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*Intersociety Writes NPF, SSS, ICPC & EFCC To Investigate Alu & Salami
1. Mr. Mohammed D. Abubakar
Acting Inspector General of Police, Force Headquarters, Louis Edet House
Shehu Shagari Way, Abuja, Nigeria
2. Mr. Ita Ekpeyong
Director General, State Security Services
The SSS Headquarters, ASO Drive
Three-Arms-Zone, Abuja, Nigeria
3. Mr. Ibrahim Lamorde
Economic & Financial Crimes Commission
No. 5 Formella Street, Off Adetokumbo Ademola Crescent Wuse II, Abuja, Nigeria
4. Mr. Ekpo Nta
Chairman, Independent Corrupt Practices & Other Related Offenses Commission
Plot 802, Constitution Avenue
Central District, Abuja, Nigeria
A Request For Your Criminal Investigation Agencies To Carry Out Thorough & Conclusive Criminal Investigations Into Allegations Of Crimes Against Public Decency (corruption, bribery, fraud, forgery, abuse of office, etc) Levelled Against Honourable Justices Aloysius Katsina Alu (rtd.) & Ayo Isa Salami In Their Official Capacities As The CJN & The PCA In 2011
Above subject matter refers.
(Onitsha Nigeria, Monday 21st day of May, 2012)-In line with relevant provisions of the Constitution of Nigeria 1999 as amended including Sections 15(5), 22 and Chapter 4 as well as other relevant laws of the Federal Republic of Nigeria such as the Access to Information, Police, SSS, ICPC and EFCC Acts, all recognized and protected by the Constitution of Nigeria 1999 as amended, we, the International Society for Civil Liberties & the Rule of Law-Intersociety, write to your important public agencies to rise to your constitutional responsibilities by thoroughly and conclusively investigating the two top judicial officers over the serious allegations above mentioned.
By Section 15(5) of the Constitution, the Nigerian State is commanded by her Constitution to abolish all forms of corrupt practices and abuse of office, while Sections 22 and 39 of the Constitution empower the mass media and other non-state actors including the Intersociety to beam their searchlights on those holding legislative, executive and judicial powers so as to ensure their compliance at all times with the laws of public decency, and where the reverse becomes the case; to ensure that they are adequately punished for being in conflict with such laws.
As you know Sirs, the Nigerian Justice System is divided into criminal justice and civil justice administrations and in criminal matters, civil, advisory and administrative bodies like the National Judicial Council and the Nigeria Bar Association patently lack powers to dabble into such matters. Their roles are purely administrative and advisory. But recent events in Nigeria have clearly shown that the two bodies have practically taken over the functions of your important public agencies in matters of criminal investigations. The Nigeria’s NJC and NBA appear to have become the Nigeria Police, SSS, EFCC and the ICPC by dangerously dabbling into investigations with pure criminal contents.
In the area of crimes against public decency, they include bribery, corruption, abuse of office, extortion, fraud, forgery and perjury and are in consonance with Section 36(8) of the Constitution in that they not only constitute crimes in Nigeria, but also punishable under the Criminal Code, Penal Code, Criminal Procedure Act, Criminal Procedure Code and Evidence Act as well as the EFCC, SSS, Police and ICPC Acts, all laws of the Federal Republic of Nigeria. In other words, within the confines of mala prohibita, these crimes are clearly rooted.
Revisiting The Subject Matter:
Sometime in 2010, the Honourable Chief Justice of Nigeria, Honourable Justice Aloysius Katsina Alu (as he then was) reportedly ordered the stopping of the delivery of judgment in the Sokoto State Governorship Matter. Honourable Justice Ayo Isa Salami confirmed the alleged unconstitutional action of the CJN through his affidavit deposed to before an Abuja Federal High Court in a suit he filed in 2011 challenging his “compulsory retirement” as the President of the Court of Appeal (PCA) by the NJC.
