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Legal, moral sides of DSS clampdown on judges — Oyesanya, SAN

Mr Adekunle Oyesanya was conferred with the rank of Senior Advocate of Nigeria (SAN) on September 11, 2012. He was a managing partner at Bankole Oki, Oyesanya & Company, Lagos. In this interview, he spoke on why the Department of State Services, DSS, is an illegal body, corruption in the judiciary and NJC’s ability to stem judicial corruption. Excerpts:

THERE have been divided opinions on the rightness or otherwise of the DSS raid on the homes of some judges recently. What is your view on this?

There is no doubt that the modus operandi of the DSS was wrong. When this thing happened, I studied the reactions of some people. A lot of people reacted from different angles and for different motives. Some people’s reaction was not rational but because they have been victims of judicial corruption, and I give it to them. Anybody that has been a victim of a judge that is corrupt and this kind of thing happens, of course, such person will react from that point.

Some people just reacted the way they did because they lost a case or some cases before these judges, not that they have any evidence that the judges are corrupt.

Relatives of  the judges

Adekunle Oyesanya modus operandi of the DSS was wrong
Adekunle Oyesanya modus operandi of the DSS was wrong

Also, some people condemned the raid on these judges’ homes because they are friends or relatives of the judges.

In the whole process, we are losing sight of the major issues and we need to be objective in looking at them. However, if these issues are taken to court it will be good.

Speaking for myself, let me lead with the premise that any fair person, especially with the way the country is now, in terms of economic recession, must agree that the government must do everything to tackle corruption. Like the President had said, “If we don’t kill corruption, corruption will kill us.” It will affect everybody.

Now, let us forget the fact that the victims of this DSS raid are judges. But in a country where security is not guaranteed, how can somebody go to the home of even an average Nigerian at 1 a.m, carrying guns? It is normal that the person’s first instinct would be to protect himself, thinking they were armed robbers.

Some people have said the DSS was right, quoting the Administration of Criminal Justice  Act  (ACJN) 2015 that  allows search at any day and time. That is not the issue! There is legality on this issue and morality of it. And that is what we have to look at.

Does the DSS have power to take an action against a judicial officer without the NJC approval?

On the legality aspect of the issue, the first question is whether the Search Warrant the DSS brought was a legal one. How can you have Search Warrant for Mr A and you are going to the home of Mr B? They went to the residence of a Federal High Court judge, Justice Nnamdi  Dimgba, and when he asked for their Search Warrant, the name on it was not his name. Meanwhile, they (DSS) had assaulted the man and had beaten up his nephew, from what we heard. The reason for such mistake was simply because they went at an ungodly hour. If they had gone during the day, they would have seen the number of the house that they were going. Again, if the Search Warrant was issued, is it the job of the DSS?

From your knowledge of the law, the fact that SSS metamorphosed to DSS, does it make it a legal body?

No! If the law set up a body, it is the same law that must change that body. It must pass through the parliament. The National Assembly makes a law. Let us look at the example of FOI Act. If the National Assembly made that law and creates a body known as Information Department (ID), then somebody comes and changes it to Public Information Department (PID), and they keep on operating under that name when the extant law is still there. As a matter of fact, if the DSS has been suing in that name, I believe that is wrong. For the name to change, you must go through the same law that set it up. Truly, if you look at the Act that set up the SSS, there is no mention of its changing the name to DSS by some administrative engineering. It is not wrong, but when the body begins to carry out functions known to the Police, EFCC and ICPC, this issue will come up.

With this issue of corruption in the judiciary, do you still see judges as representatives of God?

Yes, judges are special human beings because they sit in judgement over others. They are almost representatives of God. That is why I said that judges should be held to a higher standard than other individuals. When they err against the law, their punishment should be three times than what an individual should get for the same offence.  Beyond them, there is no other place for you to go. Supreme Court Justices pronouncements can make or mar an individual.

Are there other ways which corruption in the judiciary can be fought and results achieved, if not by the mode employed by the DSS?

You don’t treat the judicial arm of government with disrespect; they should be treated with a lot of respect because they are a special arm of government. This country’s democracy is standing on a tripod, which are the Judiciary, Executive and Legislature.

