Buhari’s advisers explain legal justification of arrest of judges
As controversy continues to trail the crackdown on allegedly corrupt judges, the Muhammadu Buhari administration has commenced circulation of a document to educate Nigerians about the legality of measures taken.
The document, titled: “Factsheet”, is part of the administration’s effort to contain the fallout of the assault on judges, which was coordinated by the State Security Service.
The factsheet was put together by the Presidential Advisory Committee against Corruption through different media channels.
An overnight operation between October 7 and 8 saw scores of masked SSS personnel swoop on the premises of seven judges across six states.
Supreme Court judges Inyang Okoro and Sylvester Ngwuta were arrested in Abuja. Federal High Court judge, Adeniyi Ademola, and his Court of Appeal counterpart, Mohammed Tsamiya, were also arrested in Abuja.
Others arrested included, Kabir Auta, Kano; Muazu Pindiga, Gombe; and Innocent Umezulike in Enugu.
The SSS said a huge stash of money was recovered from the judges’ homes.
The clampdown sent shockwaves through the polity, with supporters and antagonists of the SSS falling over themselves to offer opinions that support their respective stance.
The unprecedented action is part of radical measures the administration has resorted to in its fight to contain endemic corruption in the country.
Hours after the operation, Mr. Buhari told Nigerians that he was not waging a war against the judiciary as an institution but corrupt elements therein.
But the National Judicial Council, which traditionally exercised discretion over disciplinary action against serving judges, disagreed. The body, after a two-day deliberation, said the SSS’ action was an affront to the rule of law and the principle of separation of powers.
The NJC also said the tactics deployed by the SSS was reckless and could serve as an opening for armed bandits to raid their homes in future.
Earlier this week, the Itse Sagay-led presidential advisory committee enumerated relevant sections of Nigerian statutes to demonstrate that the raids were conducted in compliance with the law.
The committee members identified some of the major concerns Nigerians had with the arrests, and provided what they believe were the appropriate answers as follows:
CAN SSS ARREST FOR ECONOMIC AND FINANCIAL CRIMES
Section 2(3) of the National Security Agencies Act 1986, State Security Service is charged with responsibility for –
“(a)the prevention and detection within Nigeria of any crime against the internal security of Nigeria;
(b)the protection and preservation of all non-military classified matters concerning the internal security of Nigeria; and
(c)such other responsibilities affecting internal security within Nigeria as the National Assembly or the President, as the case may be, may deem necessary.”
Section 315 (3) of the Constitution provides that:
“Nothing in this Constitution shall invalidate the following enactments, that is to say …..
(c.) the National Security Agencies Act.
and the provisions of those enactments shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of this Constitution and shall not be altered or repealed except in accordance with the provisions of section 9 (2) of this Constitution.”
WHO ISSUES A SEARCH WARRANT?
Section 143 of ACJA provides that a court or Justice of the Peace may issue a search warrant at any time authorising “an officer of the court, member of the police force, or any other person named” to search such building, ship, carriage, receptacle, motor vehicle, aircraft, etc. (Emphasis supplied).
Under the Criminal Procedure Law, section 109, it is a Magistrate who issues a search warrant; under section 75 of the Criminal Procedure Code, a search warrant is issued by a court or a Justice of the Peace.
WHEN AND HOW CAN SEARCH AND ARREST WARRANTS BE EXECUTED?
By section 148 ACJA, “A search warrant may be issued and executed at any time on any day, including a Sunday and public holiday.”
HOW SHOULD A SEARCH BE CONDUCTED
Section 149 ACJA provides that “(1) Where any building or other thing or place liable to search is closed, a person residing in or being in charge of the building, thing or place shall, on demand of the police officer or other person executing the search warrant, allow him free and unhindered access to it and afford all reasonable facilities for its search.
(2) Where access into the building, thing or place cannot be so obtained, the police officer or other person executing the search warrant may proceed in the manner prescribed by sections 9, 10, 12 and 13 of this Act.”
Sections 9, 10, 12 and 13 relate to the use of force in the search of a person arrested; inventory of items recovered in the search; entry of premises where a suspect to be arrested has entered into; and breaking open of any outer or inner door or window of any house or place whether that of the suspect to be arrested or any other person or otherwise effect entry into such house or place.
