By SUNDAY ODIBASHI
THE Department of Security Service (DSS) operations between Friday, October 7 and Saturday, October 8, 2016, resulting in the arrest of some Judges at their residence on suspicion of corruption, generated inter-governmental conflicts over issues of separation of powers and checks and balance between the arms of government. The operations also deepened mutual distrust between the executive and the judiciary.
The DSS had started a rational process that would have sustained the cooperation of the National Judicial Council (NJC) on the corruption allegations against some judges but appears to have become impatient and off-guarded into embarking on use of coercive powers on the judges.
Both the DSS and the NJC have consensus on the need to eradicate the cataclysmic corruption in the country but were at divergence on the approach to achieve the national assignment. The divergence is a function of the inherent contradictory routine roles and functional specifications of both institutions of the state in the search for a new order in the polity.
As Niccolo Machiavelli postulated: “It must be considered that there is nothing more difficult to carry out, nor more doubtful of success, nor more dangerous to handle, than to initiate a new order of things.”
Invariably, the DSS/CJN conflict may not be unconnected with the seeming lacuna in the conception of the anti-corruption war, widely construed as an exclusive executive responsibility.
President Muhammadu Buhari, at inception, was reported to have remarked that the judiciary is a stumbling block to the fight against corruption, thus, creating the phenomenon of inter-governmental distrust.
National Daily Inquiry revealed that the NJC, an organ of the judicial arm of government, and the DSS, an institution of the executive, became interlocked at crossroads of the systemic fundamental principles that define their routine roles and specified functions in justice administration. The NJC, being the custodian of the law and the rules of its implementation, had insisted on the core legal procedures; while the DSS, an enforcement institution of the executive, leveraging on the coercive apparatus of the state, cannot stand the rigour of establishing facts as required in the judiciary. Apparently, the DSS enforcement procedure is seemingly isomorphic with the scenario of using atomic bomb to kill a fly, considering the high level coercive capability of the Service in the country’s security structure.
Before the October 7 operations, there were series of correspondence on corruption allegations against some judges between the DSS and NJC. Indeed, DSS disclosed that the Service sent 10 petitions to the NJC but the Council failed to act upon them. Thus, from the inchoate stage, the DSS played according to the rules but seemingly lost focus at a point.
Available records showed that the DSS had on February 26, 2016, written a petition to the President of the Appeal Court, and copied the Chief Justice of Nigeria and Chairman, National Judicial Council, Honourable Justice Mahmud Mohammed, against Justice M.A. Pindiga of High Court of Justice, Gombe State, on corrupt practices.
The NJC, in a letter dated April 19, 2016, signed by Danladi Halilu, NJC Secretary, for the CJN and NJC Chairman, acknowledged that the petition from the DSS against Justice Pindiga was not accompanied by facts of evidence, advising the Service to make a review towards that fulfillment. Danladi Halilu had declared: “I have been directed to inform you that your complaint has not complied with the extant Judicial Discipline Regulations 2014 of the Council as it was not accompanied with a verifying affidavit deposed to by you before a Court of Record. In view of the foregoing, you may wish to comply, please.”
The NJC, in subsequent correspondence, dated September 7, 2016, citing petition Reference No. DGSS.71/361 dated 26th February, 2016, against Justice Pindiga on Corrupt Practices, explained that at the NJC meeting of 1st and 2nd June, 2016, Council constituted a Fact Finding Committee comprising its Members under the Chairmanship of Hon. Justice B.A. Adejumo, President of the National Industrial Court, to investigate the allegations contained in the DSS petition, among others.
Halilu, NJC Secretary, further narrated that “at its Meeting held on 14th and 15th July, 2016, Council considered and deliberated extensively on the report and noted that the Officer that represented your organization at the Investigation Committee averred that your office could not conduct full investigation of the petition to obtain hard facts to support the Preliminary report as alleged,” adding, “your organization was directed by the CJN to stay further action on the matter to allow the NJC look into it.”
“At the end of the deliberation, Council found that the claim by your organization is not correct, as the CJN did not stop your office from conducting full investigation so as to obtain hard facts to support preliminary findings and proof of the allegations…” Halilu stated, in part.
He maintained: “consequently, in the absence of any patent evidence to substantiate the allegations contained in your petition against the Judicial Officer, Council was unable to find any act of misconduct to warrant His Lordship being sanctioned.”
Halilu further remarked: “Council further directed that while it is appreciative of the wonderful working relationship between the Judiciary and other Arms of Government, in fidelity with the Principles of Separation of Powers and Rule of Law, it is not amenable to invitation being extended to Judicial Officers by Departments and Agencies of Government for any reason.”
At this point, there manifested elements of hostilities in subsequent correspondence.
Perhaps, the NJC attempted to establish the inherent internal mechanisms of discipline, autonomy and modus operandi of inter-governmental relations between the three arms of government. The DSS, however, harped on constitutional issues of immunity, shifting from the structural functionalism framework.
Accordingly, the DSS in its correspondence dated September 14, 2016, acknowledging the NJC letter Ref: No. NJC/HC.GM/5/1/134 dated 7th September, 2016, drew the attention of Halilu to what the Service considered inappropriate manner in which the letter was personally addressed to the addressee instead of the Director-General, State Service.
