By J.B Daudu
On the night of the 7th of October 2016, between the hours of 10 pm and the wee hours of the next day, the Department of State Services (DSS), executing a carefully prepared script, invaded the homes of selected Justices of the Supreme Court of Nigeria in Abuja, Judges of the Federal High Court in Port Harcourt and Abuja and State High Court Judges in Gombe and Kaduna States. These judicial officers and their families had their sleep rudely interrupted, homes broken into, searches conducted and reputations tarnished. The Government agency that spearheaded this ordeal anchored these unorthodox actions, on the overriding and compelling necessity to eradicate corruption. It was put in the public domain, snippets of the crimes these judicial officers were said to have committed. By and large, since these strong arm tactics were employed, there have been a torrent of views on both sides of the aisle hotly debating the bona fides or otherwise of the actions of the DSS and its aftermath. In this discourse, it is intended not only to review the legality or otherwise of the steps referred to above, but also to find a lasting solution to the incidences of corruption in the Nigerian Judiciary. There are many other ancillary issues that must be touched upon, such as the role of the National Judicial Council (NJC) and other stakeholders such as the Bar Association (NBA) in the fight against judicial corruption and the impact of public opinion on the evolving issues.
Was The Invasion Lawful?
The DSS is one of the many law enforcement agencies that exercise police powers in Nigeria. Others include, but are not limited to, the Nigerian Security and Civil Defence Corps, Economic and Financial Crimes Commission, Independent Corrupt Practices and Other Offences Commission, Nigerian Customs Service, Immigration Service, etc. However, the Nigerian Constitution by section 214-(1) provides that’ There shall be a police force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section no other police force shall be established for the Federation or any part thereof. It is apparent that a sole Police Force is inadequate for the provision of public safety, health and accountability of a vast country like Nigeria. Rather than amend the Constitution to remedy this gaping lacuna created by the constitutional insistence on ‘one police force’, the powers that be i.e. the Federal Government has created the afore mentioned law enforcement agencies with independent powers to track-down, investigate and prosecute crimes and criminals, in short, they exercise the same multi-police powers that the Constitution has expressly prohibited any other organisation, Federal or State, from exercising.
Undoubtedly, this will be the core issue when the suspect judicial officers are charged to court i.e. the lawfulness or legality of the Agency that carried out the ‘operation’ and is still threatening to carry out more arrests. It is even more poignant, that it is the same Judiciary that is being hounded, that will be called to determine these issues. The DSS says that it has incriminating evidence, some acquired during the contested searches conducted in the Judges’ residences. The question is will these exhibits be admissible in evidence despite the constitutional lapses highlighted above. According to the learned editors of the esteemed resource compendium CORPUS JURIS SECUNDUM, 22A,SS657, ‘It has been held in some jurisdictions, that all evidence obtained by search or seizure in violation of the constitution is by that same authority inadmissible in a state law. That where officers of State violate defendant’s constitutional right by obtaining evidence by search or seizure or by compulsion or duress, the evidence is inadmissible.
It has been said that it is beneath the dignity of the state and against public policy for the State to use for its own profit, evidence that has been unlawfully obtained, although frequently the circumstances surrounding the commission of the crime is such as to make the securing of proper competent evidence very difficult. The court does not approve of resort to illegal means to obtain evidence and have said that evidence so obtained is inadmissible’. With regard to the Nigerian legal system, the general rule is that in criminal proceedings, any evidence which is relevant is admissible irrespective of how it is obtained. However, the age old rule of indifference to the manner by which evidence was obtained has given way to the provisions of Section 14 of the said Evidence Act which provides that where a piece of evidence is not rendered inadmissible by the mere reason of its being wrongfully or even illegally obtained, the court has the discretion to exclude any such evidence: if it is of the opinion that the undesirability of admitting it out weighs its desirability. In exercising this discretion provided for in section 14, the Evidence Act further provides for matters which the court should consider before admitting such piece of evidence in section 15 of the Evidence Act.
