DSS’ Search and Arrest of Judges: Municipal and International Law Perspectives by Ibikunle Isaac
Ibikunle Motunrayo Isaac interrogates the powers of the Department of State Services (DSS) to investigate corruption cases following the famous 2016 arrest of judges. Being a paper delivered at the Magna Curia Chambers’ Leadership and Academic Seminar on 18th October, 2016 at Balogun Olabisi Omidiora ICAN Lecture Theater, OAU, Ile-Ife, Nigeria.
SOLE ISSUE FOR DISCUSSION:
Whether the search and arrest of judges, and the manner same were carried out were truly in compliance with the enabling laws?
INTRODUCTION:
All protocols duly and dutifully observed. I extend my sincere appreciations to the leadership of this Chambers, Magna Curia Chambers, for the noble invitation.
The purpose of this paper is not necessarily to advance arguments in support or against the search and arrest of judges, as many observers have done enough on this; but to, on the basis of the facts presented so far by all parties involved, expound the law, statutory, judicial, municipal and international, in relation to the October 7th/8th controversial event with a view to widening our knowledge of law, politics and history; and to enabling us form an objective and informed opinion about the propriety, legality or otherwise of the DSS acts, no matter our affiliations and prejudices.
THE FACTS:
DSS operatives, allegedly masked and heavily armed,[1] in a simultaneous operation, stormed the residences of nine judges across the country. The search was in the night.[2] Searches were carried out. The men forcefully broke open some doors and safes where their targets allegedly put-up resistance[3]. In the course of the search, family and aides of some of the judges were beaten up.[4] As at the time of the search and arrest, out of the nine justices, three had been found guilty and suspended by the NJC and one of the trio recommended for prosecution (Tsamiya J.C.A., Umezulike C.J., Auta J.); one had been investigated on the Petition from DSS but found innocent (Pindiga J.); two were still under investigation (Ademola and Dimgba JJ.); two did not have any petition against them either by the DSS or any other person (Okoro and Ngwuta JJSC.). DSS wrote petition against only two out of the nine justices.[5] During the search, money, phones and documents were taken away by the DSS men while the judges were also arrested and taken to the DSS office, including Dimgba J against whom the DSS men couldn’t allegedly produce a search warrant[6].
There are allegations that DSS swooped on the judges not necessarily because of corruption, but because some of the latter gave several judgments against the former[7], owing to an age long feud between the AG and one of the judges[8], because one of the judges refused the order of the DG of DSS to compromise his judgment when he was Chairman of Electoral Tribunal in Rivers State[9], and because some of the judges came into the Judiciary with the influence of the former ruling party, the PDP and therefore giving judgments against the current party. There are also allegations that over N300 million raw cash in local and foreign currencies were found in the apartments of these judges, that some of them are notorious for going as far as neighboring countries to get the bribes.[10]
THE LAW:
What does the law say about all the aforementioned facts vis-à-vis the manner of the search and arrest? What are the statutes, the judicial authorities, the treaties and the general principles of municipal and international laws that regulate search and arrest of ordinary citizens- judges or not?
Do serving judges really have immunity from search, arrest and prosecution under the 1999 Constitution?
If the answer to the above is NO, can DSS search, arrest and prosecute judges without a first recourse to NJC?
Does DSS truly have the power to investigate, search, arrest and prosecute corruption cases such as economic and financial crimes?
Were the DSS men armed with valid search warrants?
If the answers to the two penultimate questions above are in the affirmative, was the manner of search and arrest not in violation of enabling laws?
In other words, if the search and arrest of judges were in compliance with the provisions of the National Security Agencies Act[11], the Instrument One[12], the Administration of Criminal Justice Act,[13] can the manner survive the same fate under the 1999 Constitution[14], the African Charter[15], International Covenant on Civil and Political Rights[16] and other international treaties which require that all derogations/limitations to human rights must in each case be reasonable, necessary, proportional and in good faith?
Do serving judges really have immunity from search, arrest and prosecution under the 1999 Constitution? If the answer is NO, can DSS still search, arrest and prosecute judges without a first recourse to NJC?
