By Babajide Oladipo Ogundipe Contributed by Sofunde Osakwe Ogundipe & Belgore From ILO

In the early hours of October 9, Nigerian judges woke to learn that a number of their colleagues, from the Supreme Court to the High Court, had been arrested on suspicion of having engaged in various acts of corruption. The arrests were made by the State Security Service (SSS), a security agency created in 1986 and charged with:

“the prevention and detection within Nigeria of any crime against the internal security of Nigeria; the protection and preservation of all non-military classified matters concerning the internal security of Nigeria; and such other responsibilities affecting internal security within Nigeria as the National Assembly or the President, as the case may be, may deem necessary.”

Some of the arrests involved a certain degree of drama. The Abuja residences of two Supreme Court justices and that of a judge of the Federal High Court were surrounded by SSS personnel and, according to media reports, at least one of the houses visited turned out to be that of a judge who was not under investigation. The front door of the Federal High Court judge’s residence was taken off its hinges, following his refusal to allow SSS personnel to enter. In the Rivers State capital, Port Harcourt, the efforts of the SSS to arrest a Federal High Court judge were thwarted by the intervention of the governor of Rivers State and police officers sent out by the commissioner of police (a federal employee) in that state. There has been speculation as to why the chief executive officer of a state should be so concerned by efforts to arrest a member of the federal judiciary.

At the end of the exercise, seven judges were in the custody of the SSS. Two were justices of the Supreme Court, one was from the Court of Appeal, one was from the Federal High Court and three were from state high courts. By the following evening, all seven had reportedly been released on bail. The Federal High Court judge whose arrest was thwarted in Port Harcourt has reportedly indicated that he no longer wishes to serve as a judge and his whereabouts remain unclear.

The reaction of the Nigerian Bar Association was immediate. The NBA’s president condemned the action as a “Gestapo-style operation” and demanded that the SSS release the judges, whom he described as having been abducted, immediately and unconditionally. The chief justice of Nigeria, who is due to retire in a few weeks, described the occurrence as saddening and deeply regrettable, distressing and unfortunate, when announcing that the National Judicial Council would hold an emergency meeting to discuss the development.

The SSS issued a statement in which it sought to justify its actions, stating that as a result of the arrests and subsequent searches of premises, it had recovered the equivalent of more than $800,000 in cash, in various currencies, from the seven judges it took into custody. The SSS alleged that the arrested judges were involved in corruption and that, when one considers that the judges earn on average less than $5,000 a month, the sums alleged to have been recovered are staggering. Worse still, the judge who escaped arrest allegedly did so with about $2 million in cash. Unattributed reports in the media suggested that this sum was paid to the judge by the governor who facilitated his escape, which would perhaps explain the governor’s concerns. Information provided to the media also indicated that the SSS had been trying to get the National Judicial Council (NJC) to cooperate with it in its investigations into the judiciary, but had been effectively rebuffed by the NJC, which is chaired by the chief justice of Nigeria. The SSS suggested that it had no choice other than to take the action that it did. The NJC on its part denied that the SSS had sought its cooperation.

Observers of the Nigerian judiciary will not be greatly surprised by these allegations. The corruption that the Goodluck Jonathan government has been accused of also includes allegations of serious judicial misconduct, some of which were being addressed and punished by the NJC. However, rather than taking strong action against the few judges who faced disciplinary action, the most common sanctions tended to be compulsory retirement, which left them with an honorary title and pensions, rather than dismissal and criminal prosecution. President Muhammadu Buhari was elected on a mandate that included a promise to act against corruption, wherever it was to be found – the judiciary included.

The condemnation of the SSS’s actions appears, in part, to be based on the argument that the SSS has no statutory power to investigate criminal activity other than that which may threaten the internal security of Nigeria. Presumably, if the action it took is challenged in court, the SSS will argue that judicial corruption is so corrosive that it is indeed a threat to Nigeria’s internal security. Nevertheless, a question that must be asked, and answered, is why the task was not given to one of at least three other law enforcement agencies specifically tasked with policing these types of criminal conduct:

• the Special Fraud Unit of the Nigerian Police Force;
• the Independent Corrupt Practices Commission (ICPC) (its name was changed to the Anti-corruption Commission in 2000, but it seems that the litigation that accompanied the legislation that made the change has led to a case of amnesia); or
• the Economic and Financial Crimes Commission (EFCC), whose functions include “the investigation of all financial crimes” and “the coordination and enforcement of all financial crimes laws and enforcement functions conferred on any other person or authority”, thus making it the “senior” agency in this area of law enforcement.

The EFCC is overburdened and overstretched, while the ICPC has long proved to be somewhat ineffective; and if the police (the oldest of these law enforcement agencies) had proved effective, there would have been no need to set up the other agencies. Although statistics are unavailable, experience suggests that the activities of the Special Fraud Unit result in few prosecutions, never mind convictions; and that – like far too much of the Nigeria Police Force – the unit is most frequently employed as a tool to pursue private agendas, rather than as an effective law enforcement agency. Certainly, the federal government must have had little or no faith in these other agencies to have entrusted this task of tackling judicial corruption to the SSS.

Inevitably, given the manner in which the raids were carried out – the SSS has never been known to pay great attention to legal niceties – at least one of the judges in whose homes significant amounts of cash were reportedly found denies that any cash was found. The searches that resulted in the discovery appear to have been conducted in his absence (he had taken refuge in his bedroom and by the time the SSS personnel forced their way in to that room, the search had already been conducted), so the only persons present when the searches were conducted were SSS personnel. In addition, that particular judge has previously issued decisions that the government did not like; he claims that he has been targeted by the government, and by the federal attorney general – with whom he has a history of conflict – as a result.

One of the Supreme Court justices has further alleged that a sitting minister had approached him with offers of bribes and requested that he assist in procuring decisions favourable to the ruling party, the All Peoples Congress. No explanation appears to have been offered as to why this information is being disclosed at this particular time or of the steps (if any) that he took when he was approached.

Meanwhile, concern is reportedly rife in certain parts of the judiciary and the legal profession. There are many anecdotes about judicial corruption and allegations that this is often facilitated by member of the legal profession. It is speculated that the arrested judges may implicate others; one of the Supreme Court justices has reportedly made statements to the SSS admitting having received bribes and implicating other Supreme Court justices in relation to a case that involved the governor of Rivers State. Should this turn out to be true, at least three other justices from the panel of seven which decided that case may not be sleeping well over the forthcoming days and weeks. The SSS has indicated that investigations into at least another eight judges are ongoing. Should these result in prosecutions, it will be interesting to see how they are presented and which judges will be called upon to preside over the trials. In the interim, all of the judges – with the exception of the judge who has reportedly indicated his intention to quit the judiciary – continue to sit and to hear cases.

For further information on this topic please contact Babajide Oladipo Ogundipe at Sofunde Osakwe Ogundipe & Belgore by telephone (+234 1 462 2502) or email ([email protected]). The Sofunde Osakwe Ogundipe & Belgore website can be accessed at www.sooblaw.com.