PRESIDENT Muhammadu Buhari stirred the hornet nest during his first media chat when in his answer to one of the questions posed to him on the continued detention of former National Security Adviser (NSA), Col. Sambo Dasuki and leader of the Indigenous People of Biafra (IPOB), Nnamdi Kanu in disregard to court orders, said his government could not afford to release them because the magnitude of the charges against them was too grievous. While Dasuki is facing multiple charges bordering on illegal possession of arms and corruption, alleged diversion of $2.1 billion meant for the procurement of arms, Mr. Kanu was charged for treasonable felony.
For instance, Dasuki is standing trial on a five-count charge of money laundering involving about N84.6m and illegal possession of firearms before Justice Adeniyi Ademola of the Federal High Court, Abuja. He was granted bail by the court on self-recognizance.
The second case involving Dasuki is that in which he is being tried with an ex- Director of Finance and Administration in the office of the NSA, Shuaibu Salisu and former Director of the Nigerian National Petroleum Corporation (NNPC), Aminu Baba-Kusa in a 19 count-charge bordering on criminal diversion of funds.
In this charge sheet, Dasuki, Salisu, Baba-Kusa and two companies – Acacia Holdings Limited and Reliance Referral Hospital Limited were charged with conspiracy and criminal breach of trust under the Penal Code Act and the Economic and Financial Crimes Commission (Establishment) Act.
The trial judge, Justice Baba-Yusuf admitted each of them to bail in a ruling on December 18 at N250m with one surety and adjourned to January 21 for commencement of trial.
In the third case, Dasuki is being tried with former Minister of State for Finance, Bashir Yuguda, former Sokoto State governor, Attahiru Dalhatu Bafarawa, his son and firm – Sagir Attahiru and Dalhatu Investment Limited – and former Director of Finance and Administration in the office of the NSA, Shuaibu Salisu in a 22-count charge of alleged diversion of over 20billion.
Justice Affen, on December 21 last year, granted bail to each of them at N250m with two sureties and fixed February 2 for commencement of trial.
In the case of Kanu, he was first arraigned before an Abuja Magistrate Court by the Federal Government before he was later charged before a Federal High Court on a six count criminal charge of treason, importation of illegal goods and possession of fire arms filed against him by the Department of State Services on the ground that he will not get fair trial.
This was after the case against him at the magistrate court was withdrawn.
On December 23, 2015, he was docked along with two others Benjamin Madubugwu and David Nwawuisi but refused to take his plea on the grounds that he did not have confidence in the court.
Before the new charge was filed, Justice Adeniyi Ademola had ordered for his unconstitutional release from the custody of the Department of States Security Service (DSSS), but that order was not obeyed.
Of the cases, that of National Publicity Secretary, Olisa Metu seems more confounding. According to reports the leadership of the Economic and Financial Crimes Commission (EFCC) which has been detaining him said it is yet to articulate charges against him. Yet it is adamant that that the man must remain in its custody. Not surprisingly the issue has split the legal community.
Justifying the continued detention during the media chat, the President said, “If you see the atrocities these people committed against this country, we can’t allow them to jump bail. What of the over two million people displaced, most of them orphans whose fathers have been killed? We cannot allow that.”
On why Mr. Kanu was still being held, Mr Buhari said: “And the one you are calling Kanu, do you know he has two passports – one Nigerian, one British – and he came into this country without any passport? Do you know he came into this country with sophisticated equipment and was broadcasting for Radio Biafra?”
Ever since that media chat, mixed reactions have continued to trail the president’s statement with many Nigerians describing him as a tyrant and dictator, while others openly support his action.
Most lawyers and activists who spoke on the issue accused the president of over stepping his Executive powers by openly defying the judiciary on national television.
NBA insists Rule of law must be respected
Speaking on the issue, President of the Nigerian Bar Association, NBA, Augustine Alegeh, SAN, said “government has a need to respect the rule of law. As a matter of fact, there is need for government to be in the front burner in the respect for the rule of law. Whoever is unhappy, including government with a pronouncement of the court, has the opportunity of still going back to that court, for the court’s decision to be vacated or appeal to a higher court, but not to undertake to ignore it or carrying on as though nothing has happened or that the court’s order is not binding. That is an unacceptable principle in the rule of law”.
Alegeh maintained “an agenda for the respect of rule of law is a must for the government. For specific cases in court, it’s not the business of the Nigerian Bar Association to make comments on them, because we have our members on both side and they can decide to speak on the matter, but on the general principle of rule of law, as an association, it is one area we are passionate about, which we feel is very essential.
“So, both government and citizens must subscribe to the principles of rule of law and doing otherwise is not an option. You cannot pick and choose which court order to obey, if you try to do that, you are clearly undermining the principle of rule of law and the obvious consequence will not help the society in anyway.
We believe that from our interaction with the government of President Muhammadu Buhari, they do not have an option but to obey court orders. You must bear in mind that the courts are there to settle disputes between individuals as well as between government and individuals, so it is important that all parties respect the rule of law and judgments and decision of courts as that is one area we will not compromise”.