Section 308 of the 1999 Constitution, the highest law of the land, does not include judges in the list of the beneficiaries of immunity. Therefore, serving judges can be searched, arrested and prosecuted.
But is there no condition precedent before any executive agencies can search, arrest or prosecute them? NJC[17], NBA[18] and some legal luminaries are of the view that before such acts are carried out, recourse must be had to the NJC, being a body constitutionally empowered to discipline erring judges[19] as the independence of the judiciary is constitutionally guaranteed and same should be jealously guided for the sake of our democracy and freedom from executive abuse currently enjoyed by all. Meanwhile, the Executive Arm, the DSS and some other legal luminaries hold an opposing view on the ground that reading such interpretation into the powers of the NJC is contending that judges are above the law, that such would lead to absurdity as corrupt judges would be shielded from trial especially if the majority of the members of the NJC are also corrupt.[20] The arguments on both sides are, as a matter of fact, sound.
Does DSS truly have the power to investigate, search, arrest and prosecute corruption cases?
The DSS was established by Section 2 of the National Security Agencies Act. Same Act is one of the four acts that have express constitutional backing by virtue of Section 315(5) of the 1999 Constitution.[21] Under the Act, the DSS is given, among others, power to detect and prevent ‘any crime against the internal security of Nigeria.’ By virtue of Instrument One of 1999, a subsidiary legislation, purportedly made by General Abdusalam Abubakar, the then head of state, pursuant to Section 6 of the National Security Agencies Act the DSS has the power to detect, investigate and prevent ‘economic crimes of national security dimension’.
The Instrument One appears to be of doubtful existence. It was not gazetted according to reports[22].Personally, I checked through several gazettes and relevant compilations of statutes, I couldn’t find it. The non-gazetting cast doubt on the existence and full scope and contents of the law by the public. Questions like “is the meaning or list of what economic crimes include stated in the act? Are there qualifications or limitations to the DSS powers in the Instrument?” These as of now cannot be ascertained. It must however be noted that non-gazetting of Instrument One does not necessarily vitiate the legislation, if the DSS can prove its existence.
Whereas if the existence of the Instrument is substantiated and there are no extenuating provisions in the same law, the DSS would also need to prove that the arrest of the judges fall within economic crimes that are ‘of national security dimension’
DSS would also have to prove that Instrument One, being a subsidiary legislation, has not by virtue of the vesting the powers to detect or prevent ‘economic crimes’ expanded the provisions of the main Act, NSA Act. For ‘it is a settled law… that a subsidiary legislation cannot expand or curtail the provisions of the substantive statute. It must be within the authority derived in the main enabling statute’.[23]
It appears DSS would not have difficulty in establishing this as section 2(3) of the NSA Act empowers the President to give DSS ‘such other responsibilities affecting internal security of Nigeria’.
Meanwhile, the aforementioned powers granted DSS when compared with powers given to EFCC on similar subject matter[24], economic crimes, seem broad and general. The EFCC Act, a main legislation like the NSA Act, is more specific in terms of details of economic, financial and related crimes and the scope of powers vested thereto, making same a special enactment. Thus, the said powers of the DSS are capable of being declared inapplicable by the courts by virtue of the trite principle of law: generalia specialibus non derogant[25]. Agbaje JSC in Schroder v. Major & Co (1989)[26] said:
“It is an accepted canon of construction that where there are two provisions, one special and the other general, covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision. The reason behind this rule is that legislature in making the special provision is considering the particular case and expressing its will in regard to that case; hence the special provision forms an exception importing the negative; in other words, the special case provided in it is excepted and taken out of the general provision and its ambit, the general provision does not apply’’.
Onoghen JSC in Dr Umar Ardo v. Admiral Murtala Nyako (rtd) & 2 ors,[27] put it succinctly as follows: “In short, a special provision is interpreted as taking away the effect of a general provision”.
Were the DSS men armed with valid search warrants?
