Real reasons DSS, NJC are at war

How the battle began

LANRE ADEWOLE takes stock of a raging constitutional fight in which all may be losers when the war is over.

THE purported cleansing of the judiciary of corruption that saw the Department of State Services (DSS) invading the homes of senior judges of superior courts of record penultimate Friday midnight and arresting a total of seven, has now narrowed into a contest of supremacy between the DSS and the National Judicial Council (NJC), a judicial body, incidentally empowered by the 1999 operational constitution to, among other functions, fight corruption within the judiciary.

Though DSS is a department in the presidency, the contention with the NJC, is yet to fully snowball into executive/judiciary tango, considering the covert collaboration between the two heads of the arms of government since the controversial arrests took place. Before President Muhammadu Buhari travelled abroad, Sunday Tribune learnt that two separate “fruitful” meetings took place between him and the outgoing Chief Justice of Nigeria (CJN), Justice Mohammed Mahmud.

The outcome of the first and second meetings penultimate Saturday and last Monday, was said to have been responsible for the delay in the last Monday planned arraignment of the arrested seven judges, including two justices of the Supreme Court, who are now on administrative bail. News had filtered in while the valedictory service for retired justice of the apex court from Nasarawa, Justice Suleiman Galadima was on that the DSS was about moving the judges to a Chief Magistrates at Life Camp, Abuja for arraignment with a view to procuring proper detention order to keep them in Kuje prison for a minimum of 21 days. The leadership of the judiciary had quickly mobilized the national leadership of the Nigerian Bar Association (NBA) and other senior lawyers available at the event, to go and defend them and possibly secure their bail, though the judges were granted administrative bail the Sunday after their arrest.

The arraignment was reportedly halted by Buhari having been briefed by Mahmud of certain alleged indicting moves, acts and consultations of some key cabinet members, including the raiding security agency.

Sunday Tribune was told that “Baba (CJN) didn’t mince words with the president. He said everything he knew about all the bribe-for-judgement saga to him (Buhari).” The media had been awash with the said report, though the claims on the said content, have been slightly varied.

Armed with the said report, Buhari reportedly directed the DSS leadership to reply to the issues raised therein and halt further actions, especially on the four serving judges, including the two from the apex court, among the arrested seven. The presidential directive is also said to be responsible for the stay of action on the fresh six new petitions sent to the DSS by the Attorney-General of the Federation and Minister of Justice, Abubakar Malami SAN, against serving judges. The alleged arrest of two of them, could not be officially verified.

Not to be left out, the Economic and Financial Crimes Commission (EFCC), whose function the DSS had been accused of usurping, has also disclosed that eight judges are being investigated and would soon be charged to court, one of who is among the arrested seven. Two court registrars are also said to be under the radar. Until Buhari, who obviously endorsed the initial raid, gives the go-ahead for the next line of action, the serving judges under alleged corruption probe are condemned to be making the daily appearance ordered by the DSS leadership at its headquarters in Abuja, spending close to 10 hours on daily basis.

Expectedly, the public is divided on the propriety or otherwise of the midnight raid. Issues have been raised concerning the constitutionality of DSS’s involvement, mode of arrest of the judge, timing and execution which was likened to the condemnable Gestapo style. Stakeholders in the judiciary, particularly the Bar, have been ferocious in their support for the NJC which is now seen as the symbol of the struggle for judicial independence which the CJN said the executive through the DSS tried to undermine with the raid.

Sunday Tribune can confirm the unflinching support of former NBA president, former Chief Justices of Nigeria among others. Efforts are also ongoing, going by Sunday Tribune findings, of a peaceful way out of the logjam, with nearly all the stakeholders in the justice sector agreeing on the unconstitutionality of the raid and usurpation of the functions of NJC by the DSS.

To buttress this point, arguments have been made to the facts that of the seven justices invaded by DSS, three have already been exited from service recently by the NJC.

The argument was further made that the raid was allegedly targeted at stopping the most senior justice of the Supreme Court, Justice Walter Nkanu Onnoghen, from becoming the CJN in November, by deliberately discrediting the judiciary, particularly the Supreme Court, paving the way for a total clear-out of nearly all the senior justices of the court, for new blood, mostly senior lawyers as allegedly advised by a professor of Law who is very close to the Buhari administration. He reportedly referred to nearly all the apex court justices as “rotten heads”. The professor was also very critical of some of the judgements emanating from the court in recent time.

Incidentally, a cabinet member (names withheld) at a meeting with media leading lights in Lagos, days after the raid, confirmed that ceteri paribus, the Buhari administration was not disposed to having Onnoghen who has been nominated by the NJC to Buhari as the next CJN, starting from Novembe 10.

“Honestly, we were advised to get our own CJN elsewhere” the minister said to the chagrin of a media owner from the South-South who queried if the judiciary had become an annex of the executive which can foist anyone on it (judiciary) as the head. The media owner asked the minister to convey the total disapproval of the Nigerian media to any arrangement or reform that would deny the Southern part of the country the headship of the judiciary after a 29- year wait and seven consecutive CJNs from the Northern part.

