DSS Vs Judges: Between Separation Of Power And Armchair Criticism

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The weekend arrest of some judges by operatives of Department of State Service (DSS) over allegations of sleaze has sparked mixed reactions among Nigerians, with some of them pointing accusing fingers at the presidency. JONATHAN NDA- ISAIAH examines the intense debate and controversy the development has generated.

Like a well scripted Nollywood, clip men of the Department of State Service (DSS) at the weekend reportedly clamped down on some judges in their homes. Some of the members of the Bench were whisked away in the middle of the night by the security operatives. In Rivers State, Governor Nyesom Wike, apparently on a rescue mission, rushed to one of the judges’ house in the state to thwart his arrest. The  judges affected in the raids carried out in Abuja, Port Harcourt and Gombe State are those of the Supreme Court and Federal High Court.

No sooner had the news of the arrest of the judges filtered in than the media space became awash with condemnation and conspiracy theories. Critics, including lawyers and members of the opposition have all come out to condemn what they described as gestapo style arrest of the judges. Some analysts have also likened the arrest of the judges to the dark days of the military.

According to them, some of the judges the DSS arrested like Adeniyi Ademola and Nnamdi Dimgba of the Federal High Court and Slyvester Ngwuta and John Okoro of the Supreme Court are persons who had been critical in their positions on federal government’s anti-corruption war.

For instance, they argue that Justice Ademola is the judge handling the trial of Sambo Dasuki, former national security adviser (NSA), who is being prosecuted by the DSS for alleged illegal possession of firearms and money laundering. The judge, they argue has been critical of the DSS over its refusal to release Dasuki after he had granted him bail.

The opposition party, the Peoples Democratic Party (PDP) has said that Nigerians can no longer stand and watch Buhari’s government destroy democracy in the country.

“Even the late dictator – General Sani Abacha, whose regime is remembered by many as the second worst regime in Nigerian history, did not carry out such Gestapo style attacks on the members of the Judiciary. By bringing this attack to the Judiciary, President Buhari has shown that he has no desire to…respect the pillars of our democracy. He has shown his desire to kill off our democracy and convert it to an autocracy without checks and balances”, the PDP stated.

Hitting back at the major opposition party, the All Progressives Congress (APC) said it was concerned about the desperation of the PDP and some of its governors to drag the President into circumstances surrounding the reported raids of the homes of the judges by the State Security Service (SSS).

The National Secretary of the APC, Mai Mala Buni noted that the President Buhari APC-led administration strictly respects the principle of the Rule of Law and also adheres to the constitutional provisions of Separation of Power between the three arms of government.

Calling on all security agencies to respect and be guided by the rule of law in carrying out its constitutional duties, the APC said it finds the actions of some PDP governors and the reckless unsubstantiated allegations levelled by the PDP on President Muhammadu Buhari as the architect of the SSS raids curious and suspicious.

“The repeated allegations that ongoing corruption investigations and trials are politically-motivated by the President and the APC are baseless. The APC urges Nigerians not to be distracted by the PDP and their agents’ plot to discredit the hugely-successful war against corruption. For the umpteenth time, the PDP does not have the luxury of dictating how the current administration carries out its legitimate duty of catching looters, as long as it conforms to the rule of law”, the ruling party stated.

On its part,The Civil Rights Realisation and Advancement Network (CRRAN), in its reaction, said in the over 200 years of democratic experience of the United States of America only fifteen (15) federal judges have been impeached. Of those fifteen: eight were convicted by the Senate, four were acquitted by the Senate, and three resigned before an outcome at trial.

They recall that “John Pickering of the United States District Court for the District of Hampshire was the first judge to be removed from office on March 4, 1804, after he was convicted by the United States Senate on Charges of mental instability and intoxication on the bench.

“Thomas Porteous of the United States District Court for the Eastern District of Louisiana was the 15th to be removed from office by the United States Senate on December 8, 2010, on charges of accepting bribes and making false statements under penalty of perjury. It is noteworthy that all the above mentioned removals were done in accordance with the due process of the law by the United States Senate”, one of the analysts argued on social media.

“The Question is can a government elected to power under the provisions of the Nigeria Constitution 1999 (As Amended) jettison the constitutional provisions on the removal of Judges and claimed that it is fighting corruption”, he further queried, adding that “you cannot remedy the anomaly in the society by not following the constitutional procedures and the extant laws of the land”.

Also, the Chairman, Senate Committee on the Federal Capital Territory (FCT), Dino Melaye delved into the debate, arguing that although there is need to rid the judiciary of corruption, the approach adopted by President Buhari was totally wrong and unacceptable,

Melaye condemned the arrest and invasion of the residence of some of the Judges by the Department of State Services, saying the agency acted outside its core mandate. According to him, although Judges have no immunity and could be tried, the use of DSS by government was “absolutely wrong and unacceptable.”

