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| Inibehe Effiong |
The State Security Service (SSS) embarked on an unprecedented
"crackdown" on allegedly corrupt judicial officers across the country
over the weekend. Among the judicial officers whose houses were searched and
thereafter arrested and detained are two Justices of the Supreme Court of
Nigeria; Justices Sylvester Ngwuta and Inyang Okoro.
As expected, the action has polarised lawyers, commentators, the
media, civil society and the public. Differing views have been expressed on the
constitutionality or otherwise of the steps and procedures adopted by the SSS.
Sadly, the public has been deprived of opinions that are rooted in law owing
largely to the belligerent and sentimental posturing and aggressive
grandstanding that has impaired commentaries on the issues in controversy.
My task in this essay is simply to offer a legal opinion on the
following four issues: First, are judicial officers in Nigeria immune from the
criminal justice system?; Second, is it mandatory for security agencies to seek
the consent/intervention of the National Judicial Council (NJC) before
investigating, arresting, detaining or prosecuting a judicial officer over
alleged crimes?; Three, did the SSS act within its statutory powers and
acceptable legal procedures? Four, is evidence that is obtained illegally
admissible in law?
The above questions or issues are in my considered view the
crux-es of the matter.
Before I proceed further, may I respectfully issue a caution:
This op-ed is one of the longest that I have written in recent times. It is not
for the lazy mind or for those who are easily irriated by long essays and
exposition. The nature of the issues under consideration necessarily made it a
detailed essay. I solicit the indulgence of readers.
Resolution of the issues:
First, are judicial officers in Nigeria immune from the criminal
justice system?
The only constitutional provision relating to immunity from
civil and criminal proceedings and prosseses for certain public office holders
in Nigeria is Section 308 of the Constitution of the Federal Republic of
Nigeria 1999 (as amended) (hereinafter referred to as the Constitution). Based
on that provision, only the President, the Vice President, Governors and Deputy
Governors are shielded from civil and criminal proceedings and prosseses in
limited circumstances.
It is an elementary rule of interpretation that the express
mention of one person or thing is the exclusion of another. The maxim is
expressio unius personae vel, est exclusio alterius. In the case of Ehuwa v.
O.S.I.E.C. (2006) 10 NWLR (Pt.1012) 544, the Supreme Court stated the position
thus:
"It is now firmly established that in the construction of a
Statutory provision, where a statute mentions specific things or persons, the
intention is that those not mentioned are not intended to be included..."
Per OGBUAGU, JSC.
The implication is that every person apart from the four public
officers expressly mentioned in Section 308 of the Constitution are subject to
investigation, arrest, detention and prosecution. Judicial Officers from the
Chief Justice of Nigeria (CJN) to High Court Judges do not enjoy any special
protection from criminal proceedings and prosseses. Immunity cannot be
inferred, it must be specifically granted.
Those suggesting that judicial officers in Nigeria are entitled
to special protection or immunity should be kind enough to cite the enabling
constitutional or statutory provision that supports their position. The truth
is that there is none.
Second, is it mandatory for security agencies to seek the consent/intervention
of the NJC before investigating, arresting, detaining or prosecuting a judicial
officer over alleged crimes?
The NJC is one of the institutions established by Section 153 of
the Constitution. The power of the Council is provided for in Paragraph 21 of
the Third Schedule to the Constitution. The NJC is empowered inter alia, to
recommend the removal from office of judicial officers and exercise
disciplinary control over them. By virtue of Section 158 (1) of the
Constitution, the NJC is guaranteed constitutional independence and is not
subject to the control of any other authority or person when exercising its
disciplinary control.
There is no dispute on the disciplinary control of the NJC over
judicial officers. What is disputed by some legal commentators is the extent of
the disciplinary control. Is it correct to aver that no criminal proceedings or
action can be initiated or taken against a judicial officer except on the
invitation/directive of the NJC?
At the risk of repetition, where a judicial officer is alleged
to have committed a crime, is it mandatory for law enforcement agencies to go
through the disciplinary instrumentality of the NJC before taking actions
against the erring judicial officer?