Standing on  a tripod

If there is a coup, the army would silence the Executive and impose themselves. They sack the legislature but they don’t sack the judiciary because they need it to interpret their Decree and lawyers to write same. That is how important the judicial arm of government is. So, when you undermine that arm of government with this kind of behaviour, you undermine the whole system. If you allow the society to lose faith in the judiciary, it will become a state of where the might is right.

The Senate President, Dr. Bukola Saraki, was  charged before the Code of Conduct Tribunal. Does this not suggest that nobody will be spared in this administration’s fight against corruption?

Some people have said that when members of the executive were arrested did anybody shout? The National Assembly (NASS) members were arrested, did anybody shout? But has any of the National Assembly members’ home been raided at midnight? No! They were invited and they came to EFCC. Senate President, Dr. Bukola Saraki, was charged at the Code of Conduct Tribunal, EFCC didn’t go to his home at midnight. They invited him and charged him. So, how can someone now want to justify the DSS raid on judges’ homes? Judges are special people, not because they are above the law but the kind of job that they do.

It is disheartening seeing senior lawyers support this kind of impunity. This government, at inception made it clear it would not tolerate impunity. We should be objective and look at the future of this country and posterity. Things must be done properly. There is no alternative to the rule of law.

What if it turns out at the end of the day that these judges are corrupt, how do you think amendments can be made?

Some damages are irreparable. Those corrupt in the judiciary are just a few of the judges, but then you end up saying that the judiciary is corrupt.

Tolerating  impunity

It is a dangerous thing, which is not good.

But do you see the raid as a revenge as claimed by two of the judges?

I know Justice Nnamdi Dimgba very well.  He is not somebody that will speak flippantly. However, we must as well allow the DSS to explain their own part of the story. Justice Dimgba had made an order against the DSS that they refused to obey. He had the chance of committing one of them to prison for contempt but he chose not to do that. Then he decided not to hear any of their cases, which he said was why they are after him. He may be right or wrong. When he was made a judge, I called him and told him that he is a kind of judge that this country needs.

I also know Justice Adeniyi Ademola very well. He has a good pedigree. If he is saying the DSS was after him because he gave Dasuki bail, then they have to explain. But what I know of these two gentlemen, I don’t know them as people who talk flippantly or carelessly. It is for the other side to debunk those allegations.

Some lawyers have argued that the NJC is not doing enough to stem judicial corruption. What is your take on this?

The constitutional power that set up the NJC is very clear. When the NJC gets petition against a judge, it investigates it and recommends that the judge be sacked, if guilty. Is corruption on the part of judges not misconduct? It is a matter of due process. The people at the NJC are eminent jurists. They are people who have been trained all their lives, so they know what they are doing.

To me, the NJC is strictly acting in line with the rule of law. That is what is helping countries like America and Britain.

Political  history

If you look at their political history, you will see that they are where they are today because they made sure that what they do is by due process. The Americans will tell you that government must be according to law, not according to man. They built institutions that for years still follow due process.

I don’t think it is right for any anti-graft agency to invite a judge to appear before it for questioning over alleged corruption, whereas it is the same judge who delivers judgement in their matter. For God’s sake, let us follow due process, in as much as I agree that if we do not kill corruption it will kill us.

NJC published its deliberation on petitions the DSS sent to it. From the stand-point of NJC, it is not true they have not been dealing with petitions sent to it by the DSS. In the case of Justice Ademola, the petition  was not supported by a  verifying affidavit  deposed to by the DSS, as required by the NJC. The reason for the verifying affidavit  is that they want to be sure that the petition is not a fictitious one.

There are people who are professionals in writing petitions and they collect money for it. By that verifying affidavit, if they find out that a petition is fictitious the petitioner can be charged for perjury. It is a way of regulating petitions. The DSS did not bring it back till two months later. When the DSS brought it, the NJC started working on it, following due process. It is not martial law that you sit in the morning and give judgement in the evening.  The problem with some of the security agencies sometimes is that they want to be a judge in their own cause. We have two branches in law, “Nemo judex in causa sua” (no-one should be a judge in his own cause) and “Audi alteram partem” (listen to the other side).


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