Investigating judicial corruption: Whose remit – DSS or NJC?

The furore generated by the searches and arrests of several judicial officers by the Department of State Services (or is Department of State Security?) has refused to die down, even after their release on bail. The main argument against the raids appears to be the alleged usurpation by the DSS of the functions of the […]

The furore generated by the searches and arrests of several judicial officers by the Department of State Services (or is Department of State Security?) has refused to die down, even after their release on bail. The main argument against the raids appears to be the alleged usurpation by the DSS of the functions of the National Judicial Council to discipline judicial officers under the 1999 Constitution. According to this argument, only be the NJC possesses exclusive power to investigate judicial corruption under the 1999 Constitution. Is that view correct ? This is the subject of this piece .
The National Judicial Council is one of the Federal Executive Bodies established under Section 153(1)(i) of the Constitution, and its composition and powers are as contained in Part 1 of the Third Schedule to the Constitution; Paragraph 21(a)-(d) thereof sets out the scope of the powers of the NJC as, inter alia, to exercise disciplinary control over the following judicial officers.
 Judicial corruption is a criminal offence by virtue of Sections 98, 98A, 98B, 98C & 98D of the Criminal Code in force in the seventeen states of Southern Nigeria and Sections 115-123 of the Penal Code in force in the Nineteen Northern States. To that extent, it is trite law that where conduct amounting to a criminal offence is alleged against a person, such a person should be tried in a court of law and – unless the person admits the allegation – no other investigating panel, commission or tribunal will do: SOFEKUN vs AKINYEMI (1981)2NMLR135; EGBUNIWE vs. F.G.N.(2010) 2 NWLR pt.1178 pg 348; UDO  vs. C.R.S.N.C (2002)FWLR pt.104 pg.66. I submit that the implication of this principle is that NJC is incompetent to investigate any criminal allegation against a judicial officer – unless that officer admits it. Where he denies it, the jurisdiction of the NJC will be ousted and the appropriate investigatory agencies to take over are the Police, the ICPC, the EFCC, and – depending on the nature of the alleged offence – the NDLEA or any of the three security agencies established under the National Security Agencies Act, Cap. N74 LFN 2010, including the State Security Services, now known, apparently, as the Department of State Security (or Service), the DSS.
This law came into force as a Decree promulgated by the military regime of General Ibrahim Babangida in 1986, It is, therefore, an existing law under Section 315(1), (2) & (4)(b) of the 1999 Constitution. It has, however, acquired an extra-ordinary status under the Constitution by virtue of Section 315(5) of the Constitution.
The Department of State Security (or Department of State Service), DSS, is not, in terms, one of the agencies created by the NSA Act. However, given that the functions which it presently performs are similar to those conferred on the State Security Service by Section 2(3) of the NSA Act. It can be seen that the purview of the SSS (now DSS) is “internal non-military security of Nigeria”. It is clear that in conducting the raids and arrests, the DSS conceived its mandate of preventing and detecting any crime against the internal security of Nigeria, to include investigating allegations of judicial corruption.
The question is: assuming the mandate of the DSS includes judicial corruption, is that power co-extensive with that of the NJC to exercise disciplinary control over judicial officers or are they mutually-exclusive? I believe this question is at the heart of the debate. I believe that, whilst the NJC can properly exercise disciplinary control over judicial officers, that power does not extend to investigating criminal allegations such as judicial corruption, which are within the purview of security agencies, such as the DSS – assuming that judicial corruption is properly part of the remit of the DSS under its enabling Act; to that extent,  the powers of both organs are mutually-exclusive and not co-extensive.
I submit that the provisions of Section 6(c) of the National Security Agencies Act put the issue beyond doubt as follows: “The President may by an instrument under his hand make provisions with respect to the following matters, that is to say (c) the manner in which the powers of each agency is to be exercised and the conferment on specified officers of the agencies of the powers of a superior police officer.” The powers of a superior police officer clearly include the powers of investigation, search and arrest : See Sections 4, 28 and 29 of the Police Act, Cap. P.19, LFN 2010 and Sections 29(1), 40(2) & 143-157 of the Administration of Criminal Justice Act, 2015. In any event, I submit that by virtue of Sec. 10(2) of the Interpretation Act, such powers of investigating, search and arrest for judicial corruption are implied in favour of the DSS. See ATT-GEN OF CROSS RIVER STATE VS. OJUA (2011), where the Court of Appeal, held that by virtue of Section 10(2) of the Interpretation Act,Cap.123, LFN (2010), “an enactment which confers power to do an act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it”.
I submit that had the framers of the Constitution intended to confer the same status on the NJC in relation to judicial officers, they would have used the same or similar words to convey that intention. To the extent that they did not, I submit that it will be doing violence to Paragraph 21 of the Third Schedule to the Constitution to construe them as conferring exclusive power on the NJC to investigate judicial corruption.
 In their application to judicial officers, I  submit that both the NSA Act and Paragraph 21(a)-(d) of the Third Schedule to the Constitution are co-extensive, except and in so far as the subject matter in any given case does not involve judicial corruption or any other criminal offence; if it does, then, to the extent that the NSA Act is a special  provision, it will govern the situation and not Paragraph 21 of the Third Schedule to the Constitution, which, despite being a constitutional provision, will nevertheless, be inapplicable, given that it deals generally with the exercise of disciplinary control over judicial officers.
In  a nutshell, therefore, I submit that the NJC does not have jurisdiction to investigate judicial officers accused of committing criminal offences, including judicial corruption, and that only the Police or other duly authorized security agencies – such as DSS – possess such powers; furthermore, the powers of the DSS to investigate, search and arrest judicial officers for official corruption, even if not expressly conferred by statute, are reasonably necessary to enable the DSS to carry out its statutory mandate of preventing and detecting any crime  against the internal security of Nigeria – including judicial corruption: by virtue of Section 10(2) of the Interpretation Act, such powers are implied in favour of DSS  in its enabling statute, the NSA Act.
Sani wrote this piece from Abuja.