NASS: How not to violate separation of powers

Group Politics Editor, TAIWO ADISA, examines the position of the National Assembly and the resolve to amend the enabling laws of DSS and other security agencies.

THE raid on the homes and arrest of some judges of the Supreme, Appeal and High Courts is a discourse that will not go away quite soon, with different questions already being raised and anticipated regarding what many have described as a new development in the polity of the country.

There are questions of the law; there are questions of corruption and issues of procedure. Surprisingly, however, the judiciary, which is the at the receiving end of the raids and the questions, have appeared to be divided over the matter.

But the National Assembly, through its actions following the reported sting operation carried out by the men of the Department of State Security (DSS), has appeared not to be shying away from its oversight functions on the matter. On Tuesday, the two chambers rose from their sittings with different verdicts that all the same pointed at the same direction—condemnation of the decision of the DSS to raid and arrest the judges over corruption allegations.

The House of Representatives, which came hard on the development, decided to summon the Director-General of the State Security Services (SSS), Lawal Daura.

The lawmakers, following the adoption of a motion on matters of urgent national importance, set up an adhoc committee to investigate the clampdown on the judges and asked the DG to appear before them for further explanations.

In a motion moved by Hon. Chinda Ogundu and supported by his colleagues, the House resolved to probe the arrests and prevent the government from sending wrong signals to the third arm of government, while some lawmakers asked that the principle of separation of powers should be respected.

At the Senate, the debate was more exhaustive though the lawmakers refused to summon the Director-General of DSS. Senate President Bukola Saraki, who presided over the sitting, asked President Muhammadu Buhari to prevail on security agencies to abide by the rule of law in their operations.

After the debate on the issue, the Senate, among other issues, resolved to amend the laws that establish some security outfits including the DSS.

The condemnations of the raid in the Senate were sequel to the adoption of a motion by Senator Joshua Lidani, who raised questions about the arrests. The senators also urged the president to call all security agencies to order and direct the full observance of the rule of law in the discharge of their duties.

While leading the debate, Lidani had said: “The Senate notes with dismay and disapproval the recent criminal invasion, assault, intimidation, indiscriminate arrest and harassment of serving judicial officers by the operatives of Department of State Security Services in a widely reported national operation.

“The Senate is also invited to note that the DSS in a press briefing held on Saturday claimed that the affected judicial officers were arrested based on allegations of corruptions and other forms of misconduct, matters which are under the constitutional responsibility of the National Judicial Council as set out in paragraph 1 part 1 with the 1999 constitution of the Federal Republic of Nigeria.

“Also aware that it is on record that the NJC under the leadership of the Chief Justice of Nigeria, His Lordship, Hon. Mahmud Mohammed, GCON has been creditably discharging his constitutional responsibility of exercising disciplinary control over judicial officers as a result of which a number of judicial officers found wanting in the discharge of their duties were recommended for various disciplinary measures including dismissal.”

He cited the National Security Agency Act, adding that: “the DSS has abandoned its primary responsibility of prevention, detection of crimes against internal security as stipulated under the national security agencies Act and now veered into arbitrary arrest of judges contrary to processes and procedures on discipline of judicial officers as applied under paragraph 1 part 1 third schedule to the 1999 constitution of the Federal Republic of Nigeria.”

He further said: “The general duties of the National Security Agencies, subsection 3 says that State Security Services shall be charged with the responsibility for one: “The prevention and detention within Nigeria of any crime against internal security of Nigeria and two: The protection and preservation of non-military classified matters concerning the internal security of Nigeria.”

Senator Dino Melaye who seconded the motion also told the Senate that “while I support the fight against corruption, it is a misnomer; it is absurd for the Department of State Security Services to operate outside its mandate. The responsibility of the State Security Services is clearly defined in the National Security Agencies Act 2010, Cap 350, which states clearly that the state security services shall be charged with the responsibility for the prevention and detection within Nigeria of any crime against internal security of Nigeria. I emphasised the “Internal Security of Nigeria.

