The DSS arrest of Four Judges ,Matters Arising:

The Legal society and some members of the general public have been up in arms over the arrest of some senior judges in Nigeria over the weekend. Conflicting details keep filtering out but apparently these judges who have been under surveillance by the DSS, were arrested and search warrants issued to search their premises, the searches carried out discovered piles of cash stocked in their houses that were allegedly paid to them to influence cases.

Immediately I heard the news my first reaction was that I hope due process was followed, The Judiciary is supposed to be an independent arm of government, I hoped that the sanctity of its independence had not been polluted with this action. Regardless of the severity of the corruption allegations against the judges what is the position of the law on this matter.

Judicial Immunity is a form of legal immunity which protects judges and others employed by the judiciary from liability resulting from their judicial actions. Judicial immunity does not protect judges from suits stemming from administrative decisions made while off the bench, like hiring and firing decisions. But immunity generally does extend to all judicial decisions in which the judge has proper jurisdiction, it’s very clear that Judges do not have any immunity in criminal or civil matters.

Search Warrant: Part 18 Search Warrant of the newly signed Administration of Criminal Justice Act of 2015.
Section 143

Where an investigation under this act is being made by a police officer, he may apply to a court of justice of the peace within the local limits of whose jurisdiction he is for the issue of a search warrant.

Section 148
A search warrant may be issued and executed at any time on any day, including a Sunday or public holiday.
149 (1)
Where any building, thing or place liable to 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.
149 (2)
Where access into the building, thing or place cannot be obtained, the police officer or any other person executing the search warrant may proceed in the manner prescribed by section 9, 10, 12, and 13 of this Act.
12 (2)
Where access to a house or place cannot be obtained under subsection (1) of this section, the person or police officer may enter the house or place and search it for the suspect to be arrested and in order to effect an entrance into the house or place may break open any outer or inner door or window of any house or place. Whether that of the suspect to be arrested or any other person or otherwise effect entry into such house or place if after notification of his authority and purpose and demand of admittance duly made, he cannot obtain admittance.

In 1999, in order to give the service more bite and reposition it for greater efficiency, by virtue of Instrument No. 1 of 1999 relating to the general duties of the SSS as set out in Section 2-(3) of the decree’s objectives, the SSS is  mandated to carry out the following functions amongst others :
(i) Prevention, detection and investigation of:
•Threat of Espionage;
•Threat of Subversion;
•Threat of Sabotage;
•Economic crimes of national security dimension;
•Terrorist activities;
Separatist agitations and inter-group conflicts;
•Threat to law and order

In furtherance of the doctrine of separation of powers, the National Judicial Council is the body primarily charged with the discipline and appointment of judges involving violations of the Code of Conduct of judges in S.292(1) of the Constitution.

A petition can be brought against a judicial officer and shall be written to the National Judicial Council (NJC) who shall give a directive for the investigation of the allegation against the particular judicial officer. The investigation must be based on the strict adherence to the principles of fair hearing as is provided for in the Constitution. The judicial officer in question must be properly informed of the allegation leveled against him and the petitioner must support his allegations with credible evidence.
On the event that the judicial officer is found guilty, there are certain penalties that he could face. These penalties are as prescribed by the laws which regulate the conduct of these men and women of the judiciary.

As stated earlier several conflicting information has filtered out from   the actions of the DSS and the following pertinent issues need to be addressed.
1)      Under Section 151 of the ACJA, a search warrant cannot be executed outside 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, did the DSS comply with this directive when carrying out the search on the premises of the Judges?

2)      Does the DSS have power to investigate and arrest civilians on offences relating to bribery and corruption? The amended instrument of the DSS ACT , Instrument 1, of 1999 appears to give the DSS leeway however does the grave allegations leveled 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? This is debatable but I am of the opinion that the EFCC would be a more appropriate body to have investigated these allegations.

3)      Judges are not above the law. We have already clarified that Judges do not have immunity against criminal offences, however a lot of pundits have posited that the appropriate process would have been to write a petition to the NJC and have the judges removed if found guilty of these offences, but the impartiality of the NJC is called into question and there appears to be a  misconception (that I previously had)  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. This 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.

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.

It is my opinion that both causes of action can either run concurrently or separately depending on the circumstances of each case.

In conclusion this is a very controversial action that has been carried out by the DSS, If members of the public have filed petitions to the organization complaining about judgments of the Federal and Appellate courts one would think the appropriate action to take is to file a petition with the NJC, but perhaps there is more than meets the eyes in this instance, perhaps the Government through the use of its security agencies is fed up with the “alleged” corruption that goes on in the Judiciary and are not interested in going through the bureaucratic process, It remains to be seen if the DSS acted within its capacity in their conduct of this investigation, it also remains to be seen how the Judiciary will react to this alleged affront of their members, personally after the hours of research of information I undertook on this issue there are a lot of grey areas that still need to be addressed.

These Judges are not above the Law, and it appears that the Executive might have just found a gateway in the laws  as an opportunity to sanitize the judiciary.

I predict we will see a lot of rhetoric, threats and law suits et all from this action.
Interesting Times