Midnight raiding and weekend arrest of judges by DSS are correct in law-Prof Sagay (SAN)

prof-sagay

…Says the law permits minions of law to pull down outer doors of recalcitrant suspects

…Says those criticising DSS’ modus operandi should go back to law library to update themselves

Foremost legal luminary, erudite scholar and highly respected member of the inner bar, Prof Itse Sagay (SAN) has said that the recent midnight raiding of houses of serving and retired judges of different levels of court and their arrest between Friday night and Saturday morning were correct in law.

Prof Sagay who said that contrary to the wrong information being circulated by respected senior lawyers who should know to the effect that search warrant could only be executed between Monday and Friday and between 6am and 6pm, said search warrants could actually be executed any time of the day including midnight and any day of the week including Saturday and Sunday.

The erudite scholar also said that there was nothing barbaric, strange or illegal in pulling down the outer doors of a suspect if he is recalcitrant like the judge whose door was dug out to effect the search of his house before his eventual arrest.

Sagay who said that he was not talking magical law provided relevant sections of the 1999 constitution and those of varying statutes to buttress his claims, adding that those who criticized the modus operandi needed to update themselves.

He spoke through a document titled ‘Fact Sheet’

Prof Sagay (SAN) also said that the National Judicial Council (NJC) itself got it wrong when it arrogated to itself the power that was not donated to it by the 1999 constitution.

He said the NJC though, a creation of section 153 of the 1999 constitution. is just a mere administrative body without legal powers to investigate or try crimes, explaining that the offence being investigated by the DSS fell outside the constitutional mandate of the NJC.

Sagay also said that the law which set up the DSS was clear that it could investigate crimes if it was so charged either by the National Assembly or the Presidency contrary to what few individuals wanted Nigerians to believe.

To give a robust base to all his clams, the Presidential Advisory Committee against Corruption headed by Prof Sagay has documented what it called a fact-sheet to educate Nigerians about the constitutionality and legality of the midnight raiding of the judges’ homes, the pulling down of outer door of an alleged recalcitrant suspect and the weekend arrest of the judges nationwide.

The fact-sheet containing the relevant provisions of the constitution and statutes was prepared in form of a question and answer. Sit back and enjoy the law according to Prof Sagay!

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FACT-SHEET ABOUT DSS RAIDING OF JUDGES’ HOME

CAN SSS ARREST FOR ECONOMIC AND FINANCIAL CRIMES

Section 2(3) of the National Security Agencies Act 1986, State Security Service is charged with responsibility for –

“(a) the prevention and detection within Nigeria of any crime against the internal security of Nigeria;

(b) the protection and preservation of all non-military classified matters concerning the internal security of Nigeria; and

(c) such other responsibilities affecting internal security within Nigeria as the National Assembly or the President, as the case may be, may deem necessary.”

Section 315 (3) of the Constitution provides that:

“Nothing in this Constitution shall invalidate the following enactments, that is to say …..

(c.) the National Security Agencies Act.

and the provisions of those enactments shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of this Constitution and shall not be altered or repealed except in accordance with the provisions of section 9 (2) of this Constitution.”

WHO ISSUES A SEARCH WARRANT?

Section 143 of ACJA provides that a court or Justice of the Peace may issue a search warrant at any time authorising “an officer of the court, member of the police force, or any other person named” to search such building, ship, carriage, receptacle, motor vehicle, aircraft, etc. (Emphasis supplied).

Under the Criminal Procedure Law, section 109, it is a Magistrate who issues a search warrant; under section 75 of the Criminal Procedure Code, a search warrant is issued by a court or a Justice of the Peace.

WHEN AND HOW CAN SEARCH AND ARREST WARRANTS BE EXECUTED?

By section 148 ACJA, “A search warrant may be issued and executed at any time on any day, including a Sunday and public holiday.”

HOW SHOULD A SEARCH BE CONDUCTED

Section 149 of ACJA provides that “(1) Where any building or other thing or place liable to search is closed, a person residing in or being in charge of the building, thing or place shall, on demand of the police officer or other person executing the search warrant, allow him free and unhindered access to it and afford all reasonable facilities for its search.

(2) 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 this Act.”

