In these three series, Legal luminary Aare Afe Babalola SAN extensively addressed the legal issues on the controversial arrest of judges and judicial officers by the DSS. He traced the history and establishment as well as the powers of the DSS, the NJC and National Security generally.
DSS MIDNIGHT ARREST OF JUDGES: LEGAL ISSUES AND RECOMMENDATION
Aare Afe Babalola OFR (SAN) -9/11/16
In the early hours of Saturday, 8th October, 2016, Nigerians awoke to reports of the invasion of the houses of several judicial officers by officers of the State Security Service or Directorate of State Services (DSS).
In the course of the said invasions, the homes of the judges were searched and some of them arrested. It was also reported that the search led to the discovery of huge sums of money in local and foreign currency.
This development naturally attracted immense attention from the public. While some praised the development, viewing it as a step in the right direction by the current administration which had always made known its intention to tackle corruption, others condemned the action on the grounds that not only did the DSS lack the statutory powers to act as it did, but also that the raids amounted to a denigration of the judiciary as an institution.
While the DSS stuck to its narrative that it was compelled to act owing to the failure the National Judicial Council (NJC), the body saddled with the duty of enforcing discipline in the judiciary, to investigate reported cases of corruption within the judiciary, the NJC itself insisted that it was not subject to the supervision of any authority or individual. Not unsurprisingly, lawyers were themselves sharply divided with some arguing in favour of the conduct of the DSS while others condemned it.
DSS and statutory powers
On my part I issued a statement in which I expressed concern at the allegations made against the judicial officers while at the same time I expressed serious reservations about the conduct of the DSS particularly the effect of its actions on the independence of the judiciary. To put in proper perspective the views which I will proceed to state herein, I consider it pertinent to reproduce some parts of my public statement at that time:
“While it is true that a drastic situation may require equally drastic measures to curtail it, it is also true that two wrongs do not make a right…
“I must admit that I am shocked at the claims that huge amounts of money in local and foreign currencies were recovered from the homes of some of these Judges. If proven to be true, surely the Judges concerned must offer some explanation as to how they came to be in possession of such vast amounts of money. However, I am equally shocked at the manner in which the “raids” were carried out and the resultant negative publicity it has attracted to the judiciary and the legal profession as a whole. It is for these reasons, given my position in the legal profession to which I have belonged for about 53 years, that I offer my views on the sad events of Saturday the 8th of October 2016. As more details come to light, as they surely must, given the enormity of the situation, I will speak as the occasion might require.”
While the debate on the raids has since continued, I have noted that much of the discussion has, since the night of the event, gained political coloration. From both sides of the debate has emerged an unfortunate tendency to characterise anyone with an opposing view as either a supporter/beneficiary of corruption or a proponent of impunity in governance. Such a hardline stance is very unfortunate indeed and will only serve to discourage open and frank discussion of pertinent national issues without which no democracy can exist or thrive.
However as it cannot be denied that the incident of 8th October, 2016 threw up lots of legal issues, it is in the national interest that those issues be addressed, devoid of sentiments, from a legal standpoint. I state this for the following reasons:
- Ours is a country of laws, the existence and makeup of which is deeply rooted in the Constitution of the Federal Republic of Nigeria 1999 (As Amended).
- All persons involved or alleged to be involved in the events of 8th October, 2016 be they officials of the DSS, the accused Judges, the members of the NJC, Presidency etc are public officials who owe their offices to the provisions of the Constitution of the Federal Republic of Nigeria 1999 (As Amended), the sanctity of which they have also sworn to uphold.
It is settled that when men or groups of people come together to form a nation and thereby give up their individual identities and freedoms, they do so with the realization that they will be governed by certain laws and also the expectation that those laws will be strictly adhered to and implemented, without favour or bias by those in authority over them, be they appointed, selected or elected. Given the above, I will proceed to address some of the legal issues involved in the matter.
Were the investigations, invasions, searches and arrests within the core mandate of DSS as claimed?
After the raids, the DSS issued a statement which was signed and read by one Abdullahi Garba on behalf of the DG, SSS. It reads in part as follows:
“The Department of State Services, in the past few days, has embarked on series of special sting operations involving some Judges of the Supreme, Appeal and High Courts. The operations were based on allegations of corruptions and other acts of professional misconduct by a few of the suspected Judges.