ACJA seems the most appropriate criminal procedural law considering the status of the parties involved and the offences being investigated being federal offences. Section 148 allows a validly obtained search warrant to be executed any time, be it night or broad daylight, of any day including Saturday and Sunday. Section 144(2) (b) allows the occupier of the searched premises to be arrested if same is directed on the warrant by the magistrate or justice of the Peace who issued it. By virtue of Section 151 however, a search warrant cannot be executed outside the jurisdiction where it is issued except with the consent of the court within whose jurisdiction the search is to be made. It is doubtful if the DSS complied with this latter provision, although the Executive arm has said that DSS did comply with the law. Let’s hope so. More so there is a presumption of regularity in DSS favour in law.
If the search and arrest were in compliance with the provisions of the NSA Act, the Instrument One, the ACJA, can the manner they were executed survive the same fate under the 1999 Constitution, the African Charter, the International Covenant on Civil and Political Rights and other international treaties which require that all derogations/limitations to human rights must in each case be reasonable, necessary, proportional and done in good faith?
Just as every other citizen, judges are also entitled to respect of their fundamental rights. Search and arrest are derogations from these rights particularly rights to privacy, property, liberty and freedom from attacks on one’s honour and reputation[28]. These rights are enshrined in the 1999 Constitution, the African Charter[29] and the International Covenant on Civil and Political Rights[30].
It is a settled principle of law that right is the rule, derogation is an exception; as such, any derogation, such as a search, an arrest, a detention, must not only be in accordance with the mere dictates of the enabling laws, but must also not be arbitrary.[31]
The UN Human Rights Committee in the case of A.W. Mukong v. Cameroun[32] when reviewing the detention of a Cameroonian said:
“arbitrariness is not to be equated with against the law but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process. This means that remand in custody pursuant to lawful arrest must not only be lawful, but reasonable in the circumstances. Remand in custody must further be necessary in all circumstances, for example to prevent flight, interference with evidence or the recurrence of crime”
Section 45 of the 1999 Constitution, which contains the derogation/restriction clauses, also provides that they must be “reasonably justifiable in a democratic society”. It is the same with the relevant Articles of the African Charter.[33]
Also it’s a trite law that statutory powers such as the DSS powers of search and arrest must be exercised not just in compliance with the law but also reasonably and in good faith. The Supreme Court in Psychiatric Hospital Management Board v. Eyitagha (2000) 11 NWLR (pt 677) 155 stated thus:
“It is well settled that a public body invested with statutory powers… must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably.’’
Lastly, derogation/limitation must also satisfy the doctrine of proportionality, in that, the act of derogation must be a proportionate means of achieving a legitimate aim. In considering whether an act, such as a search and an arrest, is proportional, there is the need to ask the following questions: is there a legitimate aim? If yes, are the means employed in pursuing the aim appropriate and necessary? Are there no less derogatory alternative means? Has sufficient regard been paid to the rights and interests of those affected?[34] It is a common knowledge that the legitimate aim of a search is “finding evidence of a commission of crime”[35].
Flowing from the above therefore, to determine whether the manner of search and arrest of the judges by the DSS can be adjudged as being in full compliance with the law, it is not sufficient to prove that it complies with the NSA Act, Instrument One and ACJA, but to also prove that they were devoid of elements of arbitrariness or abuse; that is, the search and the arrest and the manner were reasonable, necessary, proportional and done in good faith.
To determine the foregoing, the following questions are pertinent:
- Since the legitimate aim of a search is for the purpose of finding the evidence of the commission of a crime, was it the case that if the DSS had gone to the judges’ residences in the morning of the following day, Saturday, the evidence of the allege crime (such as the money, phones, documents siezed) would have disappeared and destroyed?
- What legitimate aim was so urgent that night that made such a nocturnal “invasion” inevitable?
- Why were the DSS men heavily armed and masked and in large numbers when it was obvious that they were coming to search and arrest armless justices? Why such maybe necessary and reasonable in the case of search and arrest of Boko Haram commanders, notorious drug barons, niger-delta militants, armed herdsmen, is the same excusable in the present circumstance?
- Were there no less derogatory means? Such as
- Inviting the justices for questioning through the NJC just as they did with Pindiga J.?
