The State Security Service (SSS) embarked on an unprecedented “crackdown” on allegedly corrupt judges across the country over the weekend.
Among the judicial officers whose houses were searched and thereafter arrested and detained are two Justices of the Supreme Court of Nigeria; Justices Sylvester Ngwuta and Inyang Okoro.
As expected, the action has polarised lawyers, commentators, the media, civil society and the public.
Differing views have been expressed on the constitutionality or otherwise of the steps and procedures adopted by the SSS.
Sadly, the public has been deprived of opinions that are rooted in law owing largely to the belligerent and sentimental posturing and aggressive grandstanding that has impaired commentaries on the issues in controversy.
My task in this essay is simply to offer a legal opinion on the following four issues:
First, are judicial officers in Nigeria immune from the criminal justice system?
Second, is it mandatory for security agencies to seek the consent/intervention of the National Judicial Council (NJC) before investigating, arresting, detaining or prosecuting a judicial officer over alleged crimes?
Three, did the SSS act within its statutory powers and acceptable legal procedures?
Four, is evidence that is obtained illegally admissible in law?
The above questions or issues are in my considered view the crux-es of the matter.
Before I proceed further, may I respectfully issue a caution: This op-ed is one of the longest that I have written in recent times.
It is not for the lazy mind or for those who are easily irritated by long essays and exposition.
The nature of the issues under consideration necessarily made it a detailed essay. I solicit the indulgence of readers.
Resolution of the issues:
1. Are judicial officers in Nigeria immune from the criminal justice system?
The only constitutional provision relating to immunity from civil and criminal proceedings and processes for certain public office holders in Nigeria is Section 308 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (hereinafter referred to as the Constitution).
Based on that provision, only the President, the Vice President, Governors and Deputy Governors are shielded from civil and criminal proceedings and processes in limited circumstances.
It is an elementary rule of interpretation that the express mention of one person or thing is the exclusion of another. The maxim is expressio unius personae vel, est exclusio alterius.
In the case of Ehuwa v. O.S.I.E.C. (2006) 10 NWLR (Pt.1012) 544, the Supreme Court stated the position thus:
“It is now firmly established that in the construction of a Statutory provision, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included…” Per OGBUAGU, JSC.
The implication is that every person apart from the four public officers expressly mentioned in Section 308 of the Constitution is subject to investigation, arrest, detention and prosecution.
Judicial Officers from the Chief Justice of Nigeria (CJN) to High Court Judges do not enjoy any special protection from criminal proceedings and processes.
Immunity cannot be inferred, it must be specifically granted.
Those suggesting that judicial officers in Nigeria are entitled to special protection or immunity should be kind enough to cite the enabling constitutional or statutory provision that supports their position.
The truth is that there is none.
2. Is it mandatory for security agencies to seek the consent/intervention of the NJC before investigating, arresting, detaining or prosecuting a judicial officer over alleged crimes?
The NJC is one of the institutions established by Section 153 of the Constitution.
The power of the Council is provided for in Paragraph 21 of the Third Schedule to the Constitution.
The NJC is empowered inter alia, to recommend the removal from office of judicial officers and exercise disciplinary control over them.
By virtue of Section 158 (1) of the Constitution, the NJC is guaranteed constitutional independence and is not subject to the control of any other authority or person when exercising its disciplinary control.
There is no dispute on the disciplinary control of the NJC over judicial officers.
What is disputed by some legal commentators is the extent of the disciplinary control.
Is it correct to aver that no criminal proceedings or action can be initiated or taken against a judicial officer except on the invitation/directive of the NJC?
At the risk of repetition, where a judicial officer is alleged to have committed a crime, is it mandatory for law enforcement agencies to go through the disciplinary instrumentality of the NJC before taking actions against the erring judicial officer?