The Service action is in line with its core mandate, as 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 amounts of money paid. The judges involved were invited, upon which due diligence was exhibited and their premises searched.”
By this statement, the DSS unequivocally admitted that its operations were based on:
- Allegations of corruption against the judges and
- Alleged acts of professional misconduct by the judges.
Powers of National Judicial Council
By law, who is empowered to investigate and deal with such matters? The answer can be found in Section 153(1)(i) & (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides that:
“(1) There shall be established for the Federation the following bodies, namely:
(i) National Judicial Council
(2) The composition and powers of each body established by subsection (1) of this section are as contained in Part 1 of the Third Schedule to this Constitution.”
The relevant portion of Part 1 of the 3rd Schedule to the Constitution reads:
“3rd Schedule Part 1
Federal Executive Bodies
Established by Section 153
“Para. 21. The National Judicial Council shall have power to –
(b) recommended to the President the removal from office of the Judicial officers specified in sub-paragraph (1) of this paragraph and to exercise disciplinary control over such officers;
(c) …… (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) … (f) … (g)… (h)… (i)…
The wordings of these provisions are clear and unambiguous. They leave no one in doubt that the intention of the drafters of the Constitution is that the NJC is the only body imbued with the vires, powers, jurisdiction and competence to investigate judicial officers for professional misconduct – the act which the DSS admitted it carried out.
History and evolution of the DSS
It is conceded that the DSS has statutory powers. But it is a creation of the law and must always act within the laws creating and empowering it. Unlike the NJC, it is not even a creation of the Constitution. It is a creation of the National Security Agencies Act.
The SSS began as a security service in a formal, organized manner with the establishment of the defunct ‘E’ Department of the Nigeria Police Force in 1948. The Department which was also referred to then as the Special Branch had the primary responsibility of procuring and disseminating intelligence of security matters in Nigeria to the relevant authorities.
The Special Branch was then a department in the Office of the Inspector-General of Police. After the 1976 coup which led to the murder of the then Head of State: General Murtala Mohammed, the Special Branch metamorphosed into the Nigerian Security Organization (NSO) in 1976 by virtue of Decree No. 16 of the same year.
The creation of the NSO reflected the desire of the Federal Government at the time to confront the exigencies of the time as represented by the intelligence challenges of the Civil War, the pursuit of several foreign policy commitments of the time and thirdly the challenge to security posed by the abortive coup of 1976.
The NSO, at inception, was expected to procure timely and relevant intelligence necessary to meet these challenges as well as other matters bordering on national security. The NSO Decree of 1976 represented a departure in the focus, organization and methods of intelligence procurement in Nigeria. Besides making the NSO an autonomous body having a life of its own distinct from the Nigeria Police Force, the Decree sought to professionalize the whole essence of intelligence procurement in Nigeria.
Essentially, the functions of the NSO was to ensure that government received early, accurate and properly analyzed intelligence regarding persons and organizations whose activities or intentions are capable of impinging on the security of the nation and the safety of its inhabitants.
In 1986, the re-organization of the NSO by the General Ibrahim BABANGIDA’s administration, through Decree No.19 of 5th June, 1986 led to the creation of three (3) agencies from the then NSO as follows:
(a) The State Security Service;
(b) The Defence Intelligence Service (DIS); and
(c) The National Intelligence Agency (NIA).
The NSO was renamed the State Security Service(SSS) and saddled with statutory roles as spelt out in the National Security Agencies (NSA) Decree No. 19 of 5th June, 1986 as follows:
“Section 1. Establishment of National Security Agencies There shall, for the effective conduct of national security, be established the following National Security Agencies, that is to say- the Defence Intelligence agency; 2. the National Intelligence Agency, the State Security Service.”
“Section 2 General duties of the National Security Agencies. … 2. …
1 The State Security Service shall be charged with responsibility for the prevention and detection within Nigeria of any crime against the internal security of Nigeria; the protection and preservation of all non-military classified matters concerning the internal security of Nigeria; and such other responsibilities affecting internal security within Nigeria as the National Assembly or the President, as the case may be, may deem necessary.
Culled from The Vanguard
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