Quotes from Agbakoba on Judges’ Arrests

By Olisa Agbakoba

There is a frenzy about corruption and the nation is divided. We have popular justice: those that say, if you catch someone stealing our money, shoot him, and those that say yes, follow due process.

NBA never said that if these judges are corrupt, they should not be dealt with. NBA never said they are entitled to immunity.

The competence of DSS is questionable. The National Security Agencies Act. I’m not sure if this DSS is the old SSS that arrested me and put me in jail. DSS is not referred to in the National Security Agencies Act. If DSS is calling itself SSS, it has a very narrow mandate to investigate crime related to internal security. I was Nigeria’s youngest well-trained intelligence person, a research fellow at the Intelligence Unit of the Nigerian Institute of International Affairs.

DSS and SSS came out of the old Nigerian Security Organisation (NSO) which also came out of Branch E of the Police Force. I presented the Concept Paper at NIPPS, Kuru that set up the Intelligence Structure of Nigeria. The Convener of that process was Prof. Bolaji Akinyemi. Never was it intended to give the SSS or the DSS anything other than intelligence powers.

The situation in England is a bit different, where you have the Security Services Act, that established the MI5, the equivalent of our own DSS or SSS. In England, M15 had power to investigate financial crimes although today, this has been transferred to the National Crimes Agency. The United States Security Services Act also vests power in the Security services to assist Law enforcement Agencies in the investigation of serious financial crimes. But the difference in our case is that the National Security Agencies Act does not give power to the DSS in respect of financial and corruption offences.

It’s open to question whether the DSS has any powers at all. It is also open to question whether the DSS exists in law. Let us assume that they exist in law, a sting operation is reserved for the hardest possible criminals, those in vice, prostitution, organised crime. It is inconceivable that these Judges could have been stung by the DSS when already five out of the seven had been investigated by the NJC and removed from office. So what is the DSS doing when the NJC has removed them? Was Umezulike not removed (Chief Judge of Enugu)? The Court of Appeal Judge in Ilorin, was he not removed? Why did they go to his place? So, the DSS in my view has no reason.

Lastly, I watched the video on the television. That type of treatment, knocking down doors, with hack saws, is reserved for only the hardest criminals. You and I don’t deserve that type of treatment, and I have been through it, so I know it. This same DSS people, when they were SSS, came breaking down my door in the middle of the night in 1998. That is not what you do. So that is the NBA’s concern. If tomorrow there is evidence that they are responsible for what the DSS alleges, I will be the first to say, please, charge them to court. But that is not the situation.

The manner in which they carried out (the arrests) is not to be taken for granted. In England, during the Second World War, a German Spy was caught. There was an outcry. Lord Denning said “Amidst the clash of arm, the laws are not silent. They speak the same language in war, as in peace.” So in Nigeria, amidst the rampant corruption, the law remains, due process remains, you don’t change it. So the question is, the DSS, are they established by law? Do they have the power to extend their role from internal security into financial crimes? I doubt it.

If the organisation is not established by law, then their actions are unlawful. How can you have an organisation, not established by law doing anything? The law must establish the organisation to do something. They need to clarify whether they are the DSS or the SSS, because the DSS isn’t referred to. You have the Defence Intelligence Agency, the National Intelligence Agency and the State Security Services. Those are the three arms that are established by the National Security Agencies Act, not the DSS.

Evidential value, however acquired, is admissible, but due process is constitutionally guaranteed. Assuming that the Judges go to trial, and I am Counsel to them, I’ll make a case that the constitutional guarantees given to them, has been violated. And that is fundamental.

Evidential issues are different. If there is a fundamental defect in the way in which the arrest has occurred, it will affect the process. But even with a warrant, would the average Nigerian think the manner in which the arrest was conducted, was humane? Even the Administration of Justice Act under which they purported to have gone refers to humane treatment of people suspected of committing a crime. Section 34 or 35 of the Constitution refers to not subjecting people to inhumane and degrading treatment. In my view, without prejudice to whether they committed the offence or not, they would have been handled in a much more humane way. What about all these Generals that have been stealing money, billions, have they done this to them, all the scandal about the arms deal. I’m sure that Judges have the stature to respond to invitations. Couldn’t they have been invited?

NBA wants to get to the bottom of this. By the way, we are waiting for DSS to release the evidence. There is a process set out in the Administration of Justice Act dealing with procurement of evidence. The DSS has flouted every single one of them. They would have required a search warrant, humane treatment, collecting the money which the suspect will sign for, entitlement to legal counsel immediately (Miranda rule). All the guarantees in the constitution have not been followed. That is the point that the NBA is making. I am even keen to know where the Search and Arrest warrants were obtained from and the basis upon which the warrants were issued.

We have divided opinions. We can’t all agree. That is what is expected in a democratic society. I support the Vice-President, that the Government needs to fight corruption. But when I was NBA President, I prepared a Position Paper for the Attorney-General which dealt with strategies for fighting corruption. Up till now, as I speak, not a single Attorney-General has looked at it, because I said there’s a need to harmonise what the law enforcement agencies do. We could have avoided this.

There are issues of overlapping of functions. You have the ICPC, the SFU, now the DSS jumping in to say that they are part of the law enforcement Agencies. Next thing, Customs will also jump in. Exactly what agencies of government have the power to do this? Who does what?

The DSS is not one of the law enforcement agencies envisaged by the Act because the DSS (I think you mean SSS here) function is limited by the Act creating it to internal security. It did not extend it to criminal investigations. In any event, if all these policies are clarified, there would be no problem. But right now, it is difficult to tell whether the DSS has jurisdiction in criminal matters. In Nigeria it is unclear. I say that they don’t have. It needs to be clarified.

The DSS is an intelligence agency saddled with internal security with the key function of preventing espionage. I would think the appropriate Agency to deal with the matter of corruption by Judges or anyone for that matter will be the EFCC or the Police but certainly not the DSS.

I am not sure on what grounds the can charge anybody to Court? The statutory function of the DSS as prescribed by its establishment Act relates strictly to the prevention and detection of crime related to internal security. The alleged offences against the Judges at best relates to corruption, a matter clearly outside the statutory function of the DSS.

I will say that these events should serve as a wake – up call to the Bar and the Bench. The public would appear to have lost confidence in the Legal and Judicial process and this is why there is little regard on matters of due process and constitutionalism. I think it’s up to us to rebuild and regain the confidence of the public so that they can understand when we as Lawyers say that due process and constitutionalism of anyone charged with a crime is of paramount importance.

Dr. Olisa Agbakoba SAN, Past President, NBA