The delivery of the said judgment was stopped and delayed for months before it was delivered, which returned the incumbent, which, probably, would not have been the case if it were originally delivered as fixed. True to PCA Ayo Isa Salami’s allegation, CJN Katsina Alu clearly acted unconstitutionally. According to Section 246(3) of the pre-amended Constitution (old 1999 constitution), which was in use then, “the decisions of the Court of Appeal in respect of appeals arising from election petitions (other than pre-election and presidential election matters) shall be final”. This simply means that the CJN lacks both constitutional and administrative power to interfere in the appellate matter, more so when it is not a pre-election matter and even if it is, he should have allowed the matter to come to his apex jurisdiction by way of appeal. The second allegation against CJN Aloysius Katsina Alu (as he then was) was that he lied under oath about his real age (perjury). By implication, he also engaged, by allegation, in the crime of forgery. The allegation pointed out that CJN Aloysius Alu’s retirement age was supposed to be on May 28, 2011 and not 28 August 2011 when he actually retired.
PCA Ayo Isa Salami, on his part was gravely and scientifically accused of compromising himself, his public office and the gubernatorial judgments in Osun and Ekiti States delivered in 2010. The main and electronic substance of the grave allegation was contained in a petition sent to the National Judicial Council by the court-declared past unlawful governor of Ekiti State, Mr. Segun Oni and his political associates. For convenience and avoidance of doubt, the following is the main content of the two petitions in quote, written to the NJC in 2011 by Mr. Segun Oni (former illegal governor) and Mr. Sunday Ojo-Williams (Chairman of the Peoples Democratic Party, Osun State, Southwest Nigeria). The excerpts are hereby attached and marked: “ Exhibit”. They can also be accessed online.
Further, the National Judicial Council is a creation of Section 153(1)(i) of the Constitution of Nigeria 1999 as amended as well as Supplementary Section 20 of Part I of the Third Schedule to the Constitution as amended. By virtue of Supplementary Section 21(b), it is to recommend to the President for the removal from office of top federal judicial officers including the Chief Justice of Nigeria (CJN) and the President of the Court of Appeal (PCA) over misconduct in line with Section 292(1) of the 1999 Constitution as amended as well as other related provisions of the Constitution. The National Judicial Council is empowered by Supplementary Section 21(b) and 21(g) to exercise disciplinary control over the said top judicial officers and to appoint, dismiss and exercise disciplinary control over members and staff of the Council.
From the foregoing, therefore, the NJC only has disciplinary and administrative powers or controls over the Federal and State High Court Judges or their equivalents, Justices of the Court of Appeal and the Supreme Court as well as their administrative heads including the CJN and the PCA. The NJC, therefore, is expressly forbidden by the Constitution to dabble into matters with criminal contents particularly in the area of criminal investigations. From the past till the present, none of the NJC’s recommendations or disciplinary measures against its indicted top judicial officers has contained requests for the criminal investigations and prosecution of those indicted, thereby making it a usurper of legal powers not given including criminal investigative powers. It may be correct to say that the NJC has steadily used its advisory, administrative and disciplinary powers to truncate statutory criminal investigations and prosecution of its indicted members including Judges and Justices and their administrative heads.
In the matter under discussion, the NJC not only acted arbitrarily and unconstitutionally, but its later sub-committees as well as the Council itself were and still are peopled by the sympathizers of the two political parties that are at the center of the mess; the Peoples Democratic Party and the Action Congress of Nigeria and the Party with more sympathizers in the Council appeared to have carried the day during the recent reported voting in the Council upon which the “recommendation for the reinstatement of PCA Ayo Isa Salami” was arrived at, with reported difference of only two votes. The Council’s bias in its administrative and disciplinary handling of the three grave allegations is utterly manifest. Apart from being the judge in its own case, contrary to the doctrine of nemo judex in causa sua(no one should be a judge in his or her own case, the NJC abandoned the main substances in the three grave allegations and settled for “disrespecting the office of the CJN”, upon which PCA Ayo Isa Salami was indicted, which the same Council reversed via its recent letter of recommendation to the President for the PCA’s reinstatement. It is therefore our firm position that unless these extra-constitutional powers not given are curbed, otherwise members of the Bench and their top officers in Nigeria under the guise of “NJC” will end up being above the law, contrary to nemo est supra leges doctrine (no one is above the law).
