The Special Adviser’s Interview on the Judiciary Arrests

A few days after the news of the Judiciary raids and arrests broke out, I watched a program on the television. A guest on the show, who is purportedly a Special Adviser or Personal Assistant to the Minister for Justice or the President on Anti- Corruption in the Federal Ministry of Justice (the Special Adviser), was being interviewed.

My first thought after watching the program for several minutes, was that, this man lacks the poise to be in the office that he occupies, at least, to represent people of such high authority, in public. He lacked the requisite comportment, as his behaviour was embarrassingly loud and uncouth. I was also astounded at his utterances.

Nobody is saying that any one is above the law, because they are Judges. There is obviously no smoke, without fire. It is indeed shameful, that, in Nigeria today, allegations of corruption are rife, against most of the senior officials in all the various arms of government. But if we say that we are in an era of “Change” (I would assume a change for the better), then things should be done lawfully, properly and orderly. The NBA has come out to say that, the Judges that are involved in this saga, should step aside/go on leave pending its outcome.

It is true that, there is nothing more frustrating for a lawyer who has meticulously prepared his/her case, and argues it in court, knowing that all the legal bases have been covered, and at the end of the day, the Judge gives a perverse judgment, because he has taken a bribe from the other side. That kind of thing ceases to be justice. Not only should it be discouraged, it must be completely stopped. The essence of justice is honesty, truth and fairness.

However, it is quite unfortunate, that the Special Adviser, a lawyer and person in some sort of position of authority, instead of stating the true facts with regards to the law, in a bid to convince the public that the actions of the DSS were in order, came on national and international television, with the sole mission of using the media to mislead the public, play to the gallery and convict people in the court of public opinion, even before they have been tried and whatever evidence may or may not exist against them, evaluated.

The Special Adviser used what I can only refer to as his own “Sycophantic rule” of interpretation of statutes, to misinterprete Section 2(3) of the National Security Agencies Act, 1986 (NSA Act). Certainly, he could not have used any of the three rules of interpretation of statutes available to us in law, that is the literal, golden and mischief rules.

The Special Adviser surmised that Section 2(3) could be expanded to include any crime (he repeated that ‘any crime’ several times, with gusto and aplomb!), even though it is obvious that the operative words in the statute are ‘crime’ and ‘internal security’! The phrase ‘internal security’ appears in every provision of Section 2(3). By no stretch of even a vivid imagination, can one say that Section 2(3) includes any other crimes whatsoever, except crimes relating to internal security. I wondered whether the Special Adviser and I spoke the same English Language, went to the

same Nigerian Law School, and had indeed, read the same statute. Of course, he arrogantly told the interviewers that they were not lawyers, and they did not know how to interprete statute like he did!!

Section 2(3) of the NSA Act provides that “The State Security Service shall be charged with responsibility for: (a) The prevention and detection within Nigeria of any crime against the internal security of Nigeria (b) The protection and detection 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.” How do allegations of bribery and corruption fit in here?

Section 2 (3) is clear and unequivocal. It therefore does not require the golden or mischief rules of interpretation. The literal rule (the ordinary meaning or the plain meaning rule) suffices, as the plain meaning of the words in the statute are crystal clear and do not result in absurdity.

I say the Special Adviser used the ‘Sycophantic rule’ of interpretation, which I have defined as “a non-existent rule of interpretation, that may be a manipulation of or total digression from the proper interpretation of anything, to suit the purposes of one’s superiors, whether such interpretation is lawful or not, so as to either stay in the good books of one’s superiors, or be labelled as a loyal servant, or to position oneself for promotion or derive all three benefits!”

Some have argued that by virtue of Section 6 of the NSA Act, the then Head of State, General Abdulsalam Abubakar extended the functions of the SSS to include financial crimes, with the SSS Instrument that was promulgated in 1999. I disagree. Again, the extension could be said to include economic crimes relating to internal security, maybe the cases of the former NSA and the Army Chiefs could fit under this heading, but not simple cases of alleged bribery and corruption. The intention of this legislation is obvious, the purport of this law is to deal with crimes that affect internal security, like Boko Haram, Fulani Herdsmen, Niger Delta Avengers and the like. To try to extend it to fit alleged bribery and corruption, is not only ludicrous, but results in an absurdity, a situation which the legal rules of interpretation were in actual fact, created, so as to avoid!

