Like a Thief in the Night

SIMON KOLAWOLE LIVE! By SIMON KOLAWOLE, Email: simon.kolawole@thisdaylive.com

Unprecedented. Dictatorial. Needful. Nigerians have deployed different adjectives to describe the overnight search of the homes of “corrupt” judges, including Supreme Court justices, by the Department of State Services (DSS). The DSS, on its part, said it was a “sting operation” — even when no suspect was caught in the act. DSS was obviously taught Use of English by the Nigerian army which recently said Boko Haram leader Abubakar Shekau was “fatally wounded” — but did not die! Well, if no death is involved, then it is not fatal. Simple. One man recently said he had a “domestic accident” on Lagos-Ibadan expressway. After all, English is not our language!

Unprecedented. Never in the history of Nigeria have homes of judges, including serving Supreme Court justices, been searched to obtain evidence of corruption. Never have Supreme Court justices been arrested on the allegations of corruption. Also unprecedented is the alleged discovery of millions of raw dollars and naira in the homes of judges. So many unprecedented things are happening in our country these days. How would the judges be tried? That is also unprecedented: taking serving Supreme Court justices to a magistrate or high court. The justices are livid with rage. They clearly never thought this could happen to them too. It used to happen to mere mortals.

Dictatorial. The centre point of the argument of many of those opposed to the DSS action is that President Muhammadu Buhari is becoming a full-blown dictator and is using state agencies to implement intimidation. There are fears that Nigeria is lapsing into a police state where security agencies are freely used to scare the hell out of everybody. In a democracy, many argue, civil institutions such as the police force, EFCC and ICPC should be allowed to engage directly with citizens when laws are broken. Involving the military, as we saw in the Zaria massacre of December 2015, will never end well. Unleashing the DSS, many have said, will also not end well.

I’m aware that many are pushing the “rule of law” argument out of ulterior motives — but I agree with them, in toto, that we are in real danger of dictatorship when DSS begins to take the centre stage in matters that could have been handled by EFCC or ICPC. (I do not trust the police with corruption cases, so I have left them out of the equation so that they can focus on armed robbery.) The DSS has the tendency to overdo things. Its operatives believe they are above the law and can do anything they like. A DSS operative once pulled the gun on my wife and myself for jogging on the road in front of their office at Shangisha, Lagos. We were a few seconds from premature death.

Nevertheless, those making the “separation of powers” argument are missing the point completely. I heard someone complain that there is “separation of powers in democracy” and, therefore, the executive should allow the judiciary to deal with its own cases of corruption. To start with, separation of powers means the three arms of government have their distinct functions: the legislature makes the law, the executive implements the law and the judiciary punishes those who break the law. Therefore, the legislature does not convict offenders, the judiciary does arrest lawbreakers, and the executive does not make laws.

Of course, roles overlap on occasion: the executive issues “executive orders” that tend to be laws on their own; cases settled at the Supreme Court which are not covered by existing legislations are essentially laws (“case laws”), although lawmakers can formally turn them to laws or make new laws to cover the loopholes; and the legislature is empowered to issue bench warrants for the arrest of public officers who refuse to honour its invitations — but it is still the executive, as represented by the police, that will carry out the arrest. That is the doctrine of separation of powers: no arm of government should do the job of the other.

It must also be noted that this is purely a presidential democracy concept. In the parliamentary system of government, the Westminster type practised in the UK which Nigeria inherited in 1960 before discarding in 1979, the legislature and executive are fused: ministers are picked from the parliament. Also, the House of Lords — the upper legislative chamber — was the final court of appeal in the British judicial system until the establishment of the Supreme Court in 2009. To equate separation of powers with democracy is, thus, a complete misconception. We don’t stand to lose anything by making our arguments within the facts.

As for those saying the National Judicial Council (NJC) should be the only body punishing the judges and anything else is a violation of the rule of law, I disagree. NJC deals with issues of ethics in the judiciary but the state can prosecute crimes committed by judges. The medical and dental council deals with ethics in the medical profession, but does that mean the police cannot arrest a doctor for murder? Does having a press council mean the police cannot arrest a journalist for blackmail and extortion? And, by the way, where are those who applauded the DSS for withdrawing operatives from Speaker Aminu Tambuwal after defecting to APC in 2014?

Needful. Many who support the DSS action have argued that the end justifies the means. They don’t mind if the rule of law is tampered with as long as the motive is to fight corruption. It is said that when Nigerians are committing the crime, they don’t remember the rule of law, but as soon as they are called to serve the time, they begin to wave the constitution in our face. Actually, many people who have been involved in court cases, especially election petitions, are unable to describe the extent of corruption in the judiciary. Some prominent lawyers specialise in bribing judges. Only God knows how many heartless billionaire judges and lawyers we have produced since 1999.

