Going by the provisions of paragraphs (a) and (b) supra, it is apparent that the SSS stricto sensu ( in the strict sense) has no power to arrest judicial officers for alleged economic and financial crimes. However, a dispassionate attention should be paid to the wordings and purport of paragraph (c) above. Clearly, that provision (paragraph C) gives the President the power to enlarge the scope of responsibilities of the SSS relating to the internal security within Nigeria. Section 6 of the Act goes further to empower the President to issue an Instrument, a subsidiary legislation, in the manner the SSS should exercise its powers, etc.
In exercise of the power in Sections 3 and 6 of the National Security Agencies Act 1986, former Head of State, General Abdusalam Abubakar in 1999 promulgated the State Security Service Instrument One of 1999. By virtue of that Instrument, the responsibilities of the SSS was extended to include the prevention, detection and investigation of economic crimes of national security dimension, among other things. It is important to emphasize that the National Security Agencies Act has a special constitutional flavour being one of the four federal enactments listed in Section 315 (5) of the Constitution. The consequence is that it cannot be altered like ordinary Acts of the National Assembly. It has the same alteration procedure like the Constitution as laid down in Section 9 (2) of the Constitution.
According to the SSS, the affected judicial officers were arrested based on allegations of corrupt practices and professional misconduct. The SSS in a statement said that raw cash of different denominations, in both local and foreign currencies, assets worth millions of Naira and documents affirming "unholy acts of these Judges" have been uncovered through a sting operation. The summary of cash allegedly recovered during the "raids" conducted in the homes of the Judges was given as follows: Naira - N93,558,000.00; Dollars - $530,087; Pounds - £25,970 and Euro - €5,680.
The question is, does the grave allegations levelled against the Judges and the alleged offences committed by them constitute "economic crimes of national security dimension" to bring same within the purview of the additional powers of the SSS pursuant to Instrument One of 1999?
It is advisable for us to examine the role of judicial officers in nation building. A corrupt judge is not only a threat to justice and the rule of law but to the society and the nation. Judges are by their calling empowered to make binding decisions on behalf of the rest of the society. When judgments are obtained fraudulently, the society and the nation are endangered. A corrupt judge is more dangerous than a kidnapper or an armed robber. The worst form of corruption is judicial corruption.
Though the Economic and Financial Crimes Commission (EFCC) is the specialised and coordinating agency for the detection, prevention and prosecution of economic and financial crimes, economic crimes committed by a judicial officer is far more serious and damaging than those of other categories of persons and there is some wisdom is categorizing same as "economic crimes of national security dimension" for which the SSS can act upon.
On the manner the searches and arrests were conducted, I concede that the SSS acted in a rather brash and indecorous manner. However, facts are sacred and the law should be separated from sentiments. It is reported that the SSS obtained both search and arrest warrants. What is in dispute is whether the warrants covered all the affected judicial officers and the somewhat "undemocratic" manner they were executed, particularly the time.
The relevant principal law on the issuance of a search/arrest warrant is the Administration of Criminal Justice Act 2015 (ACJA). Part 18 of the ACJA is devoted to search warrants, Section 144 thereof allows for the issuance of a search warrant on any house. The warrant may also authorize the officer or other person to arrest the occupier of the house or place where any incriminating item or thing is found during the search. Where this is specified in the search warrant, there would be no need to obtain an arrest warrant separately. By Section 146 of the ACJA, a search warrant shall be under the hand of a Judge, Magistrate or Justice of the Peace issuing it and shall remain in force until it is executed or cancelled by the court which has granted it.
One important provision under Part 18 of the ACJA that those criticizing the SSS should note is Section 148. It states unequivocally thus:
"A search warrant may be issued and executed at any time on any day, including a Sunday or Public Holiday."
However, under Section 151 of the ACJA, a search warrant cannot be executed outside the jurisdiction of the court or Justice of the Peace issuing it except with the consent of the court within whose jurisdiction the search is to be made. It is doubtful whether the SSS complied with this requirement before embarking on the search of the houses of some of the judges located outside the Federal Capital Territory, Abuja where the search warrant must have been issued.
It has been argued by some lawyers, including some Senior Advocates of Nigeria (SANs) that the ACJA does not apply throughout the federation and that the SSS was bound to follow the provisions of the enabling procedural laws in the States where they executed the search, especially as it pertains to the time of execution of the search warrants. This argument with respect is misleading.
