THE DSS ARREST AND PROPOSED PROSECUTION OF THE JUDICIAL OFFICERS FOR CRIMINAL OFFENCES: IS NJC THE APPROPRIATE ROAD TO GOLGOTHA?
—Bolaji Ramos, Esq.
It is no longer news that the 7th October 2016 arrest of two of the Justices of the Supreme Court of Nigeria and five State and Federal High Court Judges by the Department of State Services (DSS) has thrown a lot of dust in the air and generated heated debates between legal practitioners, human rights activists, NGOs, socio-political commentators and other stakeholders.
From the overall reactions of the commentators, a lot of moral, political and legal issues have evolved. There has been the issue as to whether the DSS, in the first place, has powers under its enabling law to carry out such arrests. Closely related to this is the issue of whether serving judicial officers can be arrested and prosecuted by a crime control agency without the recommendation of or going through the National Judicial Council (NJC) to whom, as argued by the NBA and SERAP respectively, power to discipline judicial officers is exclusively vested under the 1999 Constitution (as amended). Other issues include the legality of the Gestapo manner and the time in which the arrests were made; existence or otherwise of arrest warrants, among others.
In the instant write-up, I wish to particularly address two core legal issues which are (a.) whether the DSS, in the first place, has powers under its enabling law to carry out such arrest; and (b.) whether under the 1999 Constitution, judicial officers cannot be tried by a court of first instance unless and until petitions have been written against such judicial officers and same have been forwarded to the NJC, and the NJC has appropriately exercise disciplinary jurisdiction over the issue with its verdict given concerning the judicial officers.
Like many commentators, the NBA President (Mr. Abubakar Mahmoud (SAN) ) in his official briefing of journalists on Saturday 8th October, 2016 at the Eko Hotel, Victoria Island, Lagos and during the Supreme Court valedictory service for Justice Suleiman Galadima, JSC on 10th October, 2016 stated categorically that it was not the responsibility of the DSS to arrest judges and that the law provides procedure for handling judicial officers. By a letter dated 9th October, 2016 addressed to the President Muhammad Buhari, SERAP also held the view that the DSS acted outside the scope of its powers which was said to threaten the independence of the judiciary.
I must quickly point out that by reference to the law enabling DSS, these commentators will appear to mean the law enabling the State Security Service (SSS), and not the DSS so to say. While the DSS is being run by the SSS, the DSS is presently not a creation of any known statute in Nigeria. It is merely a department under the Presidency. On the contrary, the SSS is the recognized statutory body established under section 2(3) of the National Security Agencies Act LFN 2004 (NSAA), and empowered under the Act to exercise certain powers. Moving forward, therefore, reference to SSS in this write-up should be deemed as reference to DSS.
Power of DSS To Arrest The Judicial Officers on Corruption Allegation
The prevailing view on the arrest of the judicial officers on the allegation of corruption (among others) is that the SSS does not, by virtue of its enabling law, have the power to arrest any person for corruption, not to talk of the judicial officers. The commentators who held this view argued that the SSS’s power of arrest is limited to crime against the internal security of Nigeria which must be non-military classified. This is the view also vigorously expressed and reiterated by Mr. Abubakar Mahmud (SAN) on behalf of the NBA. The disciples of this view have based their reasoning on the provision of section 2(3) of the NSAA which empowers the SSS to detect and prevent any crime against the internal security of Nigeria, which is non-military classified . Yes, this is settled.
However, one disservice that the disciples of this view are doing to themselves and the unsuspecting Nigerians who have not taken time to thoroughly look at the NSAA is that they have either failed or refused to do a holistic, wholesale reading of all the sections of the NSAA with a view to discovering the extent of powers the SSS may exercise under the NSAA. Singular reliance on section 2(3) will only amount to an erroneous or misconceived result. The relevant provision of the NSAA through which the SSS acted and effected the arrest does not appear to me to be section 2(3).
There is an unnoticed section 6 of the NSAA that these commentators are overlooking. Section 6 is very instructive in determining the scope of powers of the SSS. Under this section, the President of Federal Republic of Nigeria is empowered to, by instrument under his hand, do the following: (a.) make provisions on how (inter alia) the SSS may be structured; (b.) the manner in which the powers of the SSS may be exercised and conferment of powers of superior police officers on specified officers of the SSS; and (c.) anything concerning or incidental to any matters mentioned in NSAA. The provisions of section 6 give the President a wide range of powers that transcends the provisions of section 2(3) of the NSAA. The following can be deduced from section 6:
- The President has power to structure how the SSS will be run. This unarguably brings about the use of the founding of the DSS;
- The President has power to determine how the SSS will exercise its powers;
- The President has powers to confer on SSS or DSS officers all powers that superior police officers can exercise.
- The President has powers to do anything incidental to (inter alia) points (1) to (3) mentioned above.
