by Ugochukwu Nnamdi Ukamba

It bears restating that, save for the President, Vice-President, Governors and Deputy Governors who are immune from arrest and criminal prosecution during the term of their office, there is nothing in the constitution or any other enactment that remotely suggest that a judicial officer, who is suspected of committing a crime, cannot be arrested by investigating authorities and prosecuted.

 

I had written this immediately after the NJC press release and decided against publishing it principally on the ground that I do not have the energy to engage in online back and forth that I knew would ensue seeing that the opinion represents a very minute minority perspective on the issue.

I decided to publish it because, compared to the expected backlash, it is better to have my opinion on this point in the open because I believe that when we come full cycle, the position taken by the NJC would come back to haunt us. When this happens, I want to be able to point to this and say ‘I said so’.

It is a long read and if you are allergic to contrary minority opinions, it is best you refrain from reading at all. However, if you are curious, the summary is that I still maintain that:

(a) The DSS acted within the law in carrying out their actions and

(b) the NJC, in a bid to save face, has taken a position that is not supported by our laws and would set a dangerous precedent!

Here we go and (un)happy reading!

I have read the press release of the National Judicial Council (NJC) on the recent invasion of the residences and arrest of judicial officers by the Department of State Services (DSS). The key take away from the NJC’s position is that it considers the arrest of some serving and suspended judicial officers by the DSS a “threat to the independence of the judiciary, which portends great danger to our democracy and a clear attempt by the DSS to humiliate, intimidate, denigrate and cow the judiciary”

Reading the press release, one gets the sense that the release appears to be premised on two cardinal points –that the DSS actions ran afoul of extant provisions of our country’s law and that it is the sole prerogative of the NJC to decide what punishment ought to be meted to a judge for breach of our laws. This premise is both erroneous and dangerous and, in any event, do not represent the true position of our laws.

For a body that is made up of the top echelon of the judiciary and very respected senior lawyers, it is surprising that in condemning the actions of the DSS as “a denigration of the entire judiciary”, the NJC has failed to specifically identify the particular provisions of our law that the DSS allegedly breached but has merely relied on rhetoric in condemning the act. It would have been helpful if the NJC had clearly articulated the provisions of the law that was infringed upon.

The NJC was however kind enough to make reference to some provisions of the constitution as the platform upon which its press release stands. Let us examine those provisions to ascertain if, according to the NJC, the actions of the DSS amounts to a conduct that “portends great danger to our democracy”.

Section 153 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (“CFRN”) establishes the NJC and several other bodies including the Federal Character Commission, National Security Council, Nigeria Police Council and Police Service Council just to mention a few. It is instructive to note that the heading of this particular section clearly says “Establishment of Certain Federal Executive Bodies”. The import of this is that the NJC and all the other bodies listed in that section are actually executive bodies and whatever action they take is taken in an executive capacity not a judicial capacity.

Section 158(1) of the CFRN provides that

“In exercising its power to make appointments or to exercise disciplinary control over persons, the Code of Conduct Bureau, the National Judicial Council, the Federal Civil Service Commission, the Federal Judicial Service Commission, the Revenue Mobilisation and Fiscal Commission, the Federal Character Commission, and the Independent National Electoral Commission shall not be subject to the direction or control of any other authority or person.”

The emphasis in this section is that the NJC and all other bodies listed therein shall not be subject to the direction or control of any other authority or person in exercising its power to make appointment or exercise disciplinary control of persons within its purview. There is nothing in that section that confers on the NJC or any of the bodies listed therein power in respect of criminal offences.

It would appear that the NJC’s construction of this provision is that the section confers on it jurisdiction, to the exclusion of any other person, to decide and determine the punishment to be meted out to a judicial officer –even if that conduct amounted to a crime. This opinion is fortified by paragraph 8.6 of the press release where the NJC admitted that the name of Hon. Justice Kabiru Auta of the Kano State High Court who was dismissed by the NJC for “corrupt practices” was forwarded by the NJC to the AIG Zone 1 for prosecution. This suggests that, in the NJC’s opinion, the decision whether a judicial officer should be tried for a crime rests upon it and where it decides not to press for a criminal trial, its decision cannot be questioned.

It bears restating that, save for the President, Vice-President, Governors and Deputy Governors who are immune from arrest and criminal prosecution during the term of their office, there is nothing in the constitution or any other enactment that remotely suggest that a judicial officer, who is suspected of committing a crime, cannot be arrested by investigating authorities and prosecuted.

It is conceded that to the extent that a judge’s conduct amounts to misconduct, it is only the NJC, by virtue of section 158(1) of the CFRN, that can discipline or sanction the said judge. However, where the conduct amounts both to a crime and misconduct, the NJC cannot, as they appear to suggest in the press release, arrogate the power to decide what would happen to the criminal element of the judge’s conduct. If the constitution and our criminal legislations intended that a judge would be immune from criminal prosecution or arrest upon committing a crime, the constitution would have expressly so provided. Having not done so, the NJC is without powers to imply that. Again, there is nothing in our laws that supports the proposition that a judicial officer must, first, be sanctioned by the NJC before criminal investigation and prosecution can be commenced against them by the relevant government agencies.