There is nothing in the provisions of Paragraph 21 of the Third
Schedule to the Constitution that precludes law enforcement agencies from
investigating, arresting, detaining or prosecuting a judicial officer in
Nigeria for alleged corrupt practices or for other sundry offences. It is my
view that a contrary interpretation will have the inescapable effect of
conferring an extra-constitutional immunity on judicial officers.
In rule seven (7) of the famous twelve (12) point rule of
constitutional interpretation propounded by OBASEKI, JSC in the celebrated case
of Attorney-General of Bendel State vs Attorney-General of the Federation
(1981) 10 SC. 1; (1981) 1 FNLR 179, the Supreme Court declared thus:
"A constitutional provision should not be construed in such
a way as to defeat its evident purpose."
The purpose of Section 308 of the Constitution as evidently
enshrined therein is to protect ONLY the President, Vice President, Governors
and Deputy Governors from arrest, detention and prosecution. I submit that any
construction on the disciplinary power of the NJC that tends to shield judicial
officers from arrest, detention and prosecution will automatically defeat the
purpose of Section 308 of the Constitution.
It is my humble view that where the wrongful act of a judicial
officer is merely a misconduct and nothing more, the NJC is vested with the
power to recommend such offending judicial officer for removal from office and
exercise disciplinary control over him. The NJC's independence from control
guaranteed and envisaged by Section 158 of the Constitution does not, and
cannot be construed to mean totality or absoluteness of control over judicial
officers where the misconduct complained of also constitute a crime.
Before concluding on this point, there is a widely propagated
misconception that needs to be corrected.
It has been argued by some persons that the procedure on how
erring judges should be dealt with requires that even when a judge is found or
alleged to have committed a crime, a petition must first be written to the NJC
and that the petitioner and the law enforcement agencies like the police, the
EFCC, the SSS and others must patiently wait for the determination of the
petition by the NJC before activating the criminal process. With respect, that
cannot be the correct position.
Ostensibly, this misconception stems from a misunderstanding 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. In brevity, the 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. Note that the NJC
only recommends, it does not and cannot remove any judicial officer solely on
its own.
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.
No law enforcement agency can usurp the disciplinary powers of
the NJC by recommending a judge for removal or suspending a judge or exercising
other form of disciplinary control over a judicial officer. Likewise the NJC
cannot and should not usurp the constitutional cum statutory functions of the
law enforcement agencies to investigate crimes, arrest, detain or prosecute any
person, including judicial officers, for alleged crimes. Both causes of action
can either run concurrently or separately depending on the circumstances of
each case.
Where for example a judicial officer is accused of corruption which
is both an act of professional misconduct and a crime, the aggrieved party and
or law enforcement agency may elect to petition the NJC for the removal of the
judicial officer from office or proceed directly to subject the erring judicial
officer to the criminal justice system or pursue both causes of action at the
same time.
The NJC is not a court of law under Section 6 of the Constitution
and has no supervisory jurisdiction over law enforcement agencies.
Third, did the SSS act within its statutory power and acceptable
procedure?
The SSS is a creation of the National Security Agencies Act of
1986. The power o
f the SSS as stipulated in Section 3 of the Act is as follows:
(3) 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.
Going by the provisions of paragraphs (a) and (b) supra, it is
apparent that the SSS stricto sensu ( in the strict sense) has no power to
arrest judicial officers for alleged economic and financial crimes. However, a
dispassionate attention should be paid to the wordings and purport of paragraph
(c) above. Clearly, that provision (paragraph C) gives the President the power
to enlarge the scope of responsibilities of the SSS relating to the internal
security within Nigeria. Section 6 of the Act goes further to empower the President
to issue an Instrument, a subsidiary legislation, on the manner the SSS should
exercise its powers, etc.
In exercise of the power in Sections 3 and 6 of the National
Security Agencies Act 1986, former Head of State, General Abdusalam Abubakar in
1999 promulgated the State Security Service Instrument One of 1999. By virtue
of that Instrument, the responsibilities of the SSS was extended to include the
prevention, detection and investigation of economic crimes of national security
dimension, among other things. It is important to emphasize that the National
Security Agencies Act has a special constitutional flavour being one of the
four federal enactments listed in Section 315 (5) of the Constitution. The
consequence is that it cannot be altered like ordinary Acts of the National
Assembly. It has the same alteration procedure like the Constitution as laid
down in Section 9 (2) of the Constitution.
