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A Context Of The Illegality Of The Judges’ Arrest

 

Aladejare Adetokunbo

 

In Yoruba land, as it is with a lot of other, if not all tribes in Nigeria, there are masquerade festivals. In actual fact, these festivals can be so large that the Honourable Minister of Information, Lai Mohammed, suggested that employment generation could come from dressing and undressing masquerades at these festivals.

The reason why I wanted to use a Yoruba masquerade for my analogy is not to see where the employment opportunities lie. That may be for another day. A traditional Yoruba masquerade goes about with canes and randomly flogs people who follow him. The age of the masquerade doesn’t matter, as when he is covered up, he’s seen as a higher being and as such he can do as he pleases. The greatest disrespect anyone can show to a masquerade is unveiling him in full public glare. In traditional Yoruba parlance, it is generally regarded as a bad omen and a pathway to greater evil.

This leads us to the “unlawful” arrest of the Judges of the Supreme Court, Court of Appeal and various Federal and State High Courts on Friday the 7th of October, 2016 by men of the State Security Service (SSS). There have been arguments and counter-arguments as to the legality or otherwise of these arrests, and in reaching a conclusion, 2 enactments should be considered; the 1999 Constitution of the Federal Republic of Nigeria, and the National Security Agencies Act (NSAA) of 1986. By virtue of the provisions of Section 3(a, b and c) of the NSAA, it is as clear as day that the events that started on the night of 7th October and concluded the following day were carried out illegally by men of the SSS.

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The reason why this is an illegality is simple. By virtue of the provisions of the 1999 constitution, the NJC is set for the purpose of (but not limited to), discipline of Judges of superior courts of record, for misconduct arising from their duty as Judges. Going by the facts of this matter, the executive arm of government should have waited for the NJC to take action and then acted on its recommendations.

However, the damage has already been done whether the action of the SSS was legal or not.  The SSS ditched the rule of law and due process in carrying out its actions and in any society where the rule of law is jettisoned, a foundation for lawlessness is laid and blocks of human right breaches by security agencies built. Worse off is the fact that it’s the institution that was saddled with the responsibility of jealously guarding the rule of law and protection of human rights and liberties that has been desecrated. It’s like a strategy in times of warfare, ‘take out the head and the body crumbles’.

Coming after a period where the President had bitterly complained that the judiciary was his biggest headache in the fight against corruption, it is important that the rest of the bench do not bow to the pressure and intimidation that the spotlight occasioned by the recent events will bring. The judiciary must continue to be impartial, professional and adjudicate based on evidence before it without fear or favour as the arrest of the Judges may be interpreted to be the Executive arm of government’s way of forcefully getting the judiciary to do its bidding.

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The fight on corruption is an important one, as corruption is an epidemic that has eaten into the very soul of our existence as a nation. However, the war will never be won with disregard for the rule of law and due process as doing so will lead to the breeding of more corruption.

It is important in this ‘fight’ that diligent investigations and prosecutions are carried out by the agencies of government responsible to avoid the lack of evidence to prove corruption cases beyond reasonable doubt in the court of law. While there certainly may be corrupt elements within the judiciary, majority of cases that give the judicial arm of government that tag are actually caused by incompetent prosecution and a lack of substantive evidence to satisfy the burden of proof.

Where does this leave the Judiciary in particular and the legal profession in general? These latest events have left members of the Bar and Bench having to salvage whatever is left of an already battered image of the profession in the court of public opinion.

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Repairing the damage done is something that will take a lot of time, sacrifices and reforms at a time when the judiciary and the process of obtaining justice is under more scrutiny than ever before in the history of our nation. Looking for solutions to ensure speedy and timely conclusions to cases will be a good place to start. How these ‘reforms’ will be carried out is yet to be seen, but it’s important all members of the profession come together to fashion out means of restoring public confidence in an arm of government that must not fail the people.

In the meantime, the judiciary’s masquerade has been undressed in public with the purpose of putting it to shame, and it has to salvage what is left of its reputation and respect, purging itself of the elements and practices holding it back, and go back to being an institution that is regarded as the last hope of the common man. Undressing the masquerade is a bad omen, but it’s not the end of the world if the masquerade works hard at the redemption of his image.

 

 

Adetokunbo is a legal practitioner with Ogbeide Associates. He writes from Abuja.

For more engagement on the topic, he can be followed on twitter @adetokunbo90

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