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Niccolo Machiavelli, in his famous work, “The prince”, when discussing the theme, “Of  Maintaining a Princedom”, pontificated infamously, that “the end justifies the means”. This hubris probably informed my good friend, Sam Omatseye, in his back page column of The Nation Newspaper of October 31, 2016. He stated that in his keynote address at the AGM of CDHR last week, he had declared that the arrests of some Justices and Judges of superior courts “were according to the law, as against Mike Ozekhome’s unenlightened point. G.T. Ogunye (sic) educated him on the status of the law today”. He probably referred to an earlier encounter I had with Mr. Jiti Ogunye on Channels Television, whose only side of the argument Sam gleefully, but curiously, quoted out of the context of our discourse. No, Sam. I was rather the one, who educated Mr. Ogunye. He was wrong. You are also wrong. Jiti had referred to sections 9, 10, 12, 13, 148 and 149 of the Administration of Criminal Justice Act (ACJA); by the way, a law made under much maligned GEJ administration.
For the records, my argument is  very simple, and backed with facts and  sound legal reasoning: The whole exercise of crudely and savagely breaking into respected  judges’ homes,  or any Nigerian citizen’s home, between the unholy and ungodly hours of 1am and 5am, for whatever reasons, wearing masks and hoods, like rampaging armed robbers, in the name of executing purported search warrants is consistent with lawless  gestapo tactics. They were   not really meant to catch the judges red handed in the commission of any offence, or for the purpose of gathering evidence, but were reflectively calculated  to put the entire judiciary in terrorem of the Executive. It was not a “sting operation”, otherwise, they would not have erroneously invaded Justice Nnamdi Dimgba’s house.  I had further argued that if the purpose was to gather evidence instead of naked intimidation, nothing stopped the DSS from surrounding the Judges’ houses, incognito, and then executing the searches at dawn,  from 7am, since the judges, no matter their offences, are presumed innocent under Section 36 (5) of the 1999 Constitution, which recognises that our criminal justice system is accusatorial, not inquisitorial. Was it not more decent in carrying out their acts against sitting judges, to accord them some modicum of respect? Were those judges ever invited and they turned down the invitation?  Which of the politicians, including ministers, with all the allegations of corruption serially leveled against them, have received such deliberately calculated brutal humiliation and dehumanisation?
Coming to the issue of the said search warrants, some lawyers, whom Mr. Omatseye probably regard as his lecturers had argued that my stand to the effect that the said search warrants should have been executed between 6am and 6pm was wrong because Section 148 of the ACJA provides that “a search warrant may be issued or executed at any time or any day, including a Sunday or public holiday”. I had pointed out that the said warrant was a fraud and legally nonexistent. The reason is that the said ”WARRANT TO SEARCH” against each of the judges was issued under FORM 9, pursuant to sections 74 and 76 of the Criminal Procedure Code, a law which has since ceased to exist at the commencement of the ACJA by virtue of  Section 493 of the Act. The CPC under which the said fraudulent warrants were obtained, expressly provides that a warrant of search can only be executed between 6am to 6pm. It is also more worrisome when the ACJA has its own FORM D (FORM No. 7), clearly titled: “SEARCH WARRANT”.
To be sure, Judges, as well as all other Nigerians, irrespective of social standing, have the right to freedom from inhuman and degrading treatment, right to freedom from torture, right to privacy and right to presumption of innocence, as provided for in sections of 34, 35, 36 and 37 of the 1999 Constitution respectively.
I had argued further, that Section 149 (1) of ACJA, which purportedly permits the DSS to burst into citizens homes in the night  and break down doors and windows, must be read subject to the provitions of the 1999 Constitution, our fon set origo, the grundnorm. The Constitution guarantees the right to  dignity of the human person and freedom from inhuman and degrading treatment (S. 34). It guarantees right to family life, privacy of citizens, their homes, correspondences, telephone conversations and telegraphic communications (S. 37). The ACJA is a law, which is subservient and inferior to the Nigerian Constitution. The Constitution is supreme (S. 1 (1)), and where any law, including the ACJA, contradicts its provisions, such law is automatically null and void, to the extent of its inconsistency. (S.1 (3) Consequently, sections 9, 10, 12, 13, 148 and 149 of the ACJA, which presumptuously frontally assault sacred and inviolable  rights expressly guaranteed by the above constitutional provisions are null, void and of no effect whatsoever.