Ahmed Ahmad who signed the letter for DG, SSS, thereafter, ordered that, “in this wise, all correspondence should, henceforth, bear the correct nomenclature and address of the DG, Security Service.”
Ahmad also contended: “I am further directed to invite you to note paragraph 5 of your letter in which it was stated that the Council “is not amenable to invitations being extended to Judicial Officers by Departments and Agencies of government for any reason” and to observe that if this is strictly adhered to, it would constitute serious obstacle on the path of Agencies of Government saddled with the responsibilities of carrying out or conducting investigation into any criminal act by the Judicial Officers concerned.”. He subsequently reminded the NJC Secretary that by the Nigerian Constitution, only the President, Vice President, and sitting Governors and their deputies are conferred with immunity. “Even, then, this immunity does not exempt them from criminal or security investigation,” he remarked.
Ahmad, thereafter, ordered: “In view of the foregoing, and the fact that the Council has concluded action on the Pindiga case, I am further directed to humbly request you to direct Justice Mu’azu Pindiga to report to the National Headquarters of the DSS to see the Director Operations on 15th September, 2016 at 11.00 hours unfailingly.”
The NJC Secretary on September 15, 2016, acknowledged the DSS letter of September 14, 2016, observing that NJC had in the past addressed letter to the Service office in the same manner, using the name and designation of the person occupying the office, without any observation being raised to the addressee. “It is to be noted that the DSS had also written to The Chief Justice of Nigeria and used his name… in addition to his designation,” Halilu further observed.
He also noted that the Council has also written letters to the President, Senate President, Ministers, Governors, Heads of Departments, Agencies and Institutions in similar manner.
Halilu acknowledged that the Office of the Secretary of the Council has taken note of the observation and, henceforth, will adhere.
He, however, remarked that what was communicated to the DSS office in the letter Reference No. NJC/HC.GM/5/1/134 of 7th September, 2016, was the decision taken by Council at its Meeting which was held on 15th July, 2016.
He, thereafter, promised: “…all the observations contained in the letter aforesaid, will be presented before Council at its next Meeting scheduled for 28th and 29th September, 2016 and the outcome of which will be communicated to your office, instant.”
Halilu also noted: “in the meantime, The Chief Justice of Nigeria has directed the Chief Judge of Gombe State to immediately contact the Subject and to ask him to appear in your office as requested; and the Judge has complied.”
Correspondence between the two institutions between October 5 and 7, probably frustrated the DSS, though, NJC’s response was received on October 9 by DSS.
The DSS on October 5, 2016, requested for records of NJC’s findings on three suspended judges. The request was rational towards consolidating the boundaries of separation of powers and ensuring continuity in the functions of the state. It is imperative to bridging inter-governmental commitments. The NJC, however, insisted on strict legal proceedings which is also apposite to rule of law.
The NJC had at its 78th Meeting on Thursday, September 29, 2016, dismissed the Chief Judge of the Kano High Court, Justice Kabiru M. Auta, with immediate effect; took further action to hand him over to Assistant Inspector-General of Police, Zone 1, Kano, for prosecution. The Presiding Justice of the Court of Appeal, Ilorin Division, Justice Mohammed Ladan Tamiya, and the Chief Judge of Enugu State, Justice I. A. Umezulike, were also suspended at that meeting.
Accordingly, NJC on October 7, 2016, acknowledged the letter, No. LSD.158/46 dated 5th October, 2016; declined the request on legal principles. NJC Secretary had declared: “I have been directed to inform the DSS that by the precedents and practice of Council with respect to the subject matter, no Record of Proceedings or deliberations and or decisions of Council, including the report of its Investigation Committee are released to the Complainant or Petitioner or Subject Judge or any Institution save by an order of Court.”
Perhaps, the DSS cannot afford the rigours of Court processes to obtain the records demanded; therefore, the Service commenced the operations of conducting search and arresting judges by fiat on same October 7, signifying a breakdown of inter-governmental relations between the executive and the judiciary.
The Judicial Officers arrested by the DSS in the weekend operations included: Sylvester Ngwuta and Inyang Okoro, both of the Supreme Court; the suspended Presiding Justice of the Court of Appeal, Ilorin Division, Justice Mohammed Tsamiya; Justice Kabiru Auta of the Kano State High Court and Justice Adeniyi Ademola of the Federal High Court, Abuja.
Others included, former Chief Judge of Enugu State, Justice I. A. Umezulike, and Mu’azu Pindiga of the Federal High Court, Gombe Division. They have since been released on bail by the Service.
The NJC, after its emergency Meeting which ended last Thursday, concluded that the DSS raid is a “threat to the independence of the judiciary, which portends great danger to our democracy; and also considered the action as a clear attempt to humiliate, intimidate, denigrate and cow the judiciary.”
The bizarre is that the judges while awaiting prosecution have resumes duties in their respective courts, culminating into agitations that they should step down. Some other judges are also under investigation by the Economic and Financial Crimes Commission (EFCC).
Meanwhile, the controversy may be germane to the leadership credential of President Buhari. This is essentially so because in as much as Niccolo Machiavelli articulated the view that the end justifies the means, as long as The Prince succeeds, he, however, admonished that, “He who becomes a Prince through the favour of the people should always keep on good terms with them; which it is easy for him to do, since all they ask is not to be oppressed.”