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Sections 9, 10, 12 and 13 relate to the use of force in the search of a person arrested; inventory of items recovered in the search; entry of premises where a suspect to be arrested has entered into; and breaking open of any outer or inner door or window of any house or place whether that of the suspect to be arrested or any other person or otherwise effect entry into such house or place.

These provisions are similar to the provisions of sections 7 and 112 of the Criminal Procedure Law.

WHO ISSUES A WARRANT OF ARREST?

By section 36 (1) (c) ACJA, a warrant of arrest is issued by a Judge or a Magistrate. A warrant of arrest may be issued on any day, including a Sunday or public holiday. See section 38 ACJA.

Under the Criminal Procedure Code Law Cap. 41 Laws of Sokoto State of Nigeria 1996, Magistrates and Justices of the Peace have the power to issue warrants of arrest. See section 56 of the Law.

CAN ARREST BE EFFECTED IN THE ABSENCE OF AN ARREST WARRANT?

Section 44 provides that “A warrant of arrest may be executed notwithstanding that it is not in the possession at the time of the person executing the warrant but the warrant shall, on the demand of the suspect, be shown to him as soon as practicable after his arrest.” (Emphasis supplied).

By section 18 (1) (d) and (j) ACJA, a police officer may, without an order of court and without warrant, arrest a suspect in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to the thing; or for whose arrest a warrant has been issued or whom he is directed to arrest by a Judge, Magistrate, Justice of the Peace or superior police officer.

Section 149 ACJA is crystal clear that any person in whose name a search warrant is issued can execute the search. Also section 40 ACJA has conferred on the court the power to issue warrant of arrest to any other person as the court may decide.

The section provides that:

“(1)A court issuing a warrant of arrest may, where its immediate execution is necessary and no police officer is immediately available, direct it to some other person or persons and the person or persons shall execute the same.

(2)A person, when executing a warrant of arrest directed to him, shall have all the powers, rights, privileges and protection given to or afforded by law to a police officer executing a warrant of arrest and shall conform with the requirement placed by law on a police officer.”

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It has already been settled that in the conduct of searches and arrests, staff of SSS are conferred with the powers of Superior Police Officers. Reference to police officers in any law in Nigeria, in relation to searches and arrests, also refer to staff of SSS.

WHAT IF THE SEARCHES AND OR ARRESTS WERE MADE ON IRREGULAR OR DEFECTIVE WARRANTS OR ADMINISTERED AT WRONG TIMES?

ACJA provides clear and categorical answers to these questions vide section 136. It states:

“Where any defendant is before a court, whether voluntarily, or on summons, or after being arrested with or without warrant, or while in custody for the same or any other offence, the trial may be held notwithstanding:

  1. any irregularity, defect, or error in the summons or warrant, or the issuing, service, or execution of the summons or warrant;
  2. the want of any complaint upon oath; or C. any defect in the complaint, or any irregularity or illegality in the arrest or custody of the defendant.”

ARE JUDGES/JUSTICES IMMUNE FROM ARREST/PROSECUTION?

Section 308 of the Constitution confers immunity from civil and criminal proceedings (within the set limits) on the President, Vice President, Governors and Deputy Governors. No other person, to my knowledge, in the executive, legislature or judiciary, enjoys similar cover.

IS DISCIPLINARY PROCEEDING BY THE NATIONAL JUDICIAL COUNCIL (NJC/COUNCIL) A MANDATORY PRECURSOR TO CRIMINAL PROCEEDINGS IN ALLEGATIONS OF CORRUPTION AGAINST JUDGES/JUSTICES?

By the combined effect of sections 153 (1) (i), 158, 160 and 292 and paragraph 21, part I, Third Schedule of the Constitution, the NJC is an independent body that is not subject to the direction or control of any other authority or person and that makes rules to regulate the discharge of its functions. The Council, inter alia, exercises disciplinary control over judicial officers.

NJC is not a court; it is not a law enforcement agency. The functions of the Council are limited, in relation to misconduct by judicial officers, to internal administrative inquiry and recommendation of appropriate punishment of erring officer to the President or the Governor, as the case may be.

The disciplinary procedure by the Council cannot forestall any investigation that aims to uncover facts about allegations bordering on commission of crime by a judicial officer. Neither can criminal investigation stop the Council from discharging its constitutional duty to discipline its officers. The two processes can be sustained independent of each other.