- Tracing the cash flow in their bank accounts and that of their family members to detect suspicious transactions just as it has done with many ‘big’ politicians and same had yielded beneficial results?
- Had the judges been declared wanted before, such that they now become fugitive whose criminal status necessitated such sudden and nocturnal burst?
- Why the simultaneous search and arrest of all the judges? More so, arresting those already found guilty ( Tsamiya JCA, Umezulike CJ and Auta J.) along with those who have been declared innocent (Pindigan J.) and whose investigations are still pending before the NJC (Ademola & Dimgba JJ) and those who do not have any pending petition or case against them (Okoro & Ngwuta, JJSC)? Was that not a calculated attempt to cast doubts on the constitutional guaranteed rights of presumption of innocence of the others? Was such a large scale operation not intended to cast aspersion on the integrity of the Judiciary as whole?
- If the allegations of Dimgba, Ademola & Pindiga JJ that DSS came after them for personal and political reasons as revealed in their letters/replies to NJC are proved to be true, has the DSS not exercised its powers in bad faith? What of the allegations by the NJC that the DSS was out to humiliate, intimidate and cow the Judiciary?
These and many more questions are relevant in this circumstance.
LESSONS FROM HISTORY/RECOMMENDATIONS/CONCLUSION:
No! If you are expecting me to mention the story of Adolph Hitler of Germany, Mobutu of Congo to paint the picture of historical figures with popular mandate but who later weakened the courts, the Parliament and later became dictators, sorry, you are mistaken! Their cases may be adjudged extreme.
Towards the mid 20th Century, the USA was enmeshed in great economic recession known in history as the Great Depression where many lost jobs and means of livelihood. The great Franklin Roosevelt was the President with huge popular mandate especially in his second term as his policies popularly known as the New Deal was already changing the economic woes positively. Meanwhile, some of the Acts which were extremely necessary for the positive changes, which he proposed, debated and passed by the Congress and signed into law by him were to the chagrin of the populace declared unconstitutional, null and void and inoperative by the Supreme Court. There and then, he went on media campaign against the Judiciary, describing them as the enemy of progress. Later he lobbied the Congress into passing the Judiciary Reorganization Bill which would enable him have the power to solely determine who and who became Justices of the Supreme Court and to replace the existing ones. Yes! He had the popular mandate; yes! The verdicts of the SC were anti-progress, anti-people so to say. But the Americans, the media, the Congress, even congress men from the President’s party, the Democratic Party, rejected the Bill on the ground that,though the Bill was well intended, it posed great danger to the independence of the Judiciary which was indispensable to the continued enjoyment of liberty and democracy by all. Perhaps, if he had had his way, his next move would have been to use the Police to close the Congress,, still on the shoulders of popular mandate and the slope will continue into dictatorship.[36] In the early 1700s, England also had similar historical temptation, but the masses and the political class resisted it.[37] Today, the two countries enjoyed the benefits of their foresight and vigilance.
On the other hand, in 1853, the constitution of Argentina created a Supreme Court with similar powers like that of the USA. In 1946 Juan Domingo Peron, a former Colonel was democratically elected President of Argentina. Shortly after his emergence, the SC gave series of judgments against his administration. His supporters in the Parliament, Chamber of Deputies and the Senate, impeached the Justices on this ground and some others. Also he was given power to fill the courts with his stooges. With this he conveniently jailed the leaders of the opposition and others and became a dictator. The trend continued with the subsequent Presidents till 1990s with the attendant economic and political woes. Peru and Venezuela also toed the same line.[38]
In conclusion, in addition to the laws expounded above, in determining which side to take on the manner of the search and arrest of the justices, history has presented to us with two choices: which one would you follow? Mine I know.
Thank you for your time and rapt attention!
[1] See the National Judicial Council (NJC) Press release on the incident titled ‘The Position of the National Judicial Council on the Recent Invasion of the Residences and Arrest of Judicial Officers by the Department of State Services < https://placng.org/i/the-position-of-the-national-judicial-council-on-the-recent-invasion-of-the-residences-and-arrest-of-judicial-officers-by-the-department-of-state-services-dss/ >; same corroborated by the letters written to the NJC by Ademola and Dimgba, JJ published in The PUNCH on the 16th of October < https://punchng.com/arrested-judges-fight-back-say-agf-dss-persecuting-past-judgments/ >; The DSS did not contradict this account.
