“Crackdown” On Judicial Officers – Separating The Law From Sentiments By Inibehe Effiong

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 irritated 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 processes 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 processes 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
processes. 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 of 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, in 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 has granted 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 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 of 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 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 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
the 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 Nigerian 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 a fair trial and impartial 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 of us.

Thank you.

Inibehe Effiong is a Legal Practitioner and Convener of the Coalition of Human Rights Defenders (COHRD) and can be reached at:inibehe.effiong@gmail.com