In recommending Onnoghen last Tuesday, NJC headed by Mahmud described him as “the most senior, most able and most competent to be the next CJN.”

The minister, however, said nothing was sacrosanct about NJC’s solo recommendation, adding that the final security clearance expected to take place this week at the DSS Abuja office, would determine whether Onnoghen would be or not. In normal times, an average CJN-nominee reportedly keeps date with the DSS for about two hours, but with the unusual times in the polity, a Supreme Court source who is the know told Sunday Tribune that “there are real fears concerning his outing at the DSS.”

Despite the concerns, Onnoghen’s headship of the judiciary for the next four year when he would be 70 years is almost a fait accompli, except something extraordinary is unearthed against him during the security screening. Even the minister conceded that the likely hues of ethnicity and religion which he said, had been the bane of the nation, and the perceived biases that would be read into a Southerner being stopped from ascending the position, could be a major consideration in letting the position go to the South. He however insisted that Buhari as the appointing authority holds the aces and could reject the nomination. He then threw a question that appears innocuous to the exclusive gathering “what if the new CJN is from South-East?”, with a couple of the media chiefs saying, “let them follow the pattern they have been following when seven Northerners were appointed”. That pattern is succession-by-seniority.

On the night of the raid, Onnoghen’s home was also invaded by the DSS officers, but the defending minister argued that it was a mere mistake. His argument wasn’t really bought by the gathering. As of last week, a car was visibly parked some metres away from Onnoghen’s home. A source confirmed to Sunday Tribune he was under security surveillance.

As the controversy rages, both the DSS through other agencies of the executive arm and NJC have been trying to out-point each other in getting the public to be on their side in the burgeoning crisis. Apart from other media and public outlets, both parties were invited by the leadership of the NBA on Thursday to make their cases. The executive was represented by Malami while the secretary of NJC, Halilu Danladi spoke for the council. Danladi reportedly made a mince-meat of all Malami’s arguments that the minister had to quietly excused himself from the meeting. Having failed to convince the NBA to shift position.

How the battle began

DSS and NJC started their tango exactly on 26th February, 2016 when the former sent a memo with Reference No DGSS.71/3161 to Justice Mahmud, accusing Justice Muazu Pindiga of Gombe judicial division of alleged corruption on his involvement in the Rivers State election petition tribunal as the former chairman before he was removed. In the 18-paragraph memo, personally signed by the Director General of the DSS, Mamman Daura, CJN was “strongly advised that immediate necessary administrative and judicial measures be taken on him, including appropriate sanctions and trial to set a precedent to others of his like.”

Then began a back and forth between DSS and NJC, with another judge of the Federal High Court, Justice Nnamdi Dimgba being added to the equation.

In a memo from DSS dated 5th August, 2016 with Reference No LSD.158/2/31, the Service accused Dimgba who had earlier ruled against the DSS in its case against Umar Mohammed, of alleged corruption, recommending to the NJC “to urgently investigate the compromise and gross misconduct by the judicial officer as his conduct falls short of the expectations of the profession and defeats the culture of probity, transparency and equity which this current administration stands to entrench”. The memo was signed by Ahamed Ahmad for Daura.

Others documents detailing their conversation, disagreements and collaboration showed that while the NJC was given to collaborating with the DSS by acceding to most of its requests on the two judges who were dragged before the council, it found objectionable the dictating tone of the DSS. Words were not minced in communicating same to the Service. When it requested that proceedings of the council meeting exiting three judges should be sent to it, NJC replied that only a court of law could so direct the council. DSS while justifying the raid, said its relations with NJC had broken down as the council was not seen as an ally in the fight against corruption. Council replied that the DSS, a mere department in the presidency, was trying to take away the independence of the judiciary, a separate arm of government like the whole of the executive.

The last request from the DSS dated October 10, 2016 and signed by the same Ahamed Ahmad for Daura, directing the NJC to indefinitely suspend all serving judges arrested in the raid, a request obviously rejected by the council at its 11th October emergency meeting, is a pointer to what the relations between the two institutions would look like, going forward. Without mincing words, DSS said NJC wasn’t a partner-in-progress on the anti-corruption, even while making a demand of the council. The council, however, has been flaunting what it considered a glittering anti-corruption fight in the judiciary, culminating in the dismissal of 12 judges, 38 compulsorily retired and 82 reprimanded through suspension, caution or warning).

It was also a defiant council speaking through Soji Oye, its spokesperson that “the Council vehemently denounces a situation whereby the psyche of judicial officers in the federation is subjected to a level where they would be afraid to discharge their constitutional judicial functions, without fear or favour, intimidation, victimization or suppression.

“The Council will not compromise the integrity and impartiality of the Judiciary.”

It ended by recommending executive want-away, Onnoghen, throwing its entire hat in the ring with the DSS. As the two unyielding institutions go head-to-head, the nation can only hold its breath for the corollary damage.