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)- 23/11/16
Does the Administration of Criminal Justice Act (ACJA) confers legitimacy on the conduct of the DSS? Furthermore it must be understood that the ACJA is not substantive law. It is actually procedural law. It was promulgated to make provision for criminal procedure in our Courts. Indeed the long title of the Act tells as much. Same reads:
“AN ACT TO MAKE PROVISIONS FOR THE ADMINISTRATION OF CRIMINAL JUSTICE AND FOR RELATED MATTERS IN THE COURTS OF THE FEDERAL CAPITAL TERRITORY AND OTHER COURTS IN NIGERIA, 2015.”
Section 493 of the ACJA then proceeds to provide for the repealing of the old criminal procedure laws applicable in the FCT and federal courts to wit: The Criminal Procedure Act, The Criminal Procedure (Northern States) Act and the Administration of Justice Commission Act.
ACJA merely makes provision for the procedure by which criminal justice is to be dispensed. It does not create any substantive powers or jurisdiction in favour of any law enforcement agency.
The issue of arrest is a procedural issue. Even a private citizen can arrest in several instances. The fact that the DSS and a private citizen can arrest based on the procedure provided in ACJA does not mean that they can go further to investigate offences for which they have arrested.
However, in tackling the menace of corruption, the law and due process must not be discarded. Some have argued that what is required to stop corruption is what they refer to as the Ghana example.
Arguing otherwise would mean that a private citizen, upon whom the ACJA has also conferred the power to arrest in some circumstances, can also purport to lawfully investigate and detect any crime or that an agency such as the Federal Road Safety Corps (FRSC), without recourse to its statutory mandates, could as well rely on the provisions of the ACJA to also invade the homes of judges, conduct searches, arrest the Judges all on the basis that it is empowered by the ACJA to conduct searches and make arrests!.
The ACJA does not give the DSS or any other agency powers of investigation or detection of any crime. The powers of an agency to prevent, detect or investigate any specie of crime are donated by the relevant establishment statute of that agency. If it were to be otherwise, then
Summary and conclusion
As I stated in my earlier release, it cannot be denied that corruption is rife in the country and requires urgent attention. In this respect the resolve of the current administration to tackle corruption headlong must be commended and supported by all Nigerians irrespective of political leaning, religious inclination, tribe or professional calling. However, in tackling the menace of corruption, the law and due process must not be discarded. Some have argued that what is required to stop corruption is what they refer to as the Ghana example. By this they refer majorly to that aspect of Ghana’s past when past and then current leaders thought to have contributed to a lot of the country’s problem were executed. Why any Nigerian who has witnessed the dark days of military rule in this country would advocate same as a panacea to our current problems is difficult to understand.
I am a firm believer in adherence to law and democratic ideals. I believe strongly that the fight against corruption can still be waged and perhaps even with more visible results by adherence to law and due process. I must mention here that when lawyers and those in the know refer to due process, all that we mean is that the laws and procedures which guarantee certain rights to all Nigeria and also ensure the fairness of all criminal trials should be observed with respect to everyone. Those laws do not mention any Nigerian by name, yet they provide an umbrella of protection for anyone who, given the facts of his case, can call them in aid. Therefore, when those laws are infringed with respect to any Nigerian, when they are disregarded with respect to any Nigerian, they lose their efficacy with respect to all Nigerians. It is also pertinent to
Culled from The Vanguard
Read Part 1 here
Read Part 2 here
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