Arrest Of Judges, Democracy And The Rule Of Law

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I write this piece as Kyuka Lilymjok, not as Prof. Adamu Kyuka Usman, Senior Special Assistant to the President on Legal Matters, Research and Documentation.  I am speaking my mind on the subject of the write-up as a Nigerian, and not as the mouthpiece of the President.

The arrest of some judges by the Department of State Security Service on the night of Friday 7th October, 2016 on grounds of corruption generated angst and disquiet in some quarters in the country as it generated happiness and jubilation in other quarters. In the Nigerian Bar Association, particularly among privileged members of the inner Bar who have been dining and wining with the judges, the arrest generated an uproar of anger and umbrage. This is understandable. In fact, I am rather surprised some of these lawyers were not found dining and wining with the judges when the latter were netted by men of the DSS. On the other hand, reactions of underprivileged members of the outer Bar that I have seen so far in the social and conventional media had been mostly supportive of what the DSS did. This is also understandable. They have not been dining and wining with the arrested judges.

The incumbent NBA President Abubakar Mahmud flanked by previous Presidents of the association was visceral in his reaction. He declared a state of emergency over the judiciary.  State of emergency over the judiciary? Honestly, I don’t know what this means. In the dictionery, state of emergency means a temporary system of rules to deal with an extremely dangerous or difficult situation. Which temporary system of rules does Mahmud intend to roll out to deal with the arrest of the judges which, by his pronouncement, he sees as a dangerous situation? As NBA President, has Mahmud the powers to roll out such rules? Your guess is as good as mine.

If a state of emergency were to be declared over the judiciary, I thought it should be declared either by the Nigerian President or the Chief Justice of Nigeria and not the President of the Nigerian Bar Association. Wherefore did Mahmud get his extraordinary powers to declare a state of emergency over the judiciary? Well, members of the learned profession, which I happen to belong to, may see and know of powers lay Nigerians do not see or know of. This said, I think the NBA President should have been wary of sailing his ship too close to usurpation. Not doing so, he created an extremely dangerous or difficult situation that may in its turn call for a declaration of some form of state of emergency over his own state of emergency.

State of emergency over the judiciary. I wonder why Abubakar Mahmud on assumption of office as NBA President did not declare a state of emergency over the rot in the Nigerian Bar Association which he presides over. To the legal profession, and I dare say to the Nigerian state, democracy and the rule of law, nothing is more dangerous and hazardous as the sunk state of the Nigerian Bar where professional ethics have been thrown to the wind, and mammon dictates causes lawyers fight for.

The judges must be released, else there will be consequences Mahmud declared further. Which consequences will there be? The NBA President did not give indications. But going by NBA antecedents, the consequences are likely to include boycott of courts and frustration of the government anti-graft crusade in the law courts which, by the way, members of the association have been doing before now. You know what the leper said when told God will deal with him! He said, ‘how many times?’

Intelligence on corruption available to the DSS that led to the arrest of the judges by men and officers of the DSS reminds me once more of the damning view of judges by one of my characters in Hope in Anarchy:

‘The Republican police were sent to arrest armed robbers, but did not return. It was later found they had joined the armed robbers. Eventually, both the police and the armed robbers were brought to the judges for trial, but the judges joined them. This is the order of things in our Republic today.’

Democracy and the Rule of Law which the lawyers found their case against arrest of the judges on are predicated on certain assumptions that do not hold true for Nigeria. The theoretical and practical foundations on which democracy and the Rule of Law are anchored in the Western-style democracy Nigeria is operating is that judges will be incorruptible and give effect to the letter and spirit of the law without fear or favour. Were the question to be put to ordinary Nigerians whether Nigerian judges answer to this assumption, your guess is as good as mine what their answer will  be.

The entire concept of separation of powers is anchored on the assumption that the three arms of government will share the same vision and mission for the country.  Is that the situation in Nigeria today? By all outward showing, it is apparent that a good percentage of members of the National Assembly and the Judiciary do not share the same vision and mission with the executive — particularly the Nigerian President, on the fight against corruption.  As a matter of fact, the executive seems to be caught in a tug-of-war with most members of the National Assembly and the Judiciary over the anti-graft war.

The executive, represented by the President, is pulling the country away from corruption while some members of the other two arms of government are pulling it towards corruption. Both hands of the President are on deck on the fight against corruption; most hands of the other arms of government are not visible to me on the deck. If they are not visible on the deck, they are under the deck and what they are doing under the deck is not helpful to the anti-corruption war.

It is agreed by almost all that the operation DSS carried out against the judges was a sting operation. Sting operations are surprise operations to nab criminals either while they are committing crime or while they still have the proceeds of crimes with them. They are part of the process of enforcing the criminal law in any state. They are usually inspired by credible intelligence a law enforcement agency like the DSS has in its possession which if not acted on timely and with surprise can lead to criminals not being apprehended or apprehended but unsuccessfully prosecuted. If either of these happens, society loses, the criminal gains.

Common sense will tell anyone that if criminals are caught commiting crime or with the proceeds of crime on them, it is much easier to successfully prosecute them than if they are investigated and prosecuted after the act of crime or without the proceeds of crime on them. This makes the sting operations carried out by the DSS imperative if not desirable. If the account of the DSS is to be believed, and as yet, I have no reason to doubt it, when the houses of the judges were raided, there were found huge volumes of local and hard currencies – dollars, pounds and euros. How do they come by such monies other than by crime?

Assuming no such monies were found with the judges, I feel the courtesy call by DSS on the houses of the judges is still justified if men and officers of the DSS acted on reasonable suspicion or prospects of finding such monies with the judges. The law is well settled on the fact that a law enforcement agency or officer is entitled to act on reasonable suspicion. If his suspicion turns out not to be true, he is immuned from legal action by the aggrieved party.

All these reasoning of course will cut no ice with most lawyers. Most lawyers would rather the judges were reported to the National Judicial Council for investigation and disciplinary action so that they can have all the time in the world to conceal the proceeds of their crimes thereby making it difficult or impossible to establish their guilt. This is not fair to Nigeria and I don’t think it is even fair to the Nigerian Bar Association.

The National Judicial Council has always been there. What drastic action has it ever taken against corrupt judges beyond retiring them quietly and allowing them walk away with their loot?  I am not even aware of any Supreme Court Justice that has been so sanctioned by the NJC. Does it mean justices of the Supreme Court are not corrupt? If the NJC fails to do its work, DSS has done it for them and I feel the latter deserve commendation for a job well done. All the intelligence organization needs do now is to ensure the Attorney General of the Federation successfully prosecutes the arrested judges to serve as deterence for other judges on their wake.

For long, corruption has festered and seethed in the Nigerian judiciary like corpses in a mortuary with poor refrigeration. It has hovered over the sanctuaries of justice like a dark spectre; like Cassius’ ravens, crows and kites that  fly over our heads and downward look at us as if we are sickly preys; like Cassius’ canopy most fatal under which the nation lies ready to give up the ghost. It has ranked out of the hallowed chambers like an echo of doom. Its stench has issued out of the sacred halls of Themis like smoke from the chimney of Hakoli.

When serving in one of the states of the Federation in the early 1990s, a judge after receiving bribes from both the plaintiff and defendant delivered judgment for both parties. Both parties won he said. So they should get out of  his court and sort out themselves. Fact is, some of our judges shine and stink like rotten mackerels in the moonlight; fact is, some of our judges are rotten as the gills of an old mushroom and have been so for long, with immunity and impunity.

 — Lilymjok  is senior special assistant to the President on legal matters

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