Bastardising the principle and practice of separation of powers

Various opinions and reactions have trailed the recent invasion of the houses of various judges and their arrests and detention by the Department of State Services (DSS) over allegations of corruption and abuse of their judicial powers. For many people, who are obviously sympathetic to the Buhari regime’s war against corruption and who are in agreement with the President that corruption is the greatest impediment to Nigeria’s growth and development, the move was long overdue and will serve to rid the Bench of corrupt judges who have commoditised justice. For others, especially those in the legal profession, the action by the DSS was an abuse of power and due process sign-posting the authoritarian bend of the President, who has, on many occasions labelled the judiciary as his “main problem” in the fight against corruption. They accused the president of employing illegal and crude means to rid the country of corruption.

But our main concern in the whole saga is the usurpation of the powers of the National Judicial Council – a creation of the constitution and the principle body responsible for disciplining erring judges – by an overbearing executive that is seeking to discredit other arms of government and usurp their powers. Therein lies the real danger for our country and not the hullabaloo about the fight against corruption or riding the bench of corrupt judges.

While admitting that there is an obligation on the part of the government to rid the bench of corruption and to radically fight the vice of corruption in the country, the executive must realise that the constitution also provided for separation of powers among the three arms of government and provided for their independence while granting them the powers to check the excesses of the other arms. By directing the DSS to invade the houses of judges and arrest them without recourse to the National Judicial Council, which is constitutionally assigned the job of regulating the activities and disciplining erring judicial officers, the executive is clearly trying to emasculate the judiciary and render it incapable of performing its onerous task of delivering justice impartially and above all, of acting as a check on the awesome powers of the executive.

It is universally acknowledged that power corrupts and absolute power corrupts absolutely. History is replete with leaders who had sought absolute powers and have used them to pursue goals that are not in tandem with the public good. That is why democratic constitutions make adequate provisions for separation of powers amongst the arms or branches of government to prevent one arm, usually the executive from abusing its awesome powers.

The explanations provided by the DSS and the Presidency for the invasion are not convincing enough. This is moreso as evidence exists that the National Judicial Council has been investigating and disciplining judicial officers. It begs the question as to why the DSS and the Presidency had to use clearly illegal means to fight corruption in the judiciary. Pray then, how is the executive planning to prosecute the cases against the arrested judges? To complicate matters, most of the arrested judges have come out to complain that their arrests  and harassments are the result of their refusal to grant the requests of some All Progressive Party’s (APC) to influence some political cases in their favour.

Our sense is that there is no way the executive can successfully prosecute the war on corruption outside the ambit of the law. Indeed, the very act of disrespecting the provisions of the constitution is corruption itself and does not bode well for the country. We have said it severally that the root cause of corruption in the country is the weakness or even absence of institutions. The government cannot therefore claim to be fighting corruption by further destroying existing institutions when the best way to fight corruption is to build and strengthen institutions.