ horrific travails. Then, they moved against some very senior and well respected lawyers being rubbished. Some clapped. They said it was anti-corruption. We cried out. It extended quickly to the National Assembly, another different arm of government. Many hailed the government as tough, no-nonsense and anti-corruption- inclined. Some of us warned.

“Now, the Judiciary, up to the very apex court of the land, the Supreme Court, has been targeted and is now being intimidated, humiliated and annexed.”
Ozekhome warned that if the clampdown was allowed to continue, the media would be the next target of the SSS.

To a U.S. based lawyer, Emanuel Ogebe, the action of the SSS represents the dictatorial style of President Muhammadu Buhari. In a statement, Ogebe said the attack on the judiciary was worse than any in the history of Nigeria’s dictatorship. The lwyer said, “Here is why the president goofed.

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. This peer review ombudsman agency serves as a bulwark to arbitrary and vindictive attacks on judges from the executive or legislative by conducting internal self-cleansing.”

The National Youth Council of Nigeria also condemned the attack and vowed to stage a nation-wide protest to register its concern. In a statement signed by its president, Ikenga Ugochinyere, the council described the attack as shameful and grossly undemocratic.

He said, “We totally condemn the arrests of these jurists as their arrests could have been done in civilised ways. Who says it is only under the cover of darkness that they can be arrested? Was the onslaught by that time of the night an opportunity to do anything the Service will not want Nigerians to know about? Was it necessary to pull down the doors of the houses of non-violent judges to execute an arrest warrant?

“While we note that no one is above the law and that security agencies can arrest anyone who commits a crime, we wonder how such highly placed citizens who were not known to be violent could be arrested with a combined team of SSS and police and in such a Gestapo style.”
The Socio-Economic Rights and Accountability Project, asked Buhari to order the immediate release of judges arrested by the DSS or face global legal action.

In a letter dated October 9 SERAP asked the president to order the release of the judges and an end to what it called the undue intimidation of the judiciary and Nigerians in general by the SSS.
“If following the receipt and/or publication of this letter, your government fails or refuses to immediately and unconditionally release the judges as requested, SERAP would promptly consider appropriate legal options nationally and internationally to ensure the full and effective implementation of our requests,” it said.

Justification
When he was corned by journalists at an event in Abuja, the Attorney General of the Federation and Minister for Justice, Abubakar Malami, SAN, said there was nothing wrong with the actions of the DSS. According to him, what happened in relation to the affected judges was a mere investigation of criminal allegations.

He argued that no one was immune to investigation under the Nigerian law, noting that once allegation of criminality was raised, it was the duty of the relevant investigating agencies to carry out investigation.

He said: “The fundamental consideration is whether there is an allegation of the commission of a crime; whether there is the need for investigation, and whether the relevant provisions of the law and indeed, all circumstances, as provided in the Administration of Criminal Justice Act (ACJA) are put into consideration in our conduct as regard the fight against corruption.”

The Presidency had also commented on this burning issue, saying Buhari reserves his highest respect for the institution of the judiciary as the third arm of government. In a statement by the Senior Special Assistant to the President on Media and Publicity, Mr Garba Shehu, the presidency said Buhari would not do anything to undermine its independence.

Shehu said: “Buhari remains a committed democrat, in words and in his actions, and will not take any action in violation of the constitution. The recent surgical operation against some judicial officers is specifically targeted at corruption and not at the judiciary as an institution.

“In a robust democracy such as ours, there is bound to be a plurality of opinions on any given issue, but there is a convergence of views that the country has a corruption problem that needs to be corrected. But reports by a section of the media are giving us cause for concern.
“In undertaking the task of reporting, the media should be careful about the fault lines they open. It is wrong to present this incident as a confrontation between the executive and judiciary.”

Unsurprisingly, the Minister for Information and Culture, Mr Lai Mohammed, said that DSS operatives did not violate any law when they raided houses of judges penultimate Friday. Mohammed said receipt of complaints against erring judges and their discipline were not exclusive to the NJC.

The information minister said: “I want to state clearly that this government believes very much in separation of powers. This government has a lot of respect for the judiciary and for obvious reasons, not just because the constitution says so but I think probably this is one cabinet that has the highest number of lawyers as ministers.”

Asked to react to insinuations that the executive had usurped the powers of the NJC by ordering DSS to arrest the judges, Mohammed said such claims were not correct. He said, “Again they have tried to muddle issues by trying to say that the NJC is the only authority that can attend to complaint and discipline against judges. The answer once again is ‘no’. There is a difference. When a judge is accused of professional misconduct is quite different from what is happening now. If you suspect anybody, including governors who have immunity, they are still subject to investigations.”

He said, “What the government is concerned and passionate about is to fight corruption. In the process of fighting corruption it’s not unusual that you step on some very sensitive toes but the question to ask and I think this has been adequately answered by the Attorney General is, one, do judges have immunity? The answer is ‘no’. Can judges be arrested? The answer is ‘yes’. Have judges that are serving been arrested in Nigeria? The answer is ‘yes’. Justice Okoli had been arrested and tried.

“Now, the next question to ask is, what is the proper procedure for arresting anybody, including judges? There must be properly executed search warrant. Was such presented? The answer again is ‘yes’.

“People have tried to muddle the facts about when do you search the person’s house, the truth of the matter is that under the new criminal justice law, you can search anybody, anywhere, anytime.”
Mohammed went ahead to cite instances where judicial officers had been arrested for corrupt practices.

“You were all witnesses in 2015 in Ghana here, 32 judges were caught on tape by journalists asking for bribe. Twenty two of them were dismissed in one day in Ghana,” he stated. “Yes, it’s true that what is happening today has probably never happened at this level before. But frankly speaking, and with all due respect, we do not intend to humiliate any judge; we have no intention to humiliate the judiciary but what we have done we have done within the ambit of the law.”

Suspicion
A Warri-based lawyer, Emmanuel Jakpal, however, picked holes in the argument of the DSS, saying what the operatives did is not a sting operation. According to him, a sting operation is a form of entrapment. “You lure your suspect to compromise himself with irrefutable evidence,” he added, citing what happened in Ghana where Anas Aremayaw, an award winning investigative journalist, ‘stinged’ more than 34 judges of the Ghanaian High Court when he went with offers of money to purchase judgements. Aremayaw argued that the judiciary was a sensitive organ and it was intended to be so.

He said: “This is why the symbol of the judiciary is a hand holding a pair of scales. Any slight pressure registers on the scales. When a Justice Dimgba tells SSS on Friday you should not come to his court again unless you produce a suspect or obey an order of his court and you, the same SSS, knock on his door on Saturday morning at 1am and harass his family unlawfully without a warrant, even after his protests, you are loading the sales on one side. You are telling him and others like him that you are able to deal with unpleasant judges, if not in the day, then at night. if not on real allegations then on fictitious ones. And that is a dangerous sign.”
Then he asked, “Are you telling me that the SSS had placed judges under surveillance but did not even know their addresses?”

He said it was worrisome for the presidency to rely on the SSS (not the Attorney General of the Federation) for assurances that due process was followed in attacking the Supreme Court.
“The so-called sting was no sting; it was a mere slap in the face meant to disorientate the judiciary. That is what intelligence officers are trained to do – disorientate the victim in the hope that something useful will fall from him. It was a fishing expedition,” he added.