Therefore, if the DSS is purporting to have carried out the raids on the Judges by virtue of the NSA Act, I must submit that their stand cannot be sustained in law. Furthermore, the DSS is not one of the security agencies established by the NSA Act. Can we just wake up and say that it is a successor-in-title to the SSS?

The issue of search warrants was also raised in the interview with the Special Adviser. The DSS Operatives went to Honourable Justice Nnamdi Dimgba’s house with a search warrant apparently meant for Honourable Justice Okoro. Justice Dimgba identified himself and said he was not the person named in the search warrant, they then said they were looking for a specific address, which he informed them, was not his house. The DSS then insisted that they had ‘orders from above’ and still unlawfully entered and ransacked his residence anyway. Orders from above, is not a search warrant.

One wonders whether there were not elements of ‘witch-hunting’ in the DSS exercise, because in the case of Justice Dimgba, the Operatives were made aware that it was the wrong person and they were in the wrong place, they did not have lawful authority to enter, but they still proceeded anyway. His nephew and driver were apparently beaten black and blue.

The Special Adviser’s response was that ‘everyone makes mistakes’! It sounded so ridiculous and incredulous, especially coming from a lawyer. As lawyers, we know that, in law, there is no room for those type of mistakes and that in the event that such mistakes are made, grave consequences may arise from committing same. For one, the DSS, Federal Government, AGF amongst others, could be sued inter alia, for heavy damages for trespass, breach of fundamental human rights, mental anguish, breaking and entering, while the DSS Operatives also face charges of assault with intent to cause grievous bodily harm, on those that were beaten and rough handled.

The Special Adviser’s casual nonchalant response that ‘everyone makes mistakes’, reminds me of that of the Chairman of Code of Conduct Tribunal, who more or less said the same thing, about his comment on the trial of the Senate President, that was featured in the media some months ago. Something to the effect that, no matter how the Defence delayed the trial of the Senate President, he would face the consequences. The Chairman of the Tribunal subsequently apologised for his comment and said ‘As human beings, we are bound to make mistakes and it is only the Almighty God that is infallible!’ (True talk).

But again, as lawyers, we know that, in law, such a mistake, for someone adjudicating over a matter, is not permissible. It is called Bias. And in such a situation, the proper thing for the Judge to do, is to disqualify himself from the matter. The other option is for the Defence Counsel, to apply for the matter to be re- assigned to another Court.

It seems to me that there is not only a problem with the Judiciary, but on both sides. With the supposed corrupt elements in the Judiciary on one side, and the anti- corruption fighters on the other side. Two wrongs they say, do not make a right.

Many have argued that there was nothing wrong with the time of day or the style that the DSS Operatives used in raiding the Judges. My question is that, with the present spate of insecurity, violence and kidnapping in Nigeria, who in their right mind would happily open the door to armed masked men, in the middle of the night? If we apply the reasonable man’s test, most people would certainly not want to open their doors.

I was especially amused when the Special Adviser said that, most people know that if armed robbers visit a person’s home, the armed robbers treat the victims better if they readily open the door, as opposed to, if they make them force their way in. That victims tended to face more dire consequences, in the case of the latter. What a comparison! Comparing supposed law enforcement agents to armed robbers! (food for thought).

The Judges are not immune from criminal prosecution. If genuine cases are established against them, they should be charged to court. The NJC doing its job, does not preclude the EFCC (or Police or maybe ICPC), but not the DSS, from doing its own investigation and arrests lawfully. It did not have to be so dramatic. Using the DSS in the middle of the night, televising part of the action, and trying and already finding the Judges guilty in the court of public opinion, even before they stand trial.

Whatever happened to Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria? That provides that “Every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty.” The Judges had not even been charged, and already there was a presumption of guilt.

In the final analysis, part of the reason why there is so much controversy is that, Nigeria is in dire need of constitutional, electoral and legislative reforms, and I think this should be addressed forthwith. It seems that, lately, several situations have arisen, which the laws of the land either did not contemplate or make clear provisions for, while some laws are simply outdated. This Judiciary saga is one of those situations. The law does not provide a clear channel of procedure against the Judges. While some argue that the NJC should have been allowed to complete its task and then make recommendations for criminal prosecution, others argue that there is no law saying that criminal prosecution must be on the recommendations of the NJC, or must be delayed until after the NJC has played its own role. I also give the example of the recent issue in Kogi State, where the gubernatorial candidate of APC died prior to being declared the winner of the election, and there was a tussle about who should take over the mantle. Some laws that still impose N1,000 fines as punishment in this day and age are laughable! Nigeria is crying for a review and update of its laws.