You see judges of equal jurisdiction granting opposing injunctions, even when we, non-lawyers, can tell that this is completely out of order. You see judges issuing perpetual injunctions that a former governor should not be quizzed or arrested over corruption allegations. Can you imagine that a governor has immunity from prosecution while in office, and the immunity continues after he has left office? Where was NJC? That is the perfidy that has been perpetrated by Nigerian judges. And what has the NJC done, if I may ask, apart from reprimand or retire rouge judges — while their loot remains intact and they walk free and become consultants? Is this the definition of justice?

Finally, can DSS dabble into corruption cases? The National Security Agencies Act of 1986 says in section 3(a) that the agency shall be charged with responsibility for the prevention and detection within Nigeria of any crime against “internal security”. So is corruption a matter of “internal security”? I would think DSS is duplicating the duties of EFCC and ICPC. But section 3(c) of the Act allows the National Assembly and the president to determine what constitutes “internal security”. To be clear, it was under former President Goodluck Jonathan that the DSS set up its anti-graft unit. Remember the case of ex-Jigawa governor Sule Lamido and his sons? Good.

Now to my takes on these arguments. One, judges, lawyers, priests and anybody else except governors, deputy governors, president and vice-president can be arrested for corruption, according to our laws. Two, it is not only the NJC that can or should punish erring judges. A disciplinary body cannot replace the courts — although the NJC itself is insisting on being the sole authority. Three, while tradition was broken by the DSS search, no law was violated since they reportedly secured search warrants from a court of law. Four, henceforth, the DSS should focus its attention on “internal security” and give whatever corruption evidence it has to EFCC and ICPC.

I would conclude by warning that the DSS must be restrained in its conduct. Invading citizens’ homes at midnight and breaking down walls and doors will only make sense if the DSS is dealing with terrorists, drug lords and other dangerous criminals. The DSS could have achieved the same result by simply going to the judges’ homes at 9am, knocking on the door, serving them court warrants and carting away the “evidence”. The resort to excessive use of force and violence is an overzealous display of power which traumatised us in the days of military rule. We must resist any attempt to normalise these Gestapo-inspired operations in a democracy. Draconian.

“DSS must be restrained in its conduct. Invading citizens’ homes at midnight and breaking down walls and doors will only make sense if the DSS is dealing with terrorists, drug lords and other dangerous criminals”

AND FOUR OTHER THINGS…

AISHA’S STUNNER
Are you as shocked as I am over the BBC interview with the first lady, Mrs Aisha Buhari, in which she effectively described her husband as weak and the APC government as rudderless? I have never heard any first lady launch such a politically explicit tirade. Her words were weighty and direct: clearly an indication that things are falling apart in President Buhari’s political family. I can’t read her mind, but it would appear she has chosen to take the bull by the horns by openly attacking members of Buhari’s inner circle. I am really confused. I am not convinced by most of the interpretations in the public. We have not heard the last about the intrigues inside Aso Rock. More!

‘THE OTHER ROOM’
Responding to his wife’s claims that his government has been hijacked, President Buhari cracked one of the most expensive jokes ever: “I don’t know which party my wife belongs to, but she belongs to my kitchen and my living room and the other room.” Although he laughed while saying it, he was touching a raw nerve on the archaic mindset about the role of women in the society. He reinforced stereotypes at a time significant gains are being made in gender promotion. Already, his failure to appoint a significant number of women as ministers has been seen as a big reversal for gender gains, and his latest utterance is just too damaging. Unfortunate.

CHIBOK GIRLS
Thank Goodness 21 Chibok girls have regained their freedom. We would love to have all of them back as soon as possible, but at least this raises hopes that many of them are still alive. The sight of malnourished and traumatised girls troubled my soul and deeply saddened me. I’m happy that the Bring Back Our Girls movement did not give up the fight; it appears we would have completely forgotten about these teenagers if the campaign had been abandoned all along. I am happy for the parents of the released girls but I can feel the pain and anxiety of the others who are hoping that their wards are also alive and would return someday. How do I describe that feeling? Mixed.

TRUMP CARD
It’s interesting, isn’t it, that whenever we think Republican candidate Donald Trump is down and out and should therefore shut up, he never gives up on himself. His recently exposed demeaning statements on women, which many men make but are lucky enough that they go unrecorded, should ordinarily make him accept that the game is over. However, his supporters are not abandoning him and he may have fans who are just quiet but would rather talk with their votes on November 8. Some are thoroughly disgusted by Trump but are not convinced by Senator Hillary Clinton either. That may just be Trump’s biggest card. Scary.