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Dealing with fallout from raid of judiciary by the executive

Raid of homes and arrests of numerous judges and justices who preside over the sanctuary of the judiciary in Nigeria by the DSS raised serious concern.

“The judiciary is the only true and final arbiter of whether any wrong has been done by anyone…”

It is trite that corruption is a pandemic in Nigeria. It is also trite saying that a desperate disease requires a desperate remedy.    

That said, the audacious, odd-hour raid of the homes and the arrests of numerous judges and justices who preside over the sanctuary of the judiciary in Nigeria by the DSS agents of the Executive Branch of government reportedly on the basis of an anti-corruption crusade on October 8, 2016 raises serious concern. 

It is a monumental development that requires skillful handling.   

I submit that, at the very least, the DSS raid of this magnitude ought to have been complemented by:  

a) a simultaneous lodging of complaints against the alleged misconduct of the arrested judges and judicial officials with the National Judicial Council (NJC) – a disciplinary body for judges; and;

b) a simultaneous Presidential address to the nation by President Buhari and his Attorney General to explain the rationale behind the resort by the Executive Branch to this extraordinary and unprecedented recourse and what Nigerians – and the world – should expect next.   

Granted that the prescription for simultaneity along the lines suggested above is a call for the unusual; and it is, perhaps, an expectation that ordinary men should do extraordinarily complex things, the fact remains that what the Executive Branch has done – the arrest of sitting judges – is clearly extraordinary by every measure. 

The shock and angry reactions that have been generated by the action of the Executive Branch cannot and must not be carelessly waved off with statements like “no one is above the law” or “the Executive Branch is merely doing its job” or “Buhari has been left with no choice due to alleged endemic corruption in the judiciary”. 

I contend that while it is easy and legal to conveniently conclude that anybody who has no constitutional immunity – including Supreme Court justices – may face arrest and prosecution on good grounds, the problem bedeviling this unprecedented development is that the judiciary – of which those indicted are major faces – is an inseparably significant, if not the most significant, part of Nigeria’s Law and Order process. 

More critically, the judiciary is the only true and final arbiter of whether any wrong has been done by anyone. 

These judges and judicial officials are presumed innocent by operation of the constitution; the supreme law of the land which binds the Executive Branch as it does everyone else. 

Many sane questions have now surfaced! 

Are the judges and judicial officers to continue in their judicial roles pending the conclusion of the investigation into (or prosecution of) their cases? 

Are they going to face disciplinary hearings by NJC concurrently? 

Will suspension be slammed on them by NJC? 

Will they tender their resignation? 

These concerns could at least have been partially, if not fully, addressed had there been a careful and simultaneous coordination of efforts by all stake holders as suggested above.

Some people might argue that it would have been unrealistic or premature to expect any meaningful coordination of efforts without the real possibility of sabotage.  

Yet, grappling with and managing the risk of sabotage within the bounds of the law is the price you pay for democracy where collaboration is mandatory; as opposed to dictatorship where absolute powers are vested in a single individual. 

Moreover, democracy has a way of also penalizing sabotage; and that is where leadership, resolve, dexterity and unyielding determination come into play.  

Now a country is beleaguered and gripped with tension and apprehension. A cacophony of condemnation of the executive action rents the air. 

The opposition has revved up its engines of propaganda to denounce the development as the worst threat to democracy that Nigeria has ever faced. 

Worse still, Nigerians seemed to have been plunged into information darkness about what tomorrow holds. 

The entire polity has once again been exposed to intense and dangerous but avoidable heat. 

Be that as it may, I hasten to disagree with commentators and groups – including the Nigerian Bar Association (NBA) – who have hurriedly condemned the impugned actions of the Executive Branch as unconstitutional and illegal. 

I disagree with such conclusions even though I quarrel with the modus operandi of the Executive Branch. 

Assuming that the Executive Branch obtained necessary judicial warrants for search, seizure and arrests against these judges, then their actions would have squarely fallen within the bounds of the constitutional rights and obligations of the Executive Branch. 

I submit that there is nothing inherently unconstitutional or illegal in arresting a sitting judge. 

Legally speaking, once all the normal pre-search and pre-arrest procedures that must be followed under the law – as with the cases of ordinary citizens – have been followed, there is no other condition-precedent. 

For the avoidance of doubt, I posit that there is no valid legal basis for the contrary contention that a disciplinary hearing against a sitting judge ought to have been initiated or concluded by the NJC prior to a criminal investigation or prosecution of the said judge. 

Continues…

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