He said, “I have studied the Act setting up DSS, Nigerian Intelligence Agency and DIA and can conclude that the DSS operatives went outside their core mandate. There is no doubt that many Judges are corrupt. It is also important to state the need to sanitise the judiciary of corruption that make Judges not to give commercial rulings which create terrible precedence in our legal system. Judges have no immunity and can be tried and should be tried but the use of DSS is absolutely wrong”.

On its part, the Nigerian Bar Association (NBA) declared a state of emergency in the judiciary and called on President Buhari to order the immediate release of the affected judges or there would be consequences. NBA President, Abubakar Mahmoud, in a press briefing in Lagos said it was not the responsibility of the DSS to arrest judges. He described the DSS action as an unconstitutional means of intimidating the judiciary and undermining its independence.

Mahmoud said, “I want to emphasise again that we are not under military rule and we cannot accept this unholy event and Gestapo-style operation. We, therefore, call on President Muhammadu Buhari to immediately caution all the state security agencies and to respect the rule of law and to respect due process”.

But taking it personally with his constituency, the NBA, Femi Falana( SAN), asked members of the legal profession to blame themselves for the harassment of judges by the security agencies. According to him, “it was 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 N197 million from a litigant the authorities had paid lip service to the menace of judicial corruption in the country.

“In particular, the Nigerian Bar Association which has information on all corrupt judges and lawyers in the country have 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.”

And rising in defense of the DSS’ action, the Presidency in its reaction to the accusing fingers pointed in its way said the recent clampdown on some members of the judiciary should not be misinterpreted as an affront on the judiciary.

The Senior Special Assistant media to the President on media and publicity, Mallam Garba Shehu assured that the President reserves his highest respect for the institution of the judiciary as the third arm of government. To this end, Shehu noted that the President will not do anything to undermine its independence.

According to the presidential spokesman, President Buhari remains a committed democrat, in words and in his actions, and will not take any action in violation of the constitution. He said, “The recent surgical operation against some judicial officers is specifically targeted at corruption and not at the judiciary as an institution.

“In a robust democracy such as ours, there is bound to be a plurality of opinions on any given issue, but there is a convergence of views that the country has a corruption problem that needs to be corrected.

The Presidential spoken decried that reports by a section of the media are giving them a cause for concern. In undertaking the task of reporting, Shehu said, the media should be careful about the fault lines they open noting it is wrong to present this incident as a confrontation between the executive and judicial arms of government.

“The Presidency has received assurances from the DSS that all due processes of the law, including the possession of search and arrest warrants were obtained before the searches. To suggest that the government is acting outside the law in a dictatorial manner is to breach the interest of the state”, he stated.

It is instructive to admit here that the Nigerian constitution stipulates the separation of powers between the executive, judiciary and legislature. This is why the DSS which takes instructions from the executive arm of government is seen to be overstepping its boundaries and the move is interpreted by many as the executive violating the principles of separation of powers.

Suffice to say that President Muhammadu Buhari’s change mantra is hinged on the fight against corruption and the president had severally lamented that the judiciary is his headache in the fight against corruption. The President has so far beamed his corruption searchlight on the military where former Service Chiefs that served under past administrations have been made to account for their sins. Mind boggling sums have been found to have been looted by some of the service chiefs in connivance with some party chieftains.

Even the Civil service has not spared in the anti- corruption war, as some civil servants have been relived of their duties in the wake of the budget padding allegations. Some analysts posit that it was the anti corruption stance of the president that blew the lid on the budget padding scandal that rocked the National Assembly.

Based on these assertions, some political watchers have said there is nothing wrong with the President beaming his anti-corruption searchlight on the judiciary. The thinking is that the judiciary which is the last hope of the common man has been compromised and any method the President deems fit to rid the judiciary of bad eggs is welcomed.

Besides, some other keen observers of the policy argue that arresting of judges deemed to be corrupt by security services is not peculiar to Nigeria alone. According to a report by an online news medium, On January 31, 2013, the FBI in America arrested nine judges for “conspiracy to commit wire and mail fraud, perjury, making false statements to the FBI, and aiding and abetting”. Some of the accused judges who were on the bench between 2008 and 2011 are William Hird and Michael Sullivan. They faced hundreds of years in prison.

Similarly, On November 4, 2015, the agency arrested a superior North Carolina court judge for bribery and corruption. The judge, Arnold Jones II allegedly attempted to bribe an FBI agent for information on what he described as a “family matter.” He was consequently faced with about 37 years in jail. Prosecutors said he approached the unidentified FBI officer in October 2015, and the two subsequently met in Goldsboro to exchange $100 for a disk supposedly containing the text messages.

Also, on May 30, 2014, the FBI arrested a superior Puerto Rico court judge for bribery. Manuel Acevedo Hernandez, the judge, was accused of accepting bribes to pervert the cause of justice in a fatal drunk-driving case. He was detained at his home after the FBI concluded its investigation.

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