Why Your Public Agencies’ Constitutional Powers Should Not Be Usurped Or Taken Away By The NJC & Its Associates:
In matters of crimes against public decency-bribery, corruption, abuse of office, extortion, fraud, forgery and perjury, which are defined, prohibited and punished by Nigeria’s criminal statute, your public agencies, and not the NJC or the NBA, are exclusively empowered to criminally investigate them and prosecute their offenders if indicted. The Acts establishing your public agencies as well as the 1999 Constitution as amended are very clear on this. For instance, in terms of forgery, fraud, perjury and abuse of Office, both the Director General of SSS and the Acting Inspector General of Police can constitutionally investigate and prosecute their offenders. For extortion, fraud, bribery and corruption, the Chairpersons of the Economic & Financial Crimes Commission and the Independent Corrupt Practices & Other Related Offences Commission can legally and competently investigate and prosecute their offenders, using trained police crime investigators attached to them.
Why Honourable Justices Aloysius Katsina Alu & Ayo Isa Salami Must Be Criminally Investigated By Your Public Criminal Investigation Agencies:
When a crime is alleged to have been committed, the accused, the victim and the society become the candidates for the three-way justice; justice for the accused, for the victim and for the society, and in the crimes against public decency, when justice is done, the society becomes the double winners of justice having been victimized, compensated and cleansed. As a result of the foregoing, Honourable Justice Aloysius Katsina Alu should be investigated over an allegation that he forged his age of retirement thereby lying under oath (perjury) as well as his unconstitutional roles in the 2010 Sokoto State governorship judgment scandal. Criminal investigations against him should be centered on forgery, perjury, and abuse of office, bribery and corruption.
In investigating Honourable Justice Katsina Alu over his roles in the Sokoto State Governorship scandal, seven elements of crime must be included. For instance, did he interfere with, or stop the judgment (actus reus)? Was it with criminal intent (mens rea)? Was there any harming resulting from the act (harm)? Is the act forbidden by Nigeria’s criminal statute (legality)? Was there a cause of action (causation)? Did actus reus (guilty act) and mens rea (guilty mind) meet or concur in the act (concurrence)? And is the act punishable in the Nigeria’s criminal statute (punishment)?
Similarly, in investigating Honourable Justice Ayo Isa Salami over his roles in the Osun and Ekiti States’ governorship matters, focus should be centered on crimes of bribery, corruption, extortion and fraud with full application of the seven elements of crime as stated above. The DG, SSS should extraneously ascertain, very importantly, Honourable Justice Ayo Isa Salami’s real and sworn age(s) and probably, his years of service so far spent in the Federal Judicial Service so as to confirm whether he has, indeed, attained the mandatory retirement age of 70 or statutory years of service meant for Judges and Justices in Nigeria, having become a private lawyer in 1968(44 years), bearing in mind common knowledge in the public domain since 2011 that he was few months younger in the Bench than the now retired CJN, Honourable Justice Aloysius Katsina Alu who retired in August 2011. The Acting Inspector General of Police should carry out a general criminal investigation on the three grave criminal allegations leveled against the two top judicial officers within the confines of crimes against public decency. And to avoid unhealthy duplication and conflict of interests, inter-services meetings should be held by the four public criminal investigation agencies to adopt common grounds and strategic methods so as to ensure thorough and conclusive criminal investigations.
Ordinarily, criminal investigation means seeking to generate criminal facts or evidence over an alleged legally prohibited act. Apart from pieces of information that are evidentiary in the public domain such as the call-logs from a leading electronic network provider, the NJC’s public statement in 2011 acknowledging the allegation of age forgery against the then CJN and court affidavits, your public agencies can de-classify vital pieces of information about the accused, which many Nigerians believe, are traditionally in your agencies’ possession or custody. Also, there comes a time when some aspect of “state secrets” are divulged so as to move that nation forward. Your agencies’ expected criminal investigations are expected to generate further pieces of information nailing or exonerating the two top judicial officers once and for all. Other vital clues regarding the three grave allegations, which are in public domain are also “googleable”.