The Dignity And Efficacy Of The Judiciary And Legal System In The Aftermath Of This Crisis
The Judiciary is and has always been referred to as the 3rd arm of Government in the tripod consisting of the Executive, Legislature and the Judiciary. This is the hall mark of our preference or choice of democratic governance rooted in Federalism and Presidentialism. The 1999 Nigerian Constitution provides a unique framework for the management of a multi-ethnic and religious society such as Nigeria. It indeed takes its root from the 1979 Constitution which was suspended mid-stream due to military impatience with the then flawed emerging democratic culture. But as experience has shown, budding democracies must be allowed to correct itself through the will of the people and not from the forced barrel of a gun, or through the antics of pressure groups, whether styled as terrorists or militants or even social media pundits etc. Change, which is the only constant in life, can only come through the realisation by the People that its time has come and that the existing system is not serving the objective that it was meant to serve. Modern day Nigeria, is recognised by the Constitution to be a State ‘based on the principles of democracy and social Justice’. (See section 14-(1) of the 1999 Constitution) The same Constitution declares that ‘sovereignty belongs to the people of Nigeria from whom Government derives its power and authority; and that ‘the security and welfare of the people shall be the primary purpose of Government’. (See section 14-(2) of the 1999 CFRN) These fundamental objectives of Government which are documented in sections 13 to 24 of the Constitution though not justiciable remains the cardinal point for the State to pilot the affairs of the nation.
The Judiciary in the face of limitations provided by the non-justiciability of the constitutional provisions of the fundamental objectives and directive principles must discharge its functions provided by section 6- (6)- (b) of the 1999 CFRN which vests ‘Judicial powers in the designated courts to all matters between persons or between Government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person’. The essence of this provision is that the Judiciary is the designated body to determine the civil rights and obligations of Nigerians. It follows that all authorities inclusive of Government and all persons, artificial or real, are not above the courts and are indeed subordinated and obligated to obey and respect its determination. It is not for these Agencies and highly placed persons to make determinations as to who is corrupt or not, before they have been tried in a law court. To do so as many highly placed Government officials have done in the course of the crisis amounts to a naked usurpation of the judicial powers of the courts, and a breach of the constitutionally guaranteed presumption of innocence of the judicial suspects.
It must be conceded and addressed, the fact that, going forward, there is a severe crisis of confidence in the judicial arm of Government. Do the courts meet the expectation of the people in the discharge of its primary responsibilities? The answer is obviously in the negative. The consensus is that the corrupt elements in the court system and the Bar have given the entire sector an almost irredeemable bad name. One of the measures to be embarked upon in order to restore the image and efficacy of this arm of Government, is the expulsion of Judges who have been proven to be corrupt, from the system. This can be achieved by or vide two routes; (a) the criminal investigation and trial route and (b) the Administrative or complaint based system of discipline. These avenues intersect one another and it is important, that, where a judicial officer is to be tried in a court of criminal jurisdiction, for such an officer to be suspended from his office. In that vein, the dignity of the office of a judge is not compromised by the criminal trial in progress. As it relates to administrative conduit for the discipline of judicial officers. That is a course exclusively preserved for the National Judicial Council by virtue of section 153, 160 and 291 of the 1999 Constitution. The end result of any disciplinary action is either a reprimand, suspension from office, compulsory retirement, placement on the watch list or dismissal. No other organisation inclusive of the DSS, EFCC, ICPC or even the Police ought to or can influence the NJC whilst discharging the afore described civil disciplinary process for judicial officers. The efficacy of reform measures to be embarked upon to steer the justice sector from the abyss of corruption, ought to be the main objective now. This is in addition to the reform of the appointment procedure for judicial officers, so that only the best and indeed, honest lawyers are appointed to the Bench.
It has been suggested in some quarters that the crises currently bedevilling the judiciary has been orchestrated so as to obfuscate the problems of hunger, insecurity, unemployment and other ills afflicting the nation. This is most uncharitable as the crisis, combustible as it is, flared up, due to neglect of the fight against corruption within the Judiciary. Now that the fight is being championed from outside, a strong caveat must be entered, which is that (a) only constitutionally recognised statutory agencies should pilot the criminal aspects of suspected judicial corruption, (b) due process and rule of law must be complied with in the course of inviting or investigating a judicial officer, (c) stakeholders must be allowed to make inputs and contribute positively to the eradication of systemic corruption now engulfing the justice system. In conclusion, sad as the crises may be, it is clear that, it is stakeholders in the justice system that have brought this calamity on itself. Had the cankerworm of graft and corruption been exterminated from the system when decades ago it was boring into it, we would not be where we are today. All hands must now be on deck, to deal with the main objective, which is to restore the confidence of the Nigerian people in the Judiciary
J.B Daudu SAN, Past President Nigerian Bar Association