Taming DSS and Judicial Corruption – By Emeka Nwadioke

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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; (c) xxxxxxxx (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. (e) xxxxxxxxx (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; (g) xxxxxxxxx (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.

·       Nwadioke is a Lagos based lawyer and Publicity Secreta

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