“The second responsibility as enshrined by the law setting up the DSS states that the protection and preservation of non-military classified matters concerning the internal security of Nigeria,” Melaye said.

The chairman of the Senate Committee on Anti-Corruption and Financial Crimes, Senator Chukwuka Utazi also told his colleagues that the raid had painted Nigeria black before the international community. He stated: “This last weekend was the most difficult the country has had. My spirit is very hurt. I can feel the pulse of Nigeria over what has happened. I do not know how the international community will see us after this. It appears the DSS is following the body language of the president of this country rather than following the rule of law.

“To go in the wee hours of the morning and use force to break into a judge’s house is condemnable. The whole world is watching the Senate to see how we will react. This is pure dictatorship and it should not happen. Enough is enough. This is unguarded dictatorship. We should not treat this issue likely.

“We have always condemned corruption in this 8th Senate. The NJC has powers to do what the DSS is doing right now. To take this approach the DSS is taking is condemnable.”

The Senate Minority Leader, who is also a former governor of Akwa Ibom State, Senator Godswill Akpabio, in his contributions, also said that the current anti-corruption war has painted former governors as corrupt people, warning that such toga should not be extended to the judiciary.

Akpabio said: “We know that there is separation of powers; that is why in the judiciary, we have NJC. This is a very touchy issue and so many people run the risk of making comments and having security agents surround their houses tomorrow. We must not speak from both sides. While supporting the fight against corruption, we must bear in mind the need to safeguard our democracy. Today, it is hard for a former governor in Nigeria to be respected outside Nigeria. They believe that every former governor is corrupt.

“They have extended the toga to the judiciary and this means a lot. It means people will not take seriously any judgment from our courts. If this government fails, it means we have all failed. We have to advice the government on what it must do. I am very worried about the method. We must speak out. If we do not speak up and we think it is okay, one day, the rain will fall on another roof,” Akpabio said.

Senator Suleiman Hunkuyi also supported Melaye’s position, adding that every agency of government created by law must operate within the ambit of the law. He said: “This chamber and the National Assembly, from which this statue of the DSS originated, must call on other agencies to remain within the mandate provided by law. The fight against corruption is for every patriotic Nigerian. The National Assembly cannot provide the law with one hand and look the other way.

“Every agency should operate within the ambit of the law; this misnomer that has now emanated provides the National Assembly the opportunity to stress that corruption has assumed a new dimension. However, nobody will justify the procedure or method used in prosecuting corruption,” Hunkuyi said, adding that “we must not forget the fact that the country is run under the principle of separation of powers. The judiciary needs to be independent in order to safeguard the sanctity of the country’s democracy.”

Senate Deputy Leader, Senator Bala Na’Allah, however, asked for caution, saying that his colleagues need to investigate the alleged invasion before taking a final position on the issue.

“The massive support of Nigerians to change government in 2015 was because of their belief that corruption will be fought. I am saying this to buttress the fact that the National Assembly is fully in support of government’s efforts to fight corruption. There is a reason why the discipline of judges is domiciled with the NJC. If the framers of our constitution thought it wise to deal with the issue of judiciary misconduct, we should respect it. Something somewhere has gone wrong. I will reluctantly support the move that we should condemn it.”

In his ruling on the motion, the Senate President stated that the war against corruption must be fought with all fervor, but insisted that the war must follow the rule of law. “Yes! We must eradicate corruption from all spheres of our society and this is a matter that we must continue with. I think the National Assembly has been playing its role to continue to support government in its fight against corruption.

“We must ensure that this fight against corruption is within the rule of law, any act of anti-corruption that goes against the rule of law does not help the anti-corruption fight. That is why this action, as has been seen in this manner is condemned by the Senate and all agencies of government must ensure that they act within the rule of law,” Saraki said.