Judges Have No Immunity From Arrest

Judges Have No Immunity From Arrest

Wednesday, October 12, 2016 1:38 pm

DSS operatives

DSS operatives

By James Ikechukwu

I am not a member of the All Progressives Congress (APC). As a matter of fact,
I do not like the party. I dislike the Peoples Democratic Party (PDP) even more.
But on the war against corruption, I support wholeheartedly the Buhari

In early 2008, Kenya erupted into violence in which several thousands of people
lost their lives. You know why? The people vowed they would not go to the
courts to seek electoral redress. They dubbed the patently corrupt courts the
“Kibaki courts”. Two years after, it was the turn of the unabashedly corrupt Cote
d’Ivoire court to set the nation on fire by declaring that Laurent Gbagbo had
won a presidential election, which the whole world knew the opposition leader,
Alassane Quattara, had clearly won.

The country’s electoral body had declared
Quattara winner but the corrupt Constitutional Council, ruled otherwise. The
scale of blood-letting that follows is still very fresh on our minds. People blame
Gbagbo for the crimes against humanity and civil war but the real culprits, who
undermined the Cote d’Ivoire’s national security were the corrupt judges.
Even here in Nigeria, it has been acknowledged that the loss of faith in the
judicial system is what led to the post-election violence of 2011 and other
intermittent acts of violence or recourse to self-help across the country.
Section 15 (5) of the 1999 Constitution (as amended) declares emphatically that
“The State shall abolish all corrupt practices and abuse of power.” The word
“shall” is mandatory.

Therefore, all lovers of the security, stability and
prosperity of the Nigeria must join hands with the current government to wage
war against corruption in our judicial system. This is not the time to play
politics. We must not allow corrupt judicial officers to push the generality of
Nigerians to regard self-help as the last hope of the common man or any citizen
before we act.

The leadership of the Nigeria Bar Association (NBA) says the invasion and
arrest of some judges in the wee hours of Saturday, 8 October, 2016 is
unconstitutional. With due respect to the learned SANs, which aspects of the
constitution or laws of the federation were breached by the Department of State
Services (DSS)? A combined reading of the extant Criminal Code, the
Administration of Criminal Justice Act (ACJA, 2015) and of course, the
Constitution of Nigeria shows the DSS has acted within the ambit of the law.

For example, Sections 12 (2) and 13 of ACJA (2015) empowers a law officer to
break into any house for the purpose of effecting an arrest of a suspect who
refuses to co-operate with the officer. I should like to amplify that any private
citizen of Nigerian, male or female, is protected by law (s.23 ACJA) to effect
the arrest of any suspected criminal and hand him/her over to a prosecuting
authority. In the same vein,
Section 43 (1) ACJA says: “A warrant of arrest may be executed on any day,
including a Sunday or public holiday.” And s. 148 of ACJA states that “A search
warrant may be issued and executed at any time on any day, including a Sunday
or public holiday.”

I have heard the argument by a couple of learned colleagues that certain
provisions of the ACJA 2015 are in breach of the constitution. I do not agree.
Even if that were to be correct, until the Act is set aside by a court of competent
jurisdiction, it remains a law in force and valid to all intents and purposes. And
so, such an argument is of no moment at this momentous turning point in our
nation’s history.

Again the National Judicial Council (NJC) is only empowered to discipline
judges but the body cannot arrest, prosecute or sentence any judge found to be
involved in corruption to a term of imprisonment. Judges have no immunity
from arrest or prosecution for any crime committed. Only the President, Vice
President, Governors and Deputy Governors have immunity from arrest and
prosecution while in office.

Law enforcement officers must therefore be allowed
to do their job. In this connection, one must condemn in unmistakable terms, the
attempt by Governor Wike of Rivers State to prevent men of the DSS from
performing their duties in Port-Harcourt on the said early hours of Saturday.
This amounts to obstruction of justice, which in itself is a crime. Indeed, Wike
should be investigated and charges preferred against him after the expiration of
his tenure. It is trite in law that time does not run against the state.
Judges, just like the legislators, can however not be arrested based on their
pronouncements in the courts or floor of parliament as the case may be.
Finally, the arrest of judges is not and does not constitute a threat to democracy.

The real threat to democracy is corruption, especially in the Bench. In the
cacophony of reactions to the arrest of some judges suspected to have
committed acts of corruption by DSS, we must never be deceived into forgetting
the substance by chasing shadows. Were those judges guilty of corrupt practices
or not? Were the funds recovered from them a product of sleaze and corrupt acts
or not? Questions like these should our preoccupation.

It is high time we rid the Nigerian judiciary of corrupt elements and saved this
country from sliding into the Hobbesian state of nature. In that state, life is
“solitary, poor, nasty, brutish, and short.”

We should support President Muhammadu Buhari on the course of his
administration to halt the dangerous slide to the state of nature.

**Barr James Ikechukwu writes from Lagos

Join The Conversation

What do you think?

This site uses Akismet to reduce spam. Learn how your comment data is processed.