Under Section 111 of the repealed Criminal Procedure Act Cap. C41 LFN 2004, the time for executing a search warrant in the South was between the hours of five o'clock in the forenoon and eight o'clock at night of any day of the week, including Sundays but the Magistrate had the power to direct otherwise. The repealed Criminal Procedure (Northern States) Act Cap. C42 LFN 2004, was however silent on the time. Both Acts have now been repealed by Section 493 of the ACJA 2015 and are no longer laws in Nigeria. Section 2 of the ACJA makes the ACJA applicable to criminal trials for offences created by an Act of the National Assembly, like economic and financial crimes, and to other offences punishable in the FCT, it is the ACJA and not the various laws of the States where the "raids" were conducted that governs the procedure adopted by the SSS. Accordingly, it is misleading for anyone to suggest that the SSS was wrong to have executed the search warrant(s) at night.
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 access 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 access 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.
Four, is illegally obtained evidence admissible in law? In other words, where evidence is recovered in contravention of the procedure for the search of houses and places, will the court admit same?
Every lawyer in this country that is worth his salt knows the answer to this question. The answer is YES - illegally obtained evidence is admissible. The Supreme Court held so in unmistakable terms right from 1968 in the case of Musa Sadau & Anor v. The State (1968) NMLR 208. Also in Kuruma V. R. (1955)1 All ER 236 at 239-240, the Privy Council stated, inter alia, thus:
"The test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is admissible.....the court is not concerned with how the evidence was obtained".
It is an elementary rule of evidence that what determines admissibility is relevance and not how the evidence was procured. See Section 1 of the Evidence Act 2011 and the cases of Torti v. Ukpabi (1984) 1 SCNLR 214 AT 236 - 237 and 239 24O and Lasun v. Awoyemi (2009) 16 NWLR (Pt.1168) 513 at 553.
Accordingly, the evidence allegedly recovered from the houses of the judges are admissible in law whether search warrants were obtained or not or properly executed or not. The court will still go ahead to admit the evidence irrespective of protestations against its illegality. This may not sound comforting, but that is the law.
By way of concluding remarks, I will like to make some points clear. The Judiciary is a sacred institution that should not be desecrated by any person. However, there is no sacredness in corruption. Judges must at all times be treated with decency and respect befitting of their office but corrupt judges should be identified and treated like other criminals in the society. Nigeria is blessed with some of the best judicial brains that can be found anywhere in the world, but the nefarious activities of the bad eggs on the Bench should never be tolerated under any guise.
Judges are not above the law.
Like other public servants, judges in Nigeria are paid in Naira, not in Dollars, Pounds, Euro or Cedis. Judges are not Bureau De Change operators and are not permitted to engage in business adventures. Therefore, the Nigerian people with whose taxes and resources the Judiciary is funded deserves to know how their Lordships came about the mind-blowing hard currencies found in their homes? The public deserves to know how their Lordships came about the assets allegedly traced to them. Judges who are living above their means should be able to answer some questions from the law enforcement agencies.
Their Lordships are presumed innocent until proved guilty and they should be given a fair trial and impartial hearing.
Instead of threatening the President, the Nigerian Bar Association (NBA) should tell us what they have done about the recent brutal murder of their member in Rivers State, Mr. Ken Atsuwete? Where was the NBA when a High Court Judge was assaulted in open court in Ekiti State by political thugs led by a governor? Why did the NBA not declare a state of emergency on the judiciary when Justice Ayo Isa Salami was humiliated and disgraced out of the Bench by the administration of Goodluck Jonathan despite the NJC's recommendation that he should be reinstated? What has the NBA done to Mr. Ricky Tarfa, SAN for allegedly bribing judges? Whose interest is the NBA fighting for?
Records have shown that judges in other jurisdictions, including the United States, have been arrested, prosecuted and jailed for corruption and other criminal conducts. Ghana recently purged its judiciary. If this is the time to uproot the pervasive cancer of corruption in the Nigerian Judiciary it is a welcome development and should be supported. Without checks and balances, the doctrine of separation of powers is useless and unworkable.
We cannot have different standards for the rule of law; one for the influential and another for the poor or one for the judges and another for the rest of us.
Thank you.
Inibehe Effiong is a Legal Practitioner and Convener of the Coalition of Human Rights Defenders (COHRD) and can be reached at:inibehe.effiong@gmail.com |
