Mr. Jiti Ogunye, is a human rights activist and lawyer. In this interview, he explained how Saturday morning’s raid on the homes of some Supreme Court Justices and Federal High Court judges by the Directorate of State Services, DSS, will save the judiciary from self destruction.Excerpts:
By Bartholomew Madukwe
HAS the DSS any justification under the law to raid the homes of Supreme Court Justices and Federal High Court judges, as they did early Saturday morning?
Let us put this in perspective. In the ensuing debate as to whether there is any legal justification for the action taken by the SSS, State Security Service, now known as Directorate of State Security, DSS, there is a general agreement and common ground. This general agreement and common ground is the appreciation that Nigeria is swimming in the pit of corruption. And most importantly, corruption in the Nigerian society is also evident in the judiciary. All the Chief Justices of the Federation, since 1999, upon being sworn into office of attaining the elevated position of the Chief Justice of Nigeria, have tried to tackle corruption in the judiciary.
There is an acknowledgment, even at that apex level, that we have the problem of corruption in the judiciary. So nobody is denying that. The Chief Justices, since 1999, have been doing their best in the circumstances, to fight corruption on the bench. Compared to the legislative and the executive, the judiciary can still be rated best in regulatory and self disciplining body.
Once judges are found to have transgressed, they are offloaded from the bench. It is on record that none of the judges that had been sent off the bench has been prosecuted for criminal offences; corruption and abuse of office, engaging in money laundering are offences under the Criminal Code, EFCC Act, Money Laundering Act, and Independent Corrupt Practices Commission, ICPC Act. So, we then have an odd situation where judges that have been found to have committed criminal offences are only given administrative discipline and sanction.
The ultimate one being recommendation for dismissal, which is then accepted by the executive, as the judges alleged to have collected bribe are sent home; they are not charged to court for the money allegedly taken. It is like being asked to go home and enjoy the loot. Sadly, these few bad eggs in the judiciary are giving it a bad name to the system.
I tell people that you have hard working serious minded, incorruptible judges on the bench, they don’t have a life. They are sold to the job. They even work at odd hours, day and night, with the NJC breathing down their necks; determine the number of judgment they must deliver within a quarter.
In terms of their common performance evaluation, they have to be up to date. What the NJC, the Bar and Nigerians need to do is to isolate those bad eggs in the judiciary, denounce them, shame them, send them out of the bench, prosecute them and send them to jail. That was why I said we should keep this in perspective.
Some lawyers have argued that the DSS did wrong by invading the homes of these Justices and Judges. What is your reaction on this?
In figuring out whether what the DSS did wrong by invading the homes of justices and judges, we have to look at the law. The first law we have to look at to discover the mandate of the DSS is the National Security Agencies Act, Chapter N74, Volume 11, laws of the Federation of Nigeria 2004. And I refer to section2, Subsection 3, Paragraph A,B, C of that law, which provides for the powers of the SSS.
That Act was made during the military era as a decree became an Act of the National Assembly, by virtue of the 1999 Constitution when it came to force, provides for the SSS, DSS, Directorate of Military Intelligence (DMI), National Intelligence Agency that deals with external threats to Nigeria, just like the CIA is the SSS. Regarding the power of the SSS, we have three but very broad, with broad implications.
First, the SSS prevent and detect all crimes within Nigeria that threatens our national security. Second is that it shall also hold and preserve materials or classified documents etc. In addition to those two powers, the SSS shall also carry out responsibilities assigned to them either by the National Assembly or the President- as they deem fit.
In other words, anything the President deems fit to categorize as a threat to the national security would be given to the SSS as a responsibility. This law has not been amended to narrow its scope of operation, if it is deemed to be too open and broad. So that is there.
Some Nigerians have said the raid was supposed to be carried out by the EFCC or ICPC since it is a financial crime offence, what is your view on this?
The argument that the raid by the DSS was supposed to be the responsibility of the EFCC or ICPC is neither here nor there. Those bodies have been there all these while, so how many judges have been arrested and prosecuted by them?
The last time I checked when the EFCC even moved against a Senior Advocate of Nigeria, SAN, the Nigerian Bar Association, NBA, went to town to bring down the EFCC for having the temerity as it were to arrest a SAN. If EFCC should arrest a judge, what will happen? In my own judgment, the SSS, now DSS, acted within the provisions of the law.
Looking at the way and manner that the DSS carried out its raid on the justices and judges, is that lawful as well?
So many people have described the way and manner that the DSS carried out its raid on the justices and judges as mayhem, anarchy, a relapse to military dictatorship of 1984 when President Muhammadu Buhari was in power.
And the media on Sunday went to town with very terrible headlines, casting the situation as subversion of democracy, rule of law and war on the judiciary. They were using such words as “Abduction,” “Crazy Buhari Boys” but by Monday and Tuesday, the media had pulled back when they were confronted with more detail and information as to what happened.
Section 148 of the Criminal Justice Act provides that a Search Warrant obtained by the law enforcement agency or anybody can be executed at anytime- 1a.m., 2a.m., 3a.m., or any other time. There is no notion like ungodly hour as far as the execution of the Search Warrant is concerned.
Section 149 of the Administration of Criminal Justice Act, then says that if in the course of executing a Search Warrant, if the occupant or owner of the building refuses to allow the law enforcement agency or security agency to gain entry, the law enforcement agency as provided for under Section 9, 10, 12 and 13 of the Administration of Criminal Justice Act can use force to break down the door, tear the outer or inner door, tear the outer or inner window, to gain entry.
This is the language of the law that was made as at 2015. I didn’t make it. So, contrary to what some SANs and a section of NBA have said was said out of impulse. They are wrong, the DSS was right in its action.
Return for the search
If a Sting Operation is to be carried out, and the DSS said they have an intelligence or information that money was hidden in this premises, were people really thinking that those security agencies (Police, SSS, EFCC, ICPC) should do a letter of invitation or love letter to those persons that they have gathered information and will then fix a date to return for the search?
Even when you put the house under surveillance, those things will disappear, the evidence would have been tampered with. So what were some Nigerians thinking? The judges ought to be put on notice; the NJC ought to have been communicated. The Chief Judge ought to have been told that some judges are to be raided? If that was done, it will defeat the purpose of catching people red-handed. This is done all over the world.
So it is an internationally accepted modus operandi of security agents in dealing with this type of situation.
In any case, how does it become a difficult thing for a judge who has a police orderly, a judge who was screened by the SSS and given security clearance before he could become a judge, how does it become a problem for that judge to open the door when security agencies showed up- if that judge has nothing to hide?