Is DSS right to invade judges’ homes?

Prof. Fidelis Oditah (A Senior Advocate of Nigeria/Queen’s Counsel) and Chief Gani Adetola-Kazeem (A Senior Advocate of Nigeria).

The invasion is unconstitutional. The assault on the premises of the judges is unconstitutional. By the action, the Department of State Services is usurping the functions of the National Judicial Council which is constitutionally allowed to discipline erring judges. Dramatising the issue under the canopy of fighting corruption is not fair. Nobody is saying that judges should not be arraigned before a court; nobody is saying judges shouldn’t be arrested. But for goodness sake, why at night? Why under the cover of darkness? I am assuming that they have a search warrant. But even if they have a search warrant, you don’t execute a search warrant in the middle of the night. We are guided by the rule of law and not by the whims and caprices of officers who are purporting to be executing court proceedings.

Prof. Fidelis Oditta, (QC/SAN) left, and Mr. Gani Adetola Kazeem, SAN.

You execute a search warrant between the hours of 6:00am and 6:00pm and not at midnight. Understand my position very well. I am in favour of fighting corruption because corruption has eaten deep into every fabric of our society. But we must fight corruption within the ambit of the law. Due process must be followed. If the Nigerian Bar Association doesn’t speak up on this issue, tomorrow is going to be your turn. The house of your editor will be ransacked at the middle of the night because they are looking for a document prepared or purported to have been prepared by reporters to attack government.

One of the judges castigated the DSS about two months ago, saying that they are a disgrace to democracy. This was what he was talking about. If you are acting within the law, it is okay. But when you turn the law upside down, it is not good at all.

The Department of State Services has the mandate to maintain internal security. There are many things that impact on national security, and I don’t think it is necessarily and narrowly focused on insurrection or civil disobedience and the like.

Anything that affects the institutions of the nation and which strikes at the heart of the institutions of the nation must be a matter which affects national security. On that analysis, I will say that they (DSS) have the power, provided they follow due process. And the due process that I mean is that if an offence was not committed in your presence and you want to see whether you will find any evidence of the commission of the offence, the most appropriate thing is to obtain a search warrant and then execute it in a responsible and respectful manner.

And, of course, it must be clear to everyone that judges are just like you and I; they enjoy no immunity or they enjoy limited immunity in relation to what they do as judges. For example, you cannot arrest a judge because he gave a judgment against you. But they enjoy no immunity for criminal offence. If a judge stabs someone, he will be arrested and prosecuted for malicious injury. If a judge steals your property, he will be arrested and prosecuted for theft. And that really is the essence of the rule of law — that we are all equal before the law.

If some of the allegations that have been going round are correct, one must be very alarmed and concerned as a citizen of Nigeria. If you hear that a judge has taken a bribe of up to $100,000 or you find $100,000 in the house of a judge, which is not a bank, wouldn’t you be alarmed as a Nigerian? I think we must put this thing in perspective. Judges, like all of us, need to be subjected to the rule of law, respect and due process. But subject to these conditions, judges are just like you and I, and they are Nigerians; they are not above the law. If a judge is reasonably suspected of having taken a bribe, why should he not be arrested because he is in the judicial arm? Members of the executive such as ministers, commissioners and special advisers have been arrested in the past. No one complained that they were attacking the institution of the executive. And we saw when they arrested Farouq Lawan. No one said it was an attack on the legislature. So, why is this one being viewed as an attack on the judiciary? Corruption is a serious matter and it must be tackled frontally but due process must be followed.

The Department of State Services should not arrest anybody, whether a judge or ordinary person, without evidence that such a person has committed an offence. I am saying this not because those involved are judges, but because they are Nigerians. The DSS needs to do the right thing when arresting anybody suspected to have committed an offence. If the government is not happy about the outcome of a legal case, the right thing to do is to appeal. That is the position of the law.

Concerning the report on the blocking of the court premises, there is no reason to do so on a Saturday when the court does not sit.

The DSS operatives could only do what they did when there are security reports that a judge is harbouring criminals or documents relating to the security of the nation. Otherwise, it is not right for any organ of government to do so.