By the way, section 8(1) of the ACJA unknown to which these “lynch-all- Judges” advocates, itself provides that “a suspect shall be accorded human treatment, having regard to his right to dignity of his person; and not to be subjected to any form of torture, cruel, inhuman or degrading treatment”. That is exactly what the DSS did to the Judges and their families. Doors and windows could only be pulled down if under section 12 of the ACJA, the suspect resists a search after an operative’s introduction. None of such happened in the Judges’ case.  Furthermore, by  the plenitude of the provisions of the National Security Agencies Act, the DSS has no business whatsoever, breaking into judges’ or any  other citizen’s residence and arresting them, allegedly for corruption.
For clarity, section 3 of the NSA Act provides: “The State Security Service shall be 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.”
It is pertinent to emphasise that the NSA Act, is one of the legislations saved by Section 315 (c) of the 1999 Constitution, as altered. It is trite law, that in construing statutory provisions, the express mention of one thing is the total exclusion of others not so mentioned. This is encapsulated in the Latin maxim, “expressio unius est exclusio alterius”. Section 3 expressly states that the duty of the DSS borders on prevention and detection of crimes AGAINST the INTERNAL SECURITY of Nigeria; it stops there. The job of fighting corruption or money laundering is bestowed on the EFCC, ICPC and Police, not DSS.
I do not have any regret standing by the laws of the land. If any judge is found to be corrupt, there are adequate laws within our legal stratosphere to  properly deal  with such, without resorting to crass barbarism and gross illegality. In times like this, when some persons prefer to be swayed by mob emotions, indenting on fallacies of ad populi (appeal  to popularity), ad misericordiam (appeal to pity), and ad populum (appeal to the people), I will stand, if needful, alone, speaking the law and justice from my heart.
I am happy that Mr. Sam Omatseye  realises that popularity has nothing to do with justice, citing the examples of the Nazis, Putin of Russia, Duterte in the Philippines, Erdogan in Turkey and currently, Trump in America. He, however, failed to link with PMB government’s arm-twisting tactics. We need strong independent,non manipulable and incorruptible institutions, not strong men.
The last time I checked, all Nigerians are agreed that corruption is systemic and must be ruthlessly dealt with as an epidemic cankerworm. But where Sam and others are missing it is that such cannot be done outside our constitutional regime, in a constitutional democracy, such as we operate. They missed the point that the ACJA cannot take away rights and liberties duly granted to citizens by the grundnorm, the Constitution.
For all our new found patriots and  anti-corruption Czars, let me remind them that even before President Buhari’s inauguration, I had carefully set out an agenda for him in my article titled, “The Presidential Election:  The winners and the losers (4)”, published in my weekly  “Nigerian project” column of May 3, 2015. I had written  inter alia, on  “kill corruption before it kills us”, as follows:
“I heard, during your campaign, when you changed gear and declared that you would no longer probe past cases of corruption, but will only start from May 29, when you are inaugurated. No sir. That will be making the first fundamental mistake of your government and turnaround present public perception about your own person, as incorruptible, to one of compromise and abdication of your avowed anti-corruption stance. Let me, in this, borrow from the inexhaustible dictionary of flamboyant and colourful politician, Dr. K. O. Mbadiwe, of blessed memory, whose highfalutin and grandiloquent grammar was only equalled and, perhaps, surpassed by, that of the one and only “Zik of Africa”. GMB, if you want to kill corruption, rather than allow corruption kill us all, then you must probe all the probables, investigate all the investigables, arrest all arrestables, detain all the detainables, jail all the jailables, confiscate from thieving Nigerians, all the confiscateables, get them to regurgitate all regurgitables, but exonerate all exonerables.
“It is only by probing past governments and corrupt persons that the ugly spectre of recidivism and impunity will vanish from our national life and deterrence fully enthroned and respected. Corruption is now said to be the 37th state in Nigeria, and obviously the wealthiest. GMB, kill it before it consumes us all. Not later, but immediately. Reason? Today is the tomorrow we talked about yesterday.”
I intended, and still maintain that this fight must be done in accordance with the Nigerian Constitution. Corruption is not a Nigerian citizen. It is a global citizen, governed by international and municipal laws and instruments. Nigeria cannot be an exception. We cannot successfully fight corruption with a worse form of corruption. Certainly, contrary to Machiavelli’s postulations, the end does not always justify the means.