SANs fault Buhari
Some Senior lawyers who bare their minds on the issue equally disagreed with the President on the matter, saying the position he took was offensive to the tenets of constitutional democracy, rule of law and presumption of innocence of an accused person.
They advised the President to, in future, allow the Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami, SAN, to handle such topics on behalf of the government.
In his submission, Mahmud Magaji, SAN, stated, “going by provisions of our extant constitution, the presumption is that a person charged to court for whatever offence, is innocent until guilt is established. Unless I am told that the constitution was amended last night. That you level an accusation on someone does not make the person guilty automatically. If it is so, why then are the courts there? What we are practicing is constitutional democracy. Anyway, I did not listen to the media chat and cannot therefore, speak much on the issue”.
Chief Joe Agi, SAN, said: “I really want to believe that the President did not mean what he said. I have a feeling that what he wanted to say was that though granted bail, if there are other cases against the accused persons, they could be re-arrested, notwithstanding the pending case.
“It will be totally wrong to refuse to release someone on bail in the absence of any pending allegation. Clearly, I am so sure that what the President meant to say was not what he said or what was understood. We should also appreciate the fact that he is not a lawyer.
“If I am to advise the President, I will say he should in future, leave such issues to the Attorney General of the Federation to clarify”.
Another SAN who did not want his name mentioned because of his closeness to the present government, said: “I will say that the President’s statement is an infringement on the concept of separation of powers.
“No matter how strongly one feels about the culpability of any accused person, once an order has been made, the Executive is bound to obey.
“Even if you have other crime allegation against an accused, you must first of all respect an order for bail, and maybe re-arrest the person later to answer to the fresh charge. However, for the President to say that the accused persons will not be released from detention because of the gravity of charge against them is an affront on the hallowed principle of separation of powers.
“Such things were never supposed to be voiced out by any person under a democratic government, not to even say the President. It is unfortunate, though the Presidency has come out to clarify. As the President of Nigeria, one can hardly separate Buhari from the Presidency.
“Nevertheless, for them to come out to clarify the issue shows deference to public outcry”.
A constitutional lawyer, Mr. Festus Ogwuche, said: “The President got it wrong. No matter the number of allegations against an accused person, once the matter has been charged before a competent court, that court assumes powers to determine whether or not the person deserves bail.
“Court orders are made to be obeyed, if not, it becomes impunity. No matter the gravity of the offence, an accused is presumed innocent until proven guilty. Proper investigation ought to have been conducted and concluded before a person is charged. Re-arresting someone immediately after the court has granted such person bail makes mockery of our democracy which is presumably anchored on the rule of law and separation of powers”, he added.
Describing the comment as a “national embarassment”, human rights lawyer, Ebun Adegboruwa, said Mr. Buhari, a former head of a military junta, which ruled the country in the 1980s with an iron fist, proved by his open defiance of the judiciary that he remained a dictator at heart.
“We appreciate the President because he has spoken from his heart and gave us the correct impression of who he is,” he said.
Ebun stressed “Under Section 287 of the 1999 constitution, all persons exercising judicial, executive or legislative power must have respect for the order of the court. It is not proper for the president to choose which order to respect or to obey. Given that the president assumed office through the rule of law, it is totally uncharitable to be humiliating the judiciary openly in a presidential chat”.
He said the President’s comment was capable of undermining the judiciary and causing anarchy.
“The reason why this is very difficult is that once we resort to self-rule, once we resort to a situation where the leadership is breathing down lawlessness, then anarchy will come because if a president will not obey a court order, a business man will not obey it, policemen will not obey it.
“It would be promoting anarchy. I am sure in some quarters the SSS people are rejoicing. Overzealous security officials and rejoicing, and perhaps using the President’s comment as reason to put people in custody and breed impunity.”
While asking the President to apologise to Nigeria for making such a comment, Mr. Adegboruwa advised judges not to be intimidated by Mr. Buhari’s comment and to carry on with their job without fear.
Similarly, Lanre Suraju, Chairman of the Civil Society Network Against Corruption, (CSNAC), said the President’s comment was “unfortunate”, adding that his utterance was capable of undermining security agencies in their jobs.
“The utterance of the president only shows that there is a government agenda specifically and deliberately skewed to perpetually keep the guy in detention. And that is most unfortunate. That is also not only pitching the judiciary against the executive, it is also showing that there would be a measure of arbitrariness on the part of the executive.
“The case of Nnamdi Kanu is also unfortunate. It is an extra-judicial action. Basically, if he is being charged for treason, there is also certain conditions that needs to be met before bail can be granted. If the lawyers of the government have failed to establish the magnitude of his offence, and the court in its own wisdom has granted that bail, the SSS has no basis and no reason under the rule of law to perpetually keep him in detention,” he said.
