The Orbit

October 16, 2016

The DSS arrest of judges


By Obi Nwakanma
By now, Nigerians have heard much, but certainly not all of the fallouts of last week’s brazen arrest of Federal judges, and three honorable judges of the Supreme Court by agents of the Department of State Security, DSS. These Judges were arrested for “corruption.” What makes this action unprecedented is that it has broken the mythology of the sacrosanct authority of the judge in Nigerian affairs. I emphasize the word “sacrosanct.” Nigerian Judiciary has long operated on the principle that judges live in the purity of Calpurnia, and in the established principle in English common law that judges cannot be questioned for corruption because to do that slanders the sovereign realm.

Judges protect and represent the sanctity and good order of the state. To subject them to indignity is to countermand the very foundation of the state itself. But with this government under President Buhari, such a claim of the sanctity and dignity of the Nigerian state is indefensible. For a president who accepted the gratuitous insult of another head of government that the nation he leads is “fantastically corrupt” and was unwilling to defend his country in the face of such capricious comment, the root of Nigeria’s evil is in its judiciary, and something had to be done about it.

This presumption is arguably the premise on which it seems the president gave assent to the use of the Department of State service, Nigeria’s domestic intelligence agency, to investigate and arrest serving judges, including Justices at the apex of Nigeria’s judicial totem pole, the Supreme Court; our court of constitutional reserve.

This is brazen and startling. Not even under the military dictatorships in Nigeria were judges arrested or detained. They were always under threat, but they were either docile, or repressed in other ways, not directly arrested or charged for their conducts. So, indeed, the current arrest of Nigerian judges by the DSS is unprecedented, and quite rightly inspired broad national outrage. On my part, I have been torn by two factors: as I have frequently argued, the missing link in the evolution of the Nigerian state and in the development of the rule of law in Nigeria is the judiciary. Justice is slow in Nigeria, and can be bought.



The ordinary Nigerian does not expect the protection of the courts because the courts have always functioned it often seems in the interests of two principles: the highest bidder, and for any government in power, and not for the constitutional charge to dispense justice, defend the charter of rights, and hold the state and the individual equally responsible in matters of law.

There are frequent allegations that many judges in the Nigerian court systems are corrupt and are like whores open to negotiation. Nigerians thus do not trust their courts, and because Nigerians do not trust the law to defend and offer them justice, they rely on alt-judicature. Rather than go to court for a traffic infringement, which would complicate their lives, they haggle and pay a bribe to the arresting policeman. Rather than go to court to resolve civil matters, they’d deploy the “law of Moses.” In this particular situation, the strong entrenches the convention of sheer brutal authority, so that Nigeria seems like a Hobbesian space, where the powerful is above the law, and man becomes a threat to man, and thus what the great Zik called “man’s inhumanity to man” becomes the central rule of the lawless state.

The weakness of the court and of justice has made Nigeria a significantly corrupt society, and in matters of elections for instance, there have been numerous cases of the perversion of justice at electoral tribunals because those with deeper pockets bribe the sense out of judges. These facts are all true.

President Buhari campaigned to bring corruption in Nigeria’s public life to an end. It is without question a herculean task, and it is clear that an institution that requires a cleansing of its Augean stables is the administration of justice in Nigeria where justice has been corrupted by corrupt judges. I am torn because the disenchanted in me should support the move to forcefully remove corrupt judges. I believe that the worst criminal in the world is the judge who accepts a bribe to pervert the course of justice, because what that judge does is to subvert not only the ethical foundations of the state but its security as well. When citizens can no longer trust their courts, they resort to “self-help justice.”

However, the rational in me, as I hope in most Nigerians should also understand the kind of perversion that comes with the fire-brigade method used by this government in dealing with corruption in the judiciary. The use of the DSS is a perversion of the order of the rule of law, and in actual fact is itself a profound form of corruption! Corruption is not just the embezzlement of state fund, or the acceptance of bribery to pervert justice, it includes the perverse use of the established instruments of state authority in the pursuit of a determined end. Buhari corrupts the system by deploying the DSS outside of the function for which it was established. This perversion of the state has been at the very crux of the destruction of institutional systems and the guidance which in turn has led to the corruption of established authority. There are two issues at stake here: one, the DG of the DSS has no authority to order an investigation, and effect the arrest of judges, including Justices of the Supreme Court.

Two, the DSS is not established under the Nigerian constitution as a “secret police.” Its principal task is to gather domestic intelligence against threats to national security. Nigeria faces two critical internal security problems: insurgency and cross-border terrorism, separatist agitation, and kidnapping. The key role of the DSS is to penetrate these subversive groups, prevent acts of terrorism before they occur, and offer protective service to the government and to citizens from the effects of espionage, sabotage, and subversion, using tools like surveillance and data analysis, and establishing special procedures for handling evidence which it obtains by assisting the police and other law enforcement agencies in Nigeria. But the DSS is not a Law enforcement agency.

It has no power of arrest. It reports threats to the President, and advises government departments and organizations on protective measures. It is a publicly accountable civilian intelligence agency, like all such agencies established by other nations, and it is not an arm of the Nigerian Police system, and it is, or ought strictly to be apolitical, and can therefore not be directed by the president, since its services should normally be scrutinized by a board represented by the Ministry of Internal Affairs, Members of Parliament on the National Security Committees of the Senate and the House, and senior judges. This board ought normally to establish its internal reviews protocol and operational guideline.

There is where the process have failed: the current protocol that gives the president direct supervision and control of the DSS is a dangerous protocol, and arises from a tradition of military absolutism from which the old National Security platform was created and instrumentalized. Its aim was never to uphold the rule of law and the defence of democracy. Its original mission was to protect the absolute authority of the Military ruler under military rule. Most of the top agents in this crucial agency today were recruited and trained under military rule, and have been oriented by the old mission of the agency which considers national security in the purely private terms and interests of the reigning executive authority.

There has been very little re-training and re-orientation at the top and middle levels of thinking in the DSS, and this led to the faux-pax of last weekend’s brazen, gestapo-style arrest of judges, which many Nigerians now see as both a witch-hunt of judges who are considered ungovernable by the current administration, and a constitutional overreach. Judges are not above the law, hardly. But they should be properly investigated by an authority mandated by law to do this, and their arrests with clear evidence properly handled.

The arrest of these judges failed to meet the barest minimum of constitutionality. I think this incident offers the National Assembly a chance to revisit the establishment of the DSS, and frame a new legislation under a new Security Services Act to guide its operations and oversight, because to permit the current situation threatens the democratic order and the security of the Nigerian state; because a very power-hungry president can appropriate the DSS and deploy it to a witch-hunt using any number of excuses and subvert democracy and the rule of law.