These provisions are similar to the provisions of sections 7 and 112 of the Criminal Procedure Law.
WHO ISSUES A WARRANT OF ARREST?
By section 36 (1) (c) ACJA, a warrant of arrest is issued by a Judge or a Magistrate. A warrant of arrest may be issued on any day, including a Sunday or public holiday. See section 38 ACJA.
Under the Criminal Procedure Code Law Cap. 41 Laws of Sokoto State of Nigeria 1996, Magistrates and Justices of the Peace have the power to issue warrants of arrest. See section 56 of the Law.
CAN ARREST BE EFFECTED IN THE ABSENCE OF AN ARREST WARRANT?
Section 44 provides that “A warrant of arrest may be executed notwithstanding that it is not in the possession at the time of the person executing the warrant but the warrant shall, on the demand of the suspect, be shown to him as soon as practicable after his arrest.” (Emphasis supplied).
By section 18 (1) (d) and (j) ACJA, a police officer may, without an order of court and without warrant, arrest a suspect in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to the thing; or for whose arrest a warrant has been issued or whom he is directed to arrest by a Judge, Magistrate, Justice of the Peace or superior police officer.
Section 149 ACJA is crystal clear that any person in whose name a search warrant is issued can execute the search. Also section 40 ACJA has conferred on the court the power to issue warrant of arrest to any other person as the court may decide.
The section provides that:
“(1)A court issuing a warrant of arrest may, where its immediate execution is necessary and no police officer is immediately available, direct it to some other person or persons and the person or persons shall execute the same.
(2)A person, when executing a warrant of arrest directed to him, shall have all the powers, rights, privileges and protection given to or afforded by law to a police officer executing a warrant of arrest and shall conform with the requirement placed by law on a police officer.”
It has already been settled that in the conduct of searches and arrests, staff of SSS are conferred with the powers of Superior Police Officers. Reference to police officers in any law in Nigeria, in relation to searches and arrests, also refer to staff of SSS.
WHAT IF THE SEARCHES AND OR ARRESTS WERE MADE ON IRREGULAR OR DEFECTIVE WARRANTS OR ADMINISTERED AT WRONG TIMES?
ACJA provides clear and categorical answers to these questions vide section 136. It states:
“Where any defendant is before a court, whether voluntarily, or on summons, or after being arrested with or without warrant, or while in custody for the same or any other offence, the trial may be held notwithstanding:
A. any irregularity, defect, or error in the summons or warrant, or the issuing, service, or execution of the summons or warrant;
B. the want of any complaint upon oath; or C. any defect in the complaint, or any irregularity or illegality in the arrest or custody of the defendant.”
ARE JUDGES/JUSTICES IMMUNE FROM ARREST/PROSECUTION?
Section 308 of the Constitution confers immunity from civil and criminal proceedings (within the set limits) on the President, Vice President, Governors and Deputy Governors. No other person, to my knowledge, in the executive, legislature or judiciary, enjoys similar cover.
IS DISCIPLINARY PROCEEDING BY THE NATIONAL JUDICIAL COUNCIL (NJC/COUNCIL) A MANDATORY PRECURSOR TO CRIMINAL PROCEEDINGS IN ALLEGATIONS OF CORRUPTION AGAINST JUDGES/JUSTICES?
By the combined effect of sections 153 (1) (i), 158, 160 and 292 and paragraph 21, part I, Third Schedule of the Constitution, the NJC is an independent body that is not subject to the direction or control of any other authority or person and that makes rules to regulate the discharge of its functions. The Council, inter alia, exercises disciplinary control over judicial officers.
NJC is not a court; it is not a law enforcement agency. The functions of the Council are limited, in relation to misconduct by judicial officers, to internal administrative inquiry and recommendation of appropriate punishment of erring officer to the President or the Governor, as the case may be.
The disciplinary procedure by the Council cannot forestall any investigation that aims to uncover facts about allegations bordering on commission of crime by a judicial officer. Neither can criminal investigation stop the Council from discharging its constitutional duty to discipline its officers. The two processes can be sustained independent of each other.
Via Premium Times