Taming DSS and Judicial Corruption

Judicial corruption is a grievous menace to any society. It ought to be classified as a ‘crime against humanity.’ For lawyers who have been at the receiving end of judicial corruption, it is not difficult to see why they may readily support the midnight raids by Department of State Security (DSS) operatives on the residences of some judicial officers penultimate week. It is doubly frustrating when, convinced that one has a good case and having applied oneself to elucidate the fine points of the case, one finds that such efforts are sacrificed on the altar of nocturnal meetings where justice is bargained away like salt and pepper.

It was the inimitable Justice Chukwudifu Oputa (now deceased) who painted a graphic picture of the hazards posed by a corrupt judge thus: “…. No one should go to the Bench to amass wealth, for money corrupts and pollutes not only the channels of justice but also the very stream itself. It is a calamity to have a corrupt Judge. The passing away of a great Advocate does not pose such public danger as the appearance of a corrupt Judge on the Bench, for in the latter instance, the public interest is bound to suffer and elegant justice is mocked, debased, depreciated and auctioned. When justice is bought and sold, there is no more hope for society. What our society needs is an honest, trusted and trustworthy judiciary.”

It is therefore agreed that, of all species of corruption, judicial corruption ranks very high on the ladder of ignominy. If so, why then the hue and cry over the arrest of the affected judicial officers, including two justices of the Supreme Court?

A major reason is that stated by former Chief Justice of Nigeria, Hon. Justice Dahiru Musdapher when he said: “However, as I further pointed out, it is of equal importance that accusations of impropriety against judicial officers should not be made lightly. It must be appreciated that the integrity of the Judge and the judiciary is a sacred public trust that must be protected and upheld by all. Today, mere suspicions of impropriety emanating from unconfirmed rumours, together with foul innuendoes find ready spaces in our media without proper concern for the far reaching damage being done to not only the Judge in question but the entire institution of justice.”

Also crucial is the fact that law and order thrives on certainty and predictability. Our jurisprudence is founded on the need to reduce, and ultimately eliminate, arbitrariness in human affairs. The process is just as important as the outcomes.

Even more worrisome is that it is increasingly becoming difficult to keep track of the ‘anti-graft’ agencies. Aside from the Independent Corrupt Practices Commission (ICPC), the Economic and Financial Crimes Commission (EFCC) and the long-suffering Nigeria Police Force, the DSS has now joined the fray as a graft-bursting agency.

Section 2(3) of the National Security Agencies Act N74 LFN 2011 sets out the duties of the DSS, otherwise called the State Security Service (SSS) as follows: “The State Security Service shall be charged with responsibility for- (a) the prevention and detection within Nigeria of any crime against the internal security of Nigeria; (b) the protection and preservation of all non-military classified matters concerning the internal security of Nigeria; and (c) such other responsibilities affecting internal security within Nigeria as the National Assembly or the President, as the case may be, may deem necessary.

It has been stated that pursuant to Section 6 of the NSA Act, former Head of State, General Abdulsalami Abubakar in 1999 promulgated the State Security Service Instrument One of 1999. The Instrument enlarged the duties of the agency to include the prevention, detection and investigation of economic crimes of national security dimension, among other things. Having preceded the 1999 Constitution, the NSA Act has a saving provision in Section 315 (5)(c) of the Constitution. This is deemed to have conferred a constitutional flavor on the NSA Act.

In justifying the clampdown, the DSS claimed that it was “in line with its (DSS) core mandate,” adding that the action was “based on allegations of corruption and other acts of professional misconduct by a few of the suspected Judges.” The DSS also claimed that “we have been monitoring the expensive and luxurious lifestyle of some of the Judges as well as complaints from the concerned public over judgment obtained fraudulently and on the basis (of) amounts of money paid.” It is apparent that some of these claims do not add up. It is also asserted that even with a combined reading of the NSA Act and the Instrument One of 1999, it is difficult to see how judicial corruption is a “core mandate” of the DSS.

The DSS also referred to “complaints from the concerned public,” though it failed to name the complainants. Indeed, it was not until after the arrests that the Attorney-General of the Federation, Mr. Abubakar Malami (SAN) reportedly sent some petitions by CESNAC to DSS. It is clear that the raison d’etre of the DSS/SSS is the “internal security” of Nigeria. As NBA President, Mr. Abubakar Mahmoud (SAN) has observed, “The DSS must be restricted to its constitutional and statutory duties. Its core mandate is guaranteeing internal national security. It is not its duty to conduct police investigations or arraign and prosecute cases of corruption. It is not its responsibility to conduct sting operations on judges for corruption or professional misconduct in the middle of the night.”

Even more worrisome is that the era of media trials is still alive and well within our security agencies. Or how does one reconcile the wild assertion by the DSS Director-General, Mr. Lawan Daura that certain judgements were “obtained fraudulently and on the basis amounts of money paid.” And to think that the judicial officers are yet to be arraigned and that Section 36(5) guarantees a presumption of innocence to all citizens until proven guilty.

