I could see that many people do not understand the issue surrounding the weekend crackdown on supreme court justices and federal judges by the Department of State Security Services, DSS. But I will try to reduce it to a level where everybody can understand it.
(1) Judges are responsible for sending all the people in prisons to prison. So, if you send a judge to prison, he is going to meet people he sent to prison. (A FORMER judge will still go to prison if convicted of a crime. But mark my word “FORMER” judge). Why did I use the word “former”? Because before sending a judge to prison, you must first remove him from being a judge, so that when he arrives in prison, he will not remain a judge.
(2) All the people in DSS cell today will either be released or charged to court. When charged to court, they will appear before judges. So, if you detain a judge in the same cell as the other people, what will happen tomorrow when they appear in the same court before the judge who was their cell mate?
(3) There is the presumption of innocence, which means that the judges will remain judges until they are proven guilty, which could be 4 years from today. So, it is important to first remove a judge as a judge before he is prosecuted. Otherwise the same man will be standing criminal trial at a time he is still a judge. So, if his own case is coming up on Tuesday, he will serve as a judge on Monday, but on Tuesday, he will stand in the dock as an accused person. Then on Wednesday and Thursday, he would sit as a judge in the next courtroom.
(4) If the judge remains a judge (since he has not been removed as a judge) during the time that his own case is being tried, it is the same DSS prosecutors prosecuting him that will appear before him to prosecute other suspects. If you are a lawyer representing a suspect agains the DSS in the court of this judge who is also being tried by the DSS, you will fear that the judge would be too afraid of the DSS to render impartial judgment.
It is odd, stupid, impracticable and unconstitutional to arrest a sitting judge for a common crime.
This is what the Nigerian law envisaged: If a judge commits a crime, what you report him to the national judicial council (NJC). That is the body that disciplines judges. That body will dismiss the judge within 6 months. Then you can prosecute the judge and there is no possibility of him sitting at the same time as he is being prosecuted.
Ironically, if you start criminal prosecution of a judge, the NJC cannot do anything until you finish the criminal trial, which can take 4 years. So, the best way for a judge to remain a judge for a long time is for you to start criminal trial rather than a disciplinary proceeding to remove him first.
For the reasons I pointed out above, all over the world, there is a special procedure for dealing with a judge that committed a crime. The first step is to remove him as a judge so he will not remain a judge when his case is being tried.
Anybody that supports DSS in this matter does not understand what happened yesterday. Consider the following:
(1) The DSS said they have been monitoring the judges to observe their lifestyle. That means that they were monitoring all the judges. That also means that they have been invading the privacy of these judges all this while. The judges would lose their independence if they are under the indiscriminate surveillance of the DSS.
(2) What is lifestyle? It means everything. The DSS has been engaging in illegal wiretapping and other abuses on the judicial arm of government.
(3) The DSS said they went after the judges for misconduct. Misconduct may not be a crime. So, they went after some of the judges for having girlfriends.
(3) The DSS said they invited the judges who came to meet them during their investigation, If so, why then did you storm their houses in the middle of the night. Why not invite them again and arrest them while they are in your office?.
(4) Where are the arrest warrant for their arrests? Where are the search warrants for search their houses?
(5) Why arrest them on weekend, if not to ensure they will not have access to any court until they have been detained for two days?
(6) When did the DSS audit the lifestyle of the President and his family? Why the judges alone?
In a way, there is something good that will come from this case. Ironically, these judges have been too afraid of the DSS and the EFCC. As a result, they failed over the years to take a clear position on the continued arrest of people without warrant. Now, it has been used on them. They will sit down next week and rule on the matter. I expect them to rule out all but very few arrests without warrant. The same with warrantees searches. Also, these judges allowed the police to arrest people on Fridays and they held that the 24 hour time frame the constitution required did not apply on weekends. There is no reason why it should not apply on weekends. Now it has been used on them.
Emeka Ugwuonye is a human rights lawyer and activist. He is president and chief executive officer of a leading human rights law firm in Nigeria, Eculaw Group. Ugwuonye is a graduate of the University of Benin and the Nigerian Law School, Lagos. He is a former policy adviser at Harvard University and legal counsel at the World Bank Group and the African Development Bank. Connect with him on Facebook where he runs a human rights group called Due Process Advocates.
The opinions expressed in this article are solely those of the author.