According to the SSS, the affected judicial officers were
arrested based on allegations of corrupt practices and professional misconduct.
The SSS in a statement said that raw cash of different denominations, in both
local and foreign currencies, assets worth millions of Naira and documents
affirming "unholy acts of these Judges" have been uncovered through a
sting operation. The summary of cash allegedly recovered during the
"raids" conducted in the homes of the Judges was given as follows:
Naira - N93,558,000.00; Dollars - $530,087; Pounds - £25,970 and Euro - €5,680.
The question is, does the grave allegations levelled 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?
It is advisable for us to examine the role of judicial officers
in nation building. A corrupt judge is not only a threat to justice and the
rule of law but to the society and the nation. Judges are by their calling
empowered to make binding decisions on behalf of the rest of the society. When
judgments are obtained fraudulently, the society and the nation are endangered.
A corrupt judge is more dangerous than a kidnapper or an armed robber. The
worst form of corruption is judicial corruption.
Though the Economic and Financial Crimes Commission (EFCC) is
the specialised and coordinating agency for the detection, prevention and
prosecution of economic and financial crimes, economic crimes committed by a
judicial officer is far more serious and damaging than those of other categories
of persons and there is some wisdom is categorizing same as "economic
crimes of national security dimension" for which the SSS can act upon.
On the manner the searches and arrests were conducted, I concede
that the SSS acted in a rather brash and indecorous manner. However, facts are
sacred and the law should be separated from sentiments. It is reported that the
SSS obtained both search and arrest warrants. What is in dispute is whether the
warrants covered all the affected judicial officers and the somewhat
"undemocratic" manner they were executed, particularly the time.
The relevant principal law on the issuance of a search/arrest
warrant is the Administration of Criminal Justice Act 2015 (ACJA). Part 18 of
the ACJA is devoted to search warrants, Section 144 thereof allows for the
issuance of a search warrant on any house. The warrant may also authorize the
officer or other person to arrest the occupier of the house or place where any
incriminating item or thing is found during the search. Where this is specified
in the search warrant, there would be no need to obtain an arrest warrant
separately. By Section 146 of the ACJA, a search warrant shall be under the
hand of a Judge, Magistrate or Justice of the Peace issuing it and shall remain
in force until it is executed or cancelled by the court which issued it.
One important provision under Part 18 of the ACJA that those
criticizing the SSS should note is Section 148. It states unequivocally thus:
"A search warrant may be issued and executed at any time on
any day, including a Sunday or Public Holiday."
However, 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. It is doubtful whether the SSS complied with this requirement
before embarking on the search at the houses of some of the judges located
outside the Federal Capital Territory, Abuja where the search warrant must have
been issued.
It has been argued by some lawyers, including some Senior
Advocates of Nigeria (SANs) that the ACJA does not apply throughout the
federation and that the SSS was bound to follow the provisions of the enabling
procedural laws in the States where they executed the search, especially as it
pertains to the time of execution of the search warrants. This argument with
respect is misleading.
Under Section 111 of the repealed Criminal Procedure Act Cap.
C41 LFN 2004, the time for executing a search warrant in the South was between
the hours of five o'clock in the forenoon and eight o'clock at night of any day
of the week, including Sundays but the Magistrate had the power to direct
otherwise. The repealed Criminal Procedure (Northern States) Act Cap. C42 LFN
2004, was however silent on the time. Both Acts have now been repealed by
Section 493 of the ACJA 2015 and are no longer laws in Nigeria. Section 2 of
the ACJA makes the ACJA applicable to criminal trials for offences created by
an Act of the National Assembly, like economic and financial crimes, and to
other offences punishable in the FCT, it is the ACJA and not the various laws
of the States where the "raids" were conducted that governs the
procedure adopted by the SSS. Accordingly, it is misleading for anyone to
suggest that the SSS was wrong to have executed the search warrant(s) at night.
It is reported that the SSS forcibly broke into the house of one
of the judges. Section 149 (1) of the ACJA states thus:
"Where any building liable to be 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 acess to it and afford all reasonable facilities for its
search."