Further, in light of the current debacle, there have been spirited efforts to define “internal security” in very elastic terms, merely for the purpose of accommodating the apparent breach of mandate by the DSS/SSS.

There are clear disciplinary procedures set out by the Nigerian Constitution to deal with judicial officers who abuse their office through corrupt enrichment and sundry misfeasance. It needs no emphasis that the NSA Act cannot override the grundnorm, to wit the Constitution.

Part I of the Third Schedule to the Constitution provides that the Federal Judicial Service Commission shall (13)(b) “recommend to the National Judicial Council, the removal from office of the judicial officers specified in subparagraph (a) of this paragraph.”

Item 21 of the schedule also provides that “The National Judicial Council shall have power to – (b) “recommend to the President the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph and to exercise disciplinary control over such officers; (d) recommend to the Governors the removal from the office of the judicial officers in sub-paragraph (c) of this paragraph, and to exercise disciplinary control over such officers. (f) advise the President and Governors on any matter pertaining to the judiciary as may be referred to the Council by the President or the Governors; (i) deal with all other matters relating to broad issues of policy and administration.” Perhaps it bears repeating that all the judges arrested by the DSS are under the disciplinary radar of both the Federal Judicial Service Commission and the National Judicial Council (NJC).

Also, Rule 3(F)(1) of the Code of Conduct for Judicial Officers provides that “A Judicial Officer and members of his family shall neither ask for nor accept any gift, bequest, favour, or loan on account of anything done or omitted to be done by him in the discharge of his duties.” Article (iii) of the Preamble to the Code unequivocally states that “Violation of any of the rules contained in this Code shall constitute judicial misconduct or misbehaviour and may entail disciplinary action.”

It is contended that the allegations made by the DSS fall within the ambit of “judicial misconduct or misbehavior” for which the affected judicial officers should be proceeded against by the NJC, not the DSS, especially in light of Rule 3(F)(1) of the Code. It is only after they have been adjudged guilty and sanctioned by the NJC that the appropriate agency may step in to proceed against those found culpable of criminal breaches. Indeed, it will presently become apparent why this procedure is a no-brainer.

Assuming that the DSS proceeds, as promised, to arraign the affected judicial officers before the courts, they are bound to be granted bail (the DSS had granted them bail on self-recognisance) while the trials continue. During this period, there is no plausible reason why the judicial officers, having not been removed vide Section 292 (1)(b) of the Constitution, cannot continue to sit as judges in our hallowed temples of justice, even in the highest court of the land! Indeed, a time may yet come when litigants may be told that the court will not sit because the judge is facing trial or awaiting sentencing before another judge! How does this noxious scenario promote a “respected and respectable Judiciary” as envisaged by the Code? It would not seem that the Constitution contemplated this absurdity.

There is every reason to argue that the NJC should timeously dispose of petitions brought against judicial officers. Tardiness is not an option. Some have also argued for a reform of the NJC model to ensure its effectiveness. But a usurpation of the role of the NJC is also out of sync with the public policy imperatives of the current debacle, moreso given the antecedents of the DSS. Otherwise, as grievous as judicial corruption is, it would seem that combating Boko Haram insurgents, terrorists, kidnappers and pipeline vandals is more in sync with the core mandate of the DSS.

In light of the foregoing, there is a growing perception that the DSS is increasingly being deployed to chastise perceived enemies of the government. The reported invasion of the Akwa-Ibom Government House by DSS operatives and the cat-and-mouse game between DSS and Ekiti State legislators are still fresh in our memory. Instructively, the DSS has stated that some of the current spate of arrests were linked to “judgment obtained fraudulently,” moreso with the arrest of Justice Muazu Pindiga, chairman of the Rivers State Election Petition Tribunal.

As one commentator has poignantly observed, “One thing is of note: It seems anybody who gives judgment against Mr. President or his allies (agencies inclusive) are corrupt and henceforth once the govt (sic) takes you to court you must be convicted or the judge is corrupt.” Justices Adeniyi Ademola who are handling the case of former National Security Adviser Sambo Dasuki and Nnamdi Dimgba who had berated the DSS for disobeying his earlier rulings are said to be victims of this brand of anti-graft war. Indeed, it is reported that not even the observation by Justice Dimgba that his name was not on the Search Warrant could deter the DSS operatives. What is more, President Muhammadu Buhari had lamented his unpleasant brushes with Nigeria’s justice sector. Could the DSS have latched on the recommendation by the NJC that Mr. Kabiru Auta be dismissed and promoted to pounce on its perceived enemies?

Hopefully, the days ahead will bring clarity to this macabre dance.

EMEKA NWADIOKE

Nwadioke is a Lagos based lawyer and Publicity Secretary of NBA Lagos Branch.