Much ado about arrest of judges/justices (II)

Issue three

DSS men breaking into the houses of the suspected judges/justices, by force.

On the authority of Section 149(2) of the ACJA 2015, where access into the building, thing or place cannot be so obtained, the police officer or other person executing the search warrant may proceed in the manner prescribed by sections 9, 10, 12 and 13 of the ACJA.

Section 9(1) (a) talks of the reasonably necessary force by the arresting officer. Section 12(1) States that the person to be arrested must allow the arresting officer, to gain entrance, failing which the arresting officer may break open any outer or inner door or window of any house or window to gain entrance to affect search or arrest. See section 13 for further breaking by force details. See section 144 for details on search warrant.

With contents of the press briefing granted by the DSS on October 8, 2016, and without more, it appears the men of the DSS acted within the law by breaking into the houses of the affected judges, by force, to search and arrest some of them,

The law as it is – De Lege lata

The answers to the issues above, especially the laws quoted, appears to represent the law as it is. Some of these laws were clear while some are not. It is the current law that search warrant and warrant of arrest could be issued and executed at any time and any day including Sunday and public holiday.

Formerly, the position of the law was that search warrant and warrant of arrest could be issued and executed between the hours of 6am and 6pm. But the National Assembly in their wisdom, have changed the status quo. The legislative intent could probably be that, crime rate is increasing daily and the world has become such a global village that, through the use of modern day technologies, especially means of communication and transportation, a suspect may take advantage of the loop holes in the time and days of execution of search warrant and warrant of arrest, and run away from jurisdiction to make himself unavailable for arrest.

The law as it should be (De lege ferenda)

Clearly, the way I personally think the law should be is that, searching the premises and arrest of crime suspects who are not in the scene of crime, should not be conducted in the dusk. The exception would be where practical caveats are endorsed in the corpus juris establishing a crime or in the Constitution. Nowadays, destructions through bombs and dangerous devices are common. What if destructive substances are thrown into the officials to wipe off everybody at the scene, since it was in the dusk where visibility was poor? Who would be responsible for the catastrophe – Presidency or the taxes levied on the Nigerian public; the state governor or government of the state where operations took place? Apparently, the problems such operations would create would be more that the problem of bribery and corruption by the suspected justices/judges who may after all be innocent. If such operations are to be carried out in the dusk, then I would strongly submit that concrete and practicable conditions should be attached to the enabling provisions on arrest of suspect any time, any day!

Furthermore, the provisions of S. 2(3)(c) of the ACJA 2015 states that SSS shall be charged with responsibility for such further responsibility affecting internal security within Nigeria as the National Assembly or the President, as the case may be, may deem necessary. This is too omnibus and appears too wide to give rise to technical justice. It is impossible to completely get rid of loop holes in laws, because it is impossible to foresee all human actions or all future eventualities, at a time. But if the loop holes are so many and of damning consequences, that the whole enactment is perforated to the extent that we cannot see or read our ways into substantive justice, then, we need not cry foul if security of lives and properties are no longer safe. In such situations, the so called protection of internal security of Nigeria becomes a charade!

S.2 (4) of ACJA states that, all the provisions of S.2 (1) (2) & (3) shall have effects notwithstanding the provisions of any other law to the contrary or any matter therein mentioned. See also S.7 (2) of the Act. Does this mean that ACJA is superior to the Constitution which is the grund norm of the land? Never! See Section 1 (1) & (3) of the 1999 Constitution as amended. One wonders why such a supremacy clause should be inserted into a mere enactment, despite the clear constitutional provisions, in this day and age. How is the president or the National Assembly expected to give DSS such a responsible? It’s not in the Act!

For a situation to warrant midnight arrest, it must have been very urgent. Definitely the National Assembly could not have met up with such exigency. If the arresting officers over-zealously carried out such operations beyond their duties, where are the provisions that will determine their fate? Section 2 (5) ACJA defines “Classified matter” to have the meaning to assigned to it under S.9 of the Official Secret Act. The Act however did not define what internal Security of Nigeria means. Why do we need to resort to sundry private individual interpretations to guess what internal security means? Our laws in this regard needs serious overhaul. Otherwise it would continue to lead to technical justice which is more beneficial to the few, rich or ruling class (the capitalist or bourgeoisie). The majority of the public who can’t afford buying their ways into technical justice, would continue to be victims of insecurity, sufferings and marginalisation. If this is the case, then, the executive, legislature and the third estate in the realm (judiciary) have failed the majority of Nigerians.

Legislative synergy

On this arrest of judges’ issue, while we are waiting for ways to go on the law as it ought to be, we cannot but act on the law as it is. Otherwise, as a nation with nascent democracy, we may do more harms than good to the government and the governed. We need to carefully circumscribe our laws, reasonably make them certain and jealously guard their observance.

It is hereby strongly submitted that one of the veritable solutions to the inconsistencies in our statute books and government policies or orders, is legislative synergy. I have advocated this for Nigeria elsewhere. The synergy could be achieved where the legislature study the context of the existing legislations/laws in toto and consider the effect of any amendments thereon. Legislative synergy also includes a detail and clear consideration by the legislature of the provisions of the constitution on a particular subject matter or the extant judicial precedent, before passing novel statutes or amending existing ones. In this way, the legislators will not only be seen to move the law forward, they will also be actually contributing to the legal, fiscal, social, political and economic developments of the nation.

Where there is consistency in the passage of statutes and government policies, administrative activities will bring positive results, fiscal policies and their effectuations will not be muffled by technicalities and frivolous injunctions. The judiciary will be less tempted by bribery and corruption (if at all they have been) because loop holes in the law would have reduced. The streams of justice will be clean. Then, there would be justice, even if heavens should fall.