By the combined effect of Sections 9, 10, 12, 13 and 149 (2) of
the ACJA the person executing a search warrant and or arrest warrant is
empowered to "break open any outer or inner door or window of any house or
place" where unhindered acess is denied upon demand. If the SSS had
requested for unhindered access into the house of the affected judge and they
were denied, the breaking of the door of the judge's house was lawful as
expressly stated in the ACJA.
Four, is illegally obtained evidence admissible in law? In other
words, where evidence is recovered in contravention of the procedure for search
of houses and places, will the court admit same?
Every lawyer in this country that is worth his salt knows the
answer to this question. The answer is YES - illegally obtained evidence is
admissible. The Supreme Court held so in unmistakable terms right from 1968 in
the case of Musa Sadau & Anor v. The State (1968) NMLR 208. Also in Kuruma
V. R. (1955)1 All ER 236 at 239-240, the Privy Council stated, inter alia,
thus:
"The test to be applied in considering whether evidence is
admissible is whether it is relevant to the matters in issue. If it is
admissible.....the court is not concerned with how the evidence was obtained".
It is an elementary rule of evidence that what determines
admissibility is relevance and not how the evidence was procured. See Section 1
of the Evidence Act 2011 and the cases of Torti v. Ukpabi (1984) 1 SCNLR 214 AT
236 - 237 and 239 24O and Lasun v. Awoyemi (2009) 16 NWLR (Pt.1168) 513 at 553.
Accordingly the evidence allegedly recovered from the houses of
the judges are admissible in law whether search warrants were obtained or not
or properly executed or not. The court will still go ahead to admit the
evidence irrespective of protestations against its illegality. This may not
sound comforting, but that is the law.
By way of concluding remarks, I will like to make some points
clear. The Judiciary is a sacred institution that should not be desecrated by
any person. However, there is no sacredness in corruption. Judges must at all
times be treated with decency and respect befitting of their office but corrupt
judges should be identified and treated like other criminals in the society.
Nigeria is blessed with some of the best judicial brains that can be found
anywhere in the world, but the nefarious activities of the bad eggs on the
Bench should never be tolerated under any guise.
Judges are not above the law.
Like other public servants, judges in Nigeria are paid in Naira,
not in Dollars, Pounds, Euro or Cedis. Judges are not Bureau De Change
operators and are not permitted to engage in business adventures. Therefore,
the Nigerain people with whose taxes and resources the Judiciary is funded
deserves to know how their Lordships came about the mind-blowing hard
currencies found in their homes? The public deserves to know how their
Lordships came about the assets allegedly traced to them. Judges who are living
above their means should be able to answer some questions from the law
enforcement agencies.
Their Lordships are presumed innocent until proved guilty and
they should be given fair trial and fair hearing.
Instead of threatening the President, the Nigerian Bar
Association (NBA) should tell us what they have done about the recent brutal
murder of their member in Rivers State, Mr. Ken Atsuwete?
Where was the NBA when a High Court Judge was assaulted in open court in Ekiti
State by political thugs led by a governor? Why did the NBA not declare a state
of emergency on the judiciary when Justice Ayo Isa Salami was humiliated and
disgraced out of the Bench by the administration of Goodluck Jonathan despite
the NJC's
recommendation that he should be reinstated? What has the NBA done to
Mr. Ricky Tarfa, SAN for allegedly bribing judges? Whose interest is the NBA
fighting for?
Records have shown that judges in other jurisdictions, including
the United States have been arrested, prosecuted and jailed for corruption and
other criminal conducts. Ghana recently purged its judiciary. If this is the
time to uproot the pervasive cancer of corruption in the Nigerian Judiciary it
is a welcome development and should be supported. Without checks and balances,
the doctrine of separation of powers is useless and unworkable.
We cannot have different standards for the rule of law; one for
the influential and another for the poor or one for the judges and another for
the rest rest us.
Thank you.
Inibehe Effiong is a Legal Practitioner and Convener of the
Coalition of Human Rights Defenders (COHRD)
Contact: inibehe.effiong@gmail.com
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