It’s not a breach of rule of law—Sagay
But justifying the continued detention of Col. Dasuki (retd) and Kanu, legal icon, Professor Itse Sagay, SAN, argued that the Federal Government was not in violation of the rule of law.
He said: “The way I see it is that any bail granted an accused, is completely related to the offence which he is charged before the court. So, if after he (the accused) has been granted bail and the prosecution discovers another offence for which no bail has been granted, then the accused can be re-arrested. So, that cannot be in violation of a bail, which is in relation to an earlier stated offence.
Sagay, who is also the chairman of the presidential committee on anti-corruption was quick to point out that “I do not know the full facts but what I am saying is that if this re-arrest arises out of fresh offences, which are not part of the ones for which the person had been granted bail, then there is a right to arrest. This is not a breach of the rule of law.”
In his contribution, another lawyer, Solomon Atare , said the President’s argument about the severity of the detainees’ alleged crimes is not a justification to disobey court order.
According to him Mr Buhari will be violating Section 287 of the constitution if he refuses to obey court orders.
“I am speaking with respect to section 287 of the constitution which says that decisions of our courts are bidding on authorities and persons including the presidents,” Mr. Atare said.
He, however, added that there was no law stopping security agencies from rearresting a person released on bail if there are facts suggesting that he was involved in another crime.
“Do you know how many offences Dasuki has committed? Do you know whether another charge is being prepared against him now? So would you begrudge the state the right to charge him in as many offences as he has committed in his life time?” he asked.
“There is what is call prosecutorial discretion. It is in the interest of the public that they be charged for every corruption related offence.”
He also berated judges for being soft on politicians facing charges while applying the full weight of the law on other suspects.
“I’ve said fighting corruption is not a theatre. It is not a circus. I’m familiar with the disposition of our court when it comes to granting bails to few cases of people who are alleged to have been involved in bank fraud and for instance have stolen N20 million or whatever, they are remanded in prison custody. The judges would say they are not going to exercise their discretion.
“But in the case of politicians, they would saunter to the court, assured that they are going to be released and then the court will grant them bail. Do you know that Dasuki was first granted bail on self-recognition?”
Similarly, a former Chairman of Nigerian Bar Association (NBA), Ikeja branch, Monday Ubani, said although the president must ensure that the independence of the judiciary should not be undermined, he has a right to express his opinion on certain national issues like every Nigerian.
According to him, what the president was trying to say by his comment was that the judiciary should desist from giving frivolous orders.
“The president has a right to say certain things because he lives in Nigeria and he knows that there some criminal trial since 2007 and up till now we have not gone beyond the preliminary stages. What I’m saying is that our system has an issue. We have not been able to handle our cases in manner that engenders confidence. A lot of cases are muddled up here where as if those cases are taken abroad they are handled within a timeline. So anyone has a right to be angry with what is going on in this country. There is problem with our administration of criminal justice in Nigeria.
“But having said that, the President cannot in anyway interfere with the judicial process. He must allow judicial process to run through,” he said.
For Metuh who was arrested by EFCC in connection with an alleged bank account that had N1.4bn lodged into during the campaign , some people are kicking against his continued detention by the anti graft body. Both the politician’s family and his party, PDP have demanded for his release.
A lawyer, Godson Akpan accused the government of turning Nigeria into a jungle by detaining people unconstitutionally. “I am not against arresting Metuh or any person if they have committed any crime, what i consider insulting is EFCC telling Nigerians that it is trying to come up with charges against Metuh. What that means is that it didnt establish a case against the man before going after him, it arrested him based on hearsay”.
Ozekhome’s take on holding charge
Human rights lawyer, Chief Mike Ozekhome, SAN, apart from flaying the continued detention of people under the toga of holding charge insisted that such development was an affront on the judiciary.
He emphasised that the practice is illegal just as the holding charge itself.
Hear him ,”Aside the fact that sections 293-299of the ACJA violently violate the clear provisions of Section 35(4) and (5) of the Constitution as shown above, they also presumptuously create a “holding charge”, which has been declared by the highest Courts of the land, to be patently illegal, unconstitutional, null and void.
“According to Blacks Law Dictionary,”holding charge” means a criminal charge of some minor offense filed to keep the accused in custody while prosecutors take time to build a bigger case and prepare more serious charge.”
“A “Holding charge” therefore, is a charge brought by the Police other law enforcement officers against an accused person before an inferior court that lacks jurisdiction to try the offence charged, pending the receipt of legal advice from the office of the DPP, to recommend the accused person’s trial in a court of competent jurisdiction, or tribunal, set up to try the particular offence.”
He explained that Nigerian courts have however consistently declared this “arrest-before-investigation”, rather than”investigation-before-arrest”, (as done in civilized criminal jurisprudences of the World), as anomalous, unconstitutional and illegal.
Ozekhome wrote “The arraignment before a Magistrate Court tantamounts a holding charge which has been described as unconstitutional and illegal by this court. In the case of Enwere v. C.