As one of the security and law enforcement agencies, the Department of State Services could arrest if they have the appropriate instrument authorising them to conduct a search and to effect arrest. Every law enforcement agency’s power needs to be predicated upon due process. If a law enforcement agency has the appropriate instrument, they can search any citizen’s house, not to talk of a judge; but they must have a search warrant and a warrant of arrest issued by a court of law. The fact that a judge is affected in this case is immaterial. However, the mode of the execution of the warrant in this case is what is in question. But the usual thing, under the law, is that when you are executing a search warrant or a warrant of arrest, it must be done within the reasonable hours of the day; not in the wee hours of the night. So, if they have the proper authority, the mode of execution is what is in question — particularly in these ways when there is general insecurity; (it is curious) for a law enforcement agency to behave in such a manner, because anybody can come, knock on your door and say he is a law enforcement agent, and he could turn out to be a kidnapper. So, we must be able to provide an environment that will enable us to differentiate between proper law enforcement agents and hoodlums.

If any of the law enforcement agencies has evidence or information that a crime is committed or is being committed somewhere, it has an inherent duty to investigate the crime. To that extent, the fact that it affects a judge is immaterial because nobody is above the law. The fact that one is a judge does not mean that he should not operate within the ambit of the law. If a judge is suspected to have committed a crime or is about committing a crime, law enforcement agents have a duty to investigate or, if possible, prevent the commission of the crime. In that respect, I won’t say that this is an attack on the judiciary.

Now that judges are involved, as I said, the mode of doing it is what is in question. Many people have expressed the opinion that the normal thing is that they should first of all send a report to the National Judicial Council, which would conduct an investigation and then hand over the judge to the law enforcement agency for prosecution. That is one argument; but on the other hand, if for example, a judge or any other professional or any other person for that matter commits a crime, and he’s prosecuted; the fact that he has been prosecuted and convicted is a great advantage for institution building. So, I think it is a matter of procedure.

The NJC is the body responsible for supervising judges, but it does not conduct investigation. It only conducts investigations into petitions or complaints you make to it about any particular judge in the course of the performance of his duty. But if a crime has been committed by a judge or a judicial officer or anybody for that matter, the NJC does not investigate a crime. So, the agencies that have been vested with the duty to investigate crime are usually the law enforcement agencies such as the police, EFCC, ICPC, DSS. The DSS is a secret agency; if they have information about the commission of a crime, there is nothing wrong for them to investigate the crime and if they find that there is an evidence of the crime, they can then hand the person over to the prosecuting agency to handle. I would, therefore, not see the mere fact that judges are being investigated as amounting to an attack on the judiciary.

I don’t see anything that is unconstitutional about the raid of the residences of the judges by the operatives of the Department of State Services. I am of the view that what happened should have happened about five years ago. The corruption in the judiciary has got to a condemnable level. We (lawyers) knew that something like this was bound to happen. It is happening rather too late. We should ask, is there any justification for the action of the operatives of the DSS? When it comes to presenting evidence, it is not compulsory to do so in a conventional way. No law says a criminal cannot be dealt with.

The NJC cannot even say that the DSS should not make arrests in the midnight. It is only when one has committed an offence or suspected to have committed an offence that such a person can be arrested. You can even be arrested on a Christmas day or New Year day. A lot of terrible things are happening in this country. One would have expected the NBA to have intervened and cried foul. When a judge was attacked in Ekiti some years ago, what did the NBA do? What could be more humiliating than a governor going to a courtroom to attack a judge?

The same governor is the one leading those who are condemning the DSS. This is the same governor that beat up a judge. Then, the NBA was silent. Why are they talking now? How can anybody defend a judge that money was found in his residence? Nobody keeps money at home. The monetary evidence is suggestive. The DSS simply acted on the petition received. The DSS acted based on evidence. It was a result of complaints. I don’t think those condemning the DSS got it right. They (DSS) only went ahead to procure evidence. If they had told the judges they were coming, they (judges) would have cleared their houses and kept the evidence. Imagine a judge going to a supermarket to take money. Sometime ago, one of the judges collected N200m, the NJC only told him to pay it back in instalments. Is that not a pact? If you have been found to have collected a bribe, is the punishment to merely pay it back in instalments? It is very wrong.

Compiled by: Rahmon Oladimeji, Toluwani Eniola and Geoff Iyatse

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