In most democratic societies of the world today, there are different machineries of government that have been put in place to help govern the society in order to ensure that chaos is averted within the state. These machineries of governance have been equally shared between the three arms of government, which are the executive, the legislature and the judiciary. In many ways these three arms of government have in place certain powers given to them by the Constitution of Nigeria, which is the ground norm, to checkmate the excesses of the other arms of government so that an abuse of power would not be occasioned in the exercise of their constitutional responsibilities.
It is in line with checkmating the excesses or perceived excesses of the judicial arm of government in Nigeria, that the executive arm through its agency, the Directorate of State Security (DSS) embarked on the arrest of certain perceived corrupt judicial officers upon the petitions brought against them. This 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 DSS, with some shouting indignation at the assault on the judiciary by the executive, while some have voiced support for the action of the DSS.
This now brings us to highlighting certain legal issues that the action of the DSS has brought to the fore; which includes – Are judicial officers in Nigeria immune from criminal prosecution? Secondly, is it mandatory for security agencies to seek the approval/intervention of the National Judicial Council (NJC) before it can investigate, arrest and detain or prosecute a judicial officer over alleged crimes? Thirdly, did the DSS act within its statutory powers and acceptable legal procedures? And lastly, is evidence obtained illegally, admissible in law?
To answer the first question, the only place immunity is mentioned for public office holders in our Constitution relates to immunity from civil and criminal proceedings and processes under Section 308 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). It provides clearly that, only the President, the Vice President, Governors and Deputy Governors are shielded from civil and criminal proceedings and processes while in office.
It is a basic 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.
What this then implies is that every person, apart from those four public officers expressly and clearly mentioned in Section 308 of the Constitution, can be subjected to being investigated, arrested, detained and prosecuted. This invariably means that judicial officers from the Chief Justice of Nigeria (CJN) to High Court Judges do not enjoy any form of immunity from criminal proceedings and processes; as immunity cannot be inferred, it must be specifically granted.
The next question for discourse is whether it is mandatory for security agencies to seek the approval/intervention of the National Judicial Council (NJC) before it can investigate, arrest and detain or prosecute a judicial officer over alleged crimes? The simple and straightforward answer to this is that The NJC is one of the institutions established by Section 153 of the Constitution. The NJC is not a court of law under Section 6 of the Constitution and has no supervisory jurisdiction over law enforcement agencies. It therefore follows that security agencies including the DSS are not bound to seek approval from the NJC before investigating or arresting judicial officers.
Thirdly, did the DSS act within its statutory powers and acceptable legal procedures? In a piece termed ‘‘Crackdown on Judicial Officers – Separating the Law from Sentiments’’, by Inibehe Effiong in the Premium Times newspaper of October 10, 2016; the author opines that:
“The DSS is a creation of the National Security Agencies Act of 1986. The powers of the DSS as stipulated in Section 3 of the Act are 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.”
He further opined that if we consider the provisions of paragraphs (a) and (b) above, it is clear that the DSS in the strict sense is not empowered to arrest judicial officers for alleged economic and financial crimes. However, paying a dispassionate attention to the wordings and purport of paragraph (c) above; we see clearly, that provision (paragraph C) gives the National Assembly or in this case, the President, the power to enlarge the scope of responsibilities of the DSS 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 DSS should exercise its powers.
It was in line with exercising the power in Sections 3 and 6 of the National Security Agencies Act 1986, that the 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 here that the National Security Agencies Act has a special constitutional essence, as it is one of the four federal enactments listed under Section 315 (5) of the Constitution. What that implies 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.
Furthermore, the DSS claimed that the affected judicial officers were arrested on the basis of allegations of corrupt practices and professional misconduct. The DSS, in a statement, said that raw cash of different denominations, in both local and foreign currencies, assets worth millions of Naira and incriminating documents affirming “unholy acts of these Judges” have been uncovered through its sting operation.
One then asks, whether the grave allegations levelled against the judicial officers and the alleged offences committed by them constitute “economic crimes of national security dimension” to allow such to be brought under the purview of the additional powers of the SSS pursuant to Instrument One of 1999?
Let us at this point examine the role of judicial officers in the task of nation building. A corrupt judge is not only a threat to justice and the rule of law but to the society and the nation at large. In the words of Hon. Justice Muhammadu Lawal Uwais – ‘‘a corrupt judge is more harmful to the society than a man who runs amok with a dagger in a crowded street. The latter can be restrained physically but a corrupt judge deliberately destroys the moral foundation of the society and causes incalculable distress to individuals through abusing his office while still being referred to as honourable’’. 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. The worst form of corruption can be argued to be judicial corruption.
Section 2 of the Administration of Criminal Justice Act (ACJA) 2015 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 now the ACJA and not the various laws of the States where the “raids” were conducted that governs the procedure adopted by the DSS as against those arguing that the ACJA should not apply outside the FCT.
Though the Economic and Financial Crimes Commission (EFCC) is the specialized and coordinating agency for the detection, prevention and prosecution of economic and financial crimes, economic crimes committed by a judicial officer can be argued to be far more serious and damaging than those of other categories of persons and there is some wisdom in categorizing same as “economic crimes of national security dimension” for which the DSS can act upon.
Furthermore, on the manner the searches and arrests were carried out, it can be argued also that the DSS acted in a rather rash and inappropriate manner. However, putting aside all form of sentiments, it is gathered that the DSS obtained both search and arrest warrants for this operation. What is in dispute however 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 now the ACJA 2015. Part 18 of the ACJA is devoted to search warrants and Section 144 thereof allows for the issuance of a search warrant on any house. The warrant may also authorise 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.
Part 18 of the ACJA and under Section 148, states unequivocally that: “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 the 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 can be presumed to have been issued. In addition to the above, as regards the execution of the warrant (s) at night; the ACJA provides that warrants issued can be executed at anytime or any day including Sundays or public holidays.
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 access 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 access is denied upon demand. If the DSS 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. 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 us.
Lastly is the evidence that was obtained illegally admissible in law? That is to say, where evidence is obtained in a way that contravenes the laid down procedure for the conduct of search of houses and places, will such evidence be admitted by the courts?
The answer is in the positive; as illegally obtained evidence is admissible under Nigerian law. The Supreme Court affirmed this position in the case of Musa Sadau & Anor v. The State (1968) NMLR 208. The case of Kuruma v. R. (1955)1 All ER 236 at 239-240, is also instructive in this regard; where 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 a general rule of evidence that what determines admissibility in law is relevance and not how the evidence was procured. Section 1 of the Evidence Act 2011 and the cases of Torti v. Ukpabi (1984) 1 SCNLR 214 at 236-237, 239-24O and Lasun v. Awoyemi (2009) 16 NWLR (Pt.1168) 513 at 553 are instructive on this. The import of this is that the evidence allegedly obtained from the houses of the judges after the raid are admissible in law whether search warrants were obtained or not or properly executed or not. The courts are bound to admit such evidence even if the whole world is shouting and pointing out illegalities that may abound.
The fact is that no one should be above the law, especially corrupt judges; if the same action had been meted out to ordinary citizens, no one would be shouting about it. We do sympathize with the legal profession that is being brought to disrepute by the actions of some corrupt elements within it, however, there is an urgent need to purge and sanitize the judiciary of corruption and other ills bedeviling it. However, there is a general belief amongst Nigerians that the corruption fight of the Buhari government is selective, with many cabinet members of the government having been alleged to be corrupt and no one is rushing to investigate them. Justice must be done and seen to be done to all irrespective of political party affiliations.