Outcome Of The Expected Criminal Investigations:
In the event of the conclusion of the criminal investigations into the roles of the two top judicial officers, they are not found culpable, then there should be written reports publicly exonerating them or either of two of them with public apologies tendered to them by the Federal Government and their accusers, but if they are indicted, they should be prosecuted and jailed to serve as deterrent to others in the Bench and the Nigerian society in general. In the course of the criminal investigations demanded of, the principle of fair hearing provided in Section 36 of the 1999 Constitution as amended must be applied to the later.
Why We Write Your Public Criminal Investigation Agencies:
Our writing your public criminal investigation agencies is both constitutionally and legally grounded. Even if the President and Commander-in-Chief accedes to the NJC’s recommendation for PCA Ayo Isa Salami’s reinstatement, whether nominally or actively, it is still constitutionally and legally immaterial to the matter under discussion because the “presidentially exiled” PCA and other top judicial officers, both serving and retired including the retired CJN, Honourable Justice Aloysius Katsina Alu, are not immune from criminal investigations and prosecution neither can the NJC’s administrative findings constitute criminal findings for criminal prosecution or otherwise. Under the law, findings emanating from administrative and oversight bodies like the NJC, the House of Reps, the Senate, etc only constitute administrative and non-criminal findings and merely serve as clues for credible criminal investigations by relevant criminal investigation agencies such as your public agencies. In the subject matter under discussion (crimes against public decency), your public agencies have both collective and individual criminal jurisdictions. The Nigeria Police Force has general jurisdiction in matters of criminal investigations and prosecution in Nigeria by virtue of Section 214 of the 1999 Constitution as amended and Section 4 of the Police Act and Regulations Cap P19 of 2004. The State Security Services, formed on June 5, 1986 by virtue of the National Security Agencies Act (Decree 19) of 1986, is also recognized by Section 315 of the Constitution and the Presidential Proclamation; SSS Instrument No 1 of 1999. Part of its duties is to “uphold and enforce the criminal laws of Nigeria and provide leadership and criminal justice services to both state and federal law enforcement organs.”
The ICPC is a creation of the ICPC Act of 2004, originally created in 2000 and rooted in Section 15(5) of the 1999 Constitution as amended to tackle corrupt practices and other related offenses by Nigeria’s State and non-state actors. The EFCC is also a creation of the EFCC Act of 2004 with its root in Section 15(5) of the Constitution to “combat financial and economic crimes and prevent, investigate, prosecute and penalize economic and financial crimes and enforce provisions of other laws and regulations relating to economic and financial crimes as well as to curb the menace of corruption in Nigeria”. Therefore, our writing your public agencies and wanting you to invoke your criminal investigative powers over the three grave allegations against the duo of former CJN, Aloysius Katsina Alu and “presidentially exiled” PCA Ayo Isa Salami are well thought out and constitutionally grounded.
Finally, a corrupt judge is more dangerous and menacing than a mentally challenged man running amok with a sharp knife in a crowded market place. We must not continue to allow a situation where former governors, former and serving legislators and ministers and ordinary Nigerians are investigated and prosecuted for engaging in legally prohibited acts against the Nigerian society, whereas Nigeria’s corrupt judges have continued to evade criminal investigations and prosecution not minding that they are not immune from criminal investigations and prosecution. When some of them are rarely found culpable in administrative misconduct, they are merely relieved of their official duties and protected from criminal investigations and prosecution. This is an utter abandonment of the rule of law and institutionalization of the rule of lawlessness.
For: Intersociety, Nigeria
Comrade Justus Ijeoma
Head, Publicity Desk
Phone: +234(0) 8037114869
1. The President & Commander-in-Chief, Federal Republic of Nigeria :
The State House, Abuja, Nigeria
2. Chairman, National Judicial Council:
Supreme Court Headquarters, Abuja, Nigeria
3. The Attorney General of the Federation:
Federal Ministry of Justice:
Plot 71, Shehu Shagari Way, Abuja, Nigeria
*Tags: Nigerians, Intersociety, Council, Police, Service, Commission. Sack, Ringim, Africa, Masterweb
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