Particular attention should be given to points (3) and (4) mentioned above. One curious question that comes to mind is: what are the powers of superior police officers? The answer to this poser is not far-fetched. Section 2 of the Police Act LFN 2004 defines superior police officers as officers that are above the rank of a cadet assistant superintendent of police (ASP). These include the Inspector General of Police (IGP), the Deputy IGPs, the Assistant IGPs Superior police officers, Commissioners of Police and others above the rank of cadet ASP. Superior police officers (just like other police officers) have the mandate to prevent and detect any crime under section 4 of the Act, and this surely includes allegation of corrupt practices such as bribery and corruption. In the same vein, any person reasonably suspected to have committed a crime or about to commit a crime can be arrested (even without a warrant) by a superior police officer under sections 24 and 29 of the Act. With all these in view and by the strength of section 6 of NSAA, SSS officers (in addition to its powers under section 2(3) of the NSAA) who have been empowered by the President can indeed look into allegation or cases of corruption or any other crimes the same way superior police officers can.
It is also instructive to know that a thorough look at the relevant provisions of the Economic and Financial Crimes Commission Act LFN 2004 and Corrupt Practices and Related Offences Act LFN 2004 shows that there is no preclusion of other law enforcement agencies or bodies such as the Police and SSS from detection and prevention of economic and financial crimes or crimes emanating from corrupt practices such as the ones the judicial officers are alleged to have committed. To cap it all, it is a misconception to hold that the powers of SSS are limited to prevention of crimes against internal security of Nigeria or that the SSS cannot arrest the judicial officers for crimes emanating from corrupt practices, provided it has been empowered by the President through an instrument under his hand.
The Appropriate Adjudicatory Forum For Judicial Officers Accused of Committing Crimes
The NBA, through its President, joined the other commentators that hold the view that by virtue of Paragraph 21 of the Third Schedule to the 1999 Constitution (as amended) the appropriate forum to deal with any misconduct of judicial officers is the NJC. The proponents argued that it is after the NJC has one way or the other determined the petitions that must been written against these judicial officers that they can be prosecuted before the regular court. With utmost respect, there is no legal basis for this argument in our present law as it. It is misconceived.
About five sections of the Constitutions are pertinent to the resolution of this issue— sections154, 158 and 292 as they relate to the NJC and sections 6 and 272 as they relate to the regular court.
As they relate to the NJC –
Section 154 established the NJC and refers to the Third Schedule to the Constitution for its power and composition. Paragraph 21 of the Third Schedule provides that the NJC shall have power to exercise disciplinary control over judicial officers and recommend them to the President for removal. On its own part, section 158 confers independence on the NJC in respect of appointment and exercise of disciplinary control over judicial officers. Section 292(1)(b) gives instances that can lead to recommendation of judicial officers by the NJC to the President for removal and restricts such instances to: (a.) inability to discharge the functions of the office due to infirmity of mind or body and (b.) misconduct or contravention of the code of conduct.
As they relate to the regular court—
Section 6(6)(a) vests all judicial powers in courts which extend to application of inherent powers and sanctions of law on any person or authority while section 272 gives a State High Court jurisdiction to hear all criminal cases involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
Analysis of Appropriate Adjudicatory Forum—
One huge distinction that commentators who have argued that the NJC is the appropriate or first adjudicatory forum that the judicial officers should be subjected to fail to understand is the difference between professional misconduct or breach of ethical code of conduct by a judicial officer on the one hand and commission of crime(s) by a judicial officer on the other hand. A thorough community reading of Paragraph 21 of Third Schedule, section 158 and section 292(1)(b) of the Constitution clearly shows two things:
- The possible adjudicatory power of the NJC is limited to exercise of disciplinary control on judicial officers for breach of ethical or professional code of conduct; and
- There is no preclusion of law enforcement agencies from arresting and prosecuting of judicial officers before the High Court of a State or the Federal High Court as the case maybe where there have been allegations of crimes against such judicial officers.
While there are instances where a breach of a judicial code of conduct may be criminal in nature, there is still no supporting legal or constitutional basis for the argument that the NJC is the only and appropriate forum to deal with such instances. What is clear and undisputable is that section 272 gives the High Court the jurisdiction over all criminal matters involving any person, and by construction, “any person” include judicial officers. Section 308 of the Constitution is clear on the only persons in Nigeria that have immunity against prosecution—the President, the Vice President, the Governor and the Vice Governor. Judicial officers are not included, and they need not be removed from their offices before they can be prosecuted for criminal offences.
The SSS has power under its enabling law and other relevant laws to arrest the judicial officers for corrupt practices, provided the President has empowered it in that regard. Also, judicial officers can be appropriately (and without any recommendation of the NJC) prosecuted before a regular court— the High Court or the Federal High Court, as the case may be.