If we were to abide by the NJC’s construction of section 158(1) of the CFRN, we would also extend the argument to say that all other bodies listed in the said section are also entitled to the benefit of the argument that the NJC has made. In essence, the Federal Character Commission, Independent National Electoral Commission, the Revenue Mobilisation and Fiscal Commission and the Code of Conduct Bureau would be within their rights to argue that the constitution has “unequivocally provided for [their] independence vis-à-vis directing or controlling it by any authority or persons while exercising its power”. This construction, with the greatest respect, portends grave danger to our democracy because bodies, whose functions are, at best, administrative would confer on themselves powers to determine what happens when a person within their purview commits a crime.

A consideration of the allegations against some of the judges would throw more light on the actions of the DSS and the danger of the NJC’s position. The NJC, in paragraphs 8.1 and 8.2, averred that it did not receive any petition from the DSS in respect of the allegations against their Lordships Sylvester Ngwuta and Inyang Okoro. I do not want to dwell on conjectures so I will refrain from commenting on the propriety or otherwise of the arrest of their Lordships by the DSS.

The NJC, at paragraph 8.3 of the press release, admitted that His Lordship, Hon. Justice Muhammed Ladan Tsamiya of the Court of Appeal demanded the sum of N200,000,000.00 (Two Hundred Million Naira) from a litigant. The NJC went ahead to clarify that His Lordship only demanded for the sum and did not receive same as erroneously asserted by the DSS. I do not understand the basis for the distinction sought to be made by the NJC –it would appear that the suggestion being made is that the act of demanding alone is not in itself despicable and that recommending Hon. Justice Tsamiya to the President for compulsory retirement from office is sufficient punishment for the corrupt act of His Lordship. Nothing is farther from the truth –at least based on the extant provisions of the laws of our country!

Contrary to the impression that the NJC seeks to create, Section 98 of the Criminal Code Act CAP C38 Laws of the Federation of Nigeria (“LFN”) clearly provides that any public official who corruptly asks for bribe to influence the discharge of his official duties is guilty of the felony of official corruption and is liable to imprisonment for seven years. This means that whether His Lordship merely demanded and did not accept the bribe is of no moment as the admitted fact of demanding is, in itself, a crime.

Section 98D defines public official to include any “judicial officer” and by Section 1(1) of the Criminal Code a judicial officer includes “the Chief Judge and a Judge of a High Court, a Magistrate, the President and Justices of the Court of Appeal, the Chief Judge and Judges of the Federal High Court, the Chief Justice of Nigeria and a Justice of the Supreme Court”.

The import of this is that, by virtue of section 98 of the Criminal Code, His Lordship ought to be standing trial for demanding gratification in the discharge of his official duties. Perhaps, mindful of the important role a judicial officer occupies and to obviate the baseless arrest of judicial officers on trumped up charges, the Criminal Code, in Section 98C provides that a judicial officer cannot be arrested without warrant for an offence of official corruption as prescribed in section 98. This explains the warrant secured by the DSS before arresting His Lordship.

It is more saddening that the NJC, having found His Lordship culpable of the offence of official corruption merely slapped His Lordship’s wrist and bid him a happy (compulsory) retirement. It is even more afflicting that His Lordship while enjoying his (compulsory) retirement would, presumably, continue to enjoy benefits accruable to him as a retired public official funded by tax payers’ money. I wouldn’t know what can be more grievous to our democracy than the NJC’s action.

In the case of Justice I.A Umezulike, the immediate past Chief Judge of the Enugu State High Court, the NJC, at paragraph 8.4 of the press release, stated that His Lordship was recommended for compulsory retirement based on the petition of one Mr. Peter Eze. It will be recalled that Mr. Eze’s petition alleged, amongst other allegations, that His Lordship altered a court order for the purposes of assisting a judgment creditor to gain possession of a land in dispute and that His Lordship engaged in several actions that amounted to gross abuse of office. Again, this allegation against His Lordship is both misconduct and a crime as section 104 of the Criminal Code provides that any public official that engages in any act that amounts to an abuse of the authority of his office to the prejudice of the right of another person is liable to imprisonment for 2 years.

As we have shown, there is nothing in our laws that proscribe the arrest of a judicial officer upon the suspicion of commission of a crime. While the optics of arresting a judge on the allegations of commission of a crime may not be a particularly pleasant one, it would be untrue to assert, as the NJC has done, that arresting a judge on the suspicion of committing a crime is a “threat to the independence of the judiciary, which portends great danger to our democracy and a clear attempt by the DSS to humiliate, intimidate, denigrate and cow the judiciary”.

It is fitting to end by quoting Lord Denning when he said

“be you ever so high, yet the law is above you”.

Except we are saying that the laws of our land do not apply to judges, then it is safe to say that the DSS acted within the law.

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Op–ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija

Ugochukwu Nnamdi Ukamba is a Legal Practitioner based in Lagos. He tweets @NnamdiUkamba