- The raiding of the official homes of some Nigerian judges as well as their arrests have continued to generate conflicting opinions
- The judges are alleged to have corruptly enriched themselves against the tenets of the legal profession as practised in Nigeria
- Though the Nigerian Bar Association has condemned the arrest of the judges, some lawyers in the country have shown that the DSS may be right in their action
Some lawyers have sharply disagreed with the Nigerian Bar Association (NBA) over its position on the raiding and arrest of some senior judges in the country by officials of the Department of State Services (DSS).
The judges were raided at the weekend with the DSS confirming that hundreds of millions both in local and foreign currencies were recovered from some of the arrested judges, two of whom are in the Supreme Court.
Hours after the judges were arrested, the NBA, through its president, Abubakar Mahmoud, threatened to take action against the government of President Muhammadu Buhari if they were not released immediately.
The umbrella body for lawyers also set up a committee of its past presidents to liaise with the executive arm of the federal government with a bid to resolve the crisis.
However, while the judiciary has remained divided over the development, some notable lawyers have criticized the NBA saying its stand does not represent the interest of some of its members.
In his position, the second vice president of the NBA, Monday Ubani, did not criticize the NBA or the DSS, but urged for caution among Nigerians.
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He agreed that this was the first time in the legal history of Nigeria when judges' homes would be invaded in such manner and in such “an ungodly hour.”
He said: “The NBA has condemned this method of arrest employed by the DSS and has demanded the release of the arrested judges.
“Being an unprecedented event in our history and shocked to their marrows at the approach employed by the security outfit, the NBA has declared a state of emergency on the legal profession (this was not expatiated upon by the president).
“To an average lawyer it is desecration of a sacred institution, a destruction of the third arm of government and unbridled effrontery against the legal profession.
“To the tribalist, this is a war against the South especially now that a Chief Justice of the Federation is coming down to south after several years in the north. That position has been resident in north for over twenty years or so.
“DSS has denied the fact that Justice Onnoghen who is tipped to be the next CJN by the grace of God is under investigation by them.
“To the religious bigots, this fight is against the Christian judges. Wait a minute I heard that about three northern judges of different religion were also arrested. To the party loyalists, APC government is under rampage against the opposition party especially judges who gave victorious judgements to their incumbent governors.
“Before I ask you where you belong in all these, I want to say that corruption must be fought with the last drop of blood we possess to reclaim Nigeria irrespective of class, creed and religion but I advise that we must please follow our laws strictly and diligently in order to attract the support of the majority.
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“We must exorcise corruption from all our institutions including from the executive and the fight must remain total and impartial.”
In his reaction, Femi Falana, a Senior Advocate of Nigeria and human rights lawyer, slammed the NBA and accused the body of covering up for corruption in the judiciary even with information about some judges.
To him, it is embarrassing that the NBA has not got the will to deal with corrupt officials adding that this was responsible for the current state of the nation’s judiciary.
“In particular, the Nigerian Bar Association which has information on all corrupt judges and lawyers in the country has continued to shield them to the embarrassment of incorruptible members of the bar and the bench.
“The few lawyers who have plucked up the courage to expose corrupt judges and lawyers have been stigmatised and treated like lepers by their colleagues.
“It is on record that when both the Independent Corrupt Practices and other Offences Commission and the Economic and Financial Crimes Commission sent invitation letters to judges suspected of corruption they had rushed to the Federal High Court to obtain interlocutory injunctions to prevent their arrest, investigation, and prosecution.
“It is on account of negligence on the part of the legal profession that the SSS which screens candidates before they are recommended by the National Judicial Council for appointment as judges has now engaged in the arrest of judges for alleged corruption and abuse of office,” he said adding that the judiciary put itself in a position to be embarrassed for refusing to act.
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Falana continued: “It is a matter of grave concern that the legal profession has allowed the denigration of the hallowed temple of justice because of the misconduct of a few corrupt judges.
“For several years, judges who committed grave criminal offences were not prosecuted but merely retired by the authorities on the recommendation of the National Judicial Council.
“Although the National Judicial Council recently recommended the dismissal and prosecution of a judge for extorting the sum of N197m from a litigant the authorities had paid lip service to the menace of judicial corruption in the country.”
He urged that the judges should be admitted to bail since they are considered innocent until proven guilty. He also urged Abubakar Malami, the country’s attorney-general, to make sure the judges are immediately arraigned.
While reacting also in a very lengthy article, Inibehe Effiong, lawyer and convener of the Coalition of Human Rights Defenders (COHRD), noted that 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 and this affects the president, the vice president, governors and deputy governors.
“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.”
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“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,” he said.
Continuing, Effiong noted that some people have argued 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.”
Concerning reports that the operatives broke into some of the homes, Effiong quoted sections of the law to defend the action.
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“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 acess 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 acess 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."