[2] This was nowhere disputed by the parties.
[3] See the DSS report as published by Daily Post < https://dailypost.ng/2016/10/08/arrested-high-ranking-judges-dss-releases-official-statement/ >
[4] See the account of Dimgba J. published in The Punch supra.
[5] See the NJC response supra. This has not been denied by the DSS.
[6] See the account of Dimgba J. published in the Punch supra. Media reports had earlier hinted at this.
[7] See the letters of Ademola and Dimgba JJ to NJC as published in The Punch supra.
[8] See the letter of Ademola J to the NJC as published in The Punch supra.
[9] See the media report on why Pindiga was removed as the Chair of the Rivers State National Assembly Electoral Tribunal and the Judge’s reply to the NJC when DSS wrote a petition against him at the NJC.
[10] See the DSS release after the operation as published in different media. See Daily Post supra.
[11] National Security Agencies Act, 1986.
[12] Instrument one of 1999.
[13] the Administration of Criminal Justice Act, 2015.
[14] Constitution of the Federal Republic of Nigeria, 1999, as Amended.
[15] The African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 1982.
[16] International Covenant on Civil and Political Rights, 1966.
[17] National Judicial Council.
[18] Nigerian Bar Association.
[19] Section 153 and Paragrah 21 of Part One of the Third Schedule. See the press release from the NJC, the Channels TV interview involving Mr Ozhekome SAN and Mr Jiti Ogunye Esq.
[20] See in the media the comments of the Minister of Information, Lai Mohammed and Chairman, Presidential Advisory Committee on Corruption, Prof Itse Sagay < https://www.sunnewsonline.com/judges-have-no-immunity-against-arrest-sagay/ >
[21] Other Acts are the National Youth Service Corp Act 1993, the Public Complaints Commission Act, the Land Use Act.
[22] https://www.premiumtimesng.com/investigationspecial-reports/209343-fact-check-nigerias-secret-police-sss-violating-law-illegally-parading-dss.html
[23] Olanrewaju v. Oyeyemi (2001) 2 NWLR (Pt 697) 229; See also Kuusu v. Udom (1990) 1 NWLR (Pt.127) 421
[24] See the EFCC Act
[25] Where there are two provisions, one special and the other general, on the same subject matter, the special provisions applies, the general does not.
[26] (1989) 2 NWLR (Pt 101) 1 @ 21
[27] LER(2014) SC. 135/2013
[28] Freedom from unlawful attacks to one’s honour and reputation is guaranteed under Article 17(2) of the International Covenant on Civil and Political Rights
[29] The African Charter on Human and Peoples’Rights (Ratification and Enforcement ) Act, 1982. It is already domesticated as required by section 12 of the 1999 Constitution. On the authority of Abacha v. Fawehinmi, where it is in conflict with the Constitution, it takes precedence.
[30] Not yet domesticated, but by virtue of Paragraph 3(2) of the Preamble of the Fundamental Rights (Enforcement Procedure) Rules, 2009 which was made pursuant to the Constitution, effect can be given to it.
[31] Col. Mohammed Sambo Dasuki v. FRN, Suit No: ECW/CCJ/APP/01/16, Judgment No: ECW/CCJ/JUD/23/16 decided by the Community Court of Justice of the Economic Community of West African States (ECOWAS Court) on the 4th of October, 2016; pages 34 and 35.
[32] Communication No 458/1991, views adopted on 21 July 1994, UN doc GAOR A/49/40, Vol.11, paragraph 9.8.
[33] Article 6 of the African Charter.
[34] http://www.scottishhumanrights.com/eqhria/eqhriatrainingproportionality
[35] http://definitions.uslegal.com/s/search/
[36] See Daron Acemoglu and James A. Robinson (2012): “Why Nations Fail: the Origins of Power, Prosperity and Poverty”, pages 325-329
[37] Ibid pages 302-324
[38] Ibid pages 329-332
