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DSS arrest of Judges: What a Peculiar mess

By Awa Kalu, SAN

THE events of the past few days have brought to the fore, what many public administrators(including the rather astute ones) have not truly come to terms with, it is this; that the constitution of the Federal Republic of Nigeria, 1999,as amended, creates three arms of government- the legislature, the Executive and the Judiciary; that in a traditional sense, the Legislative, and the Executive are presumed to be “stronger” than the judiciary and for which reason, the judiciary is said to have “neither sword nor purse”.

justice-nigeriaDecidedly, just as the female is said to be ‘the weaker sex’ (rightly or wrongly) the Judiciary is characterized as the weaker of the three branches. However, just as the ‘stronger’ gender has to persuade, woo, coax, cajole the weaker gender to do its bidding, so also must the stronger branches do all that can reasonably be done to ‘carry the Judiciary along’.

In established democracies, the idea of carrying the Judiciary along, even in a literary sense, merely warrants that there must be a very well grounded institutional and constitutional framework for safeguarding the independence of the Judiciary.

In that connection, the appointment, promotion, tenure, salaries, emoluments and arrangements of the welfare of judiciary officers as well as the judiciary is carefully spelt out and sustained.

Settling of disputes

More importantly, the method and procedure for the removal of judicial officers is very well spelt out. As Professor Nwabueze SAN, pointed out a long time ago (Judicialism in commonwealth Africa, 1977), “There is a certain amount of looseness in the use of the word ‘Judiciary” in its strict meaning it refers to the ‘Judges of a state collectively; but it is often(loosely) used interchangeably with ‘Judicature’, a wider term embracing both the institution(the Courts) and the persons ( the Judges) who compose it… “It is to Judges collectively that the word Judiciary refers”.

There can be no dispute that the courts exist for no other purpose than the settling of disputes that is, the due administration of justice. For this reason, Henry Sedgwick has argued that “the importance of the judiciary in prejudiced construction is rather pungent than prominent.

On the one hand, in popular discussion of forms and changes of government, the judicial organ often drops out of sight; on the other hand, in determining a nations rank in political construction, no test is more constructive than the degree in which justice as defined by the law, is actually realized in its judicial administration, both as between private citizens and the members of the government’.

Relying on Sedgwick, Harold Laski (in A Grammar of Politics) holds that “no man can overestimate the importance of mechanism of justice… when we know how a Nation-State dispenses justice, we know with some exactness the moral character to which it can pretend”.

The courts are therefore often used as a mirror to determine the pulse of the nation in their dispute settlement function. Disputes may arise from trade or commerce, contractual disappointment or even inter-personal relationships.

As already hinted by Sedgwick, disputes may also arise from the discharge of huge responsibilities of Government between the Federal government and a State or States or between States or between an individual and any of the governments in the Federation recognized by the constitution.

Although such disputes maybe disposed of formally or informally, very often, more complicated disputes are resolved in a court of law or through such other body, as may have lawful authority to render a binding decision.

In this country, a binding decision may arise from all kinds of disputes-criminal trials, commercial disagreements, pure civil matters and election disputes which now predominate litigation in this milieu. The failure of our system to find an alternative means of resolving election matters has brought dire consequences to Judicial administration of justice. An election under our laws must result in the filling of a vacancy in an elective office under our constitution.

The level of tension generated by an election always depends on the office itself. Accordingly, a presidential election generates far more tension than heat than an election into the National Assembly. Similarly, a gubernatorial election has more far reaching consequences than one into the State House of Assembly.

For these reasons and knowing the perquisites which follow victory, a discerning politician is expected and indexes required, to do all that is possible ( including what seems impossible) in order to not only win the election but to preserve his victory through the Judicial process.

The winning mentality has brought us where we are. An electoral victory or indeed defeat, results in the adoption of measures designed to preserve the victory (for the victor) or to overturn it( in the case of the loser). What led to the widespread allegations of corruption in the judicial process is nothing but the high stakes arising from pre-election and post-election disputes.

Out of concern for the sanctity of the electoral process, the Presidency recently constituted a body to study the totality of our electoral system and to offer recommendations for an effective and enduring reform. Meanwhile, what has resulted from our imperfect electoral process is a winner-takes-all mentality which ultimately, corrupts not only the electoral process itself, but the law and the Judiciary.

Upsurge in corruption

There have been rumours of large sums of money being offered to Judges either directly or through innumerable-go-between. For this reason, the President himself and the Economic and Financial Crimes Commission (EFCC) have placed the upsurge in corruption and economic crimes in the plate of lawyers and judiciary.

Rather uncharitably, the EFCC through its spokesman alleged that the Nigerian Bar Association is populated by “Rogues and Vultures”.

Let us for purposes of argument permit that there are rogues and vultures not only at the Bar but in the Judiciary. The question is, whether every rogue must be met with ultimate and overwhelming force and whether vultures must be killed whenever they circle any corpse or carcass? Does our legal system not provide for measures which match international best practices in combating corruption, economic and financial crimes?

Obviously, on account of our democratic credentials (perfect or imperfect) , the seeds for the pre-eminence of the rule of law are mightily enshrined in our extant constitution. To that extent, any attempt to exterminate corruption which accommodates rough tactics must in the end be counterproductive.

What this brings us to is the extreme measures which were deployed by the DSS for the purpose of arresting several Judges of the Superior Court of record on allegation of corruption. After a rather heavy assault on their individual premises, all the Judges are said to have been released and are presently being systematically investigated at this time.

Eventually, they will be arraigned before their learned brethren. How will the DSS arraign them? Will they choose the judges? Will they direct the proceedings? Will they determine the outcome/ if so, will they write the judgments?

Civilized organization

Obviously, the DSS is a civilized organization and will be deemed to know that in the long run, interference with due administration of justice comes at very great cost. Not even dictators (which we gladly don’t have) have succeeded in exterminating the judiciary. The abiding lesson is that a sustainable fight against corruption starts with careful planning and patient execution of such plans.

If you sow to the wind, you must reap the whirlwind. Consequently, our law enforcement agencies must know that insipient corruption is not fought with impatience but methodically end with the cooperation of other relevant agencies.

This being a newspaper article, it is not possible to dwell on the fundamental flaws in the raid on highly placed Judicial officers. All that can be done now is to draw the attention of all those charged with the enforcement of our laws to the immortal words of lord Atkin in Liversidge V. Anderson, (1942) AC 206,244 to the effect that…” In this country, amid the clash of arms, the laws are not silent.

They may be changed, but they speak the same language in war and in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law”.

Guided by the circumstances which have stimulated debate on the propriety or otherwise of the manner in which high level Judges were arrested, the following points must be noted, namely; corruption and particularly Judicial corruption is condemnable and cannot be condoned; the rule of law cannot be subverted and constitutional and statutory provisions which prevent abuse of power of any sort must be respected. Overall, in the fight against corruption, we must all be circumspect, careful not to throw the baby away with the bath water.

The judiciary must be treated delicately lest enthusiasm turns to irreversible cracks in the columns structured over the years for the maintenance of equilibrium in society. To this end, the Nigerian Bar Association, the Chief Justice of Nigeria, the National Assembly as well as civil society organizations, have condemned the way the judges wer arrested. That should be sufficient to lead to the conclusion that two wrongs cannot make a right.

In the words of a notable first republic politician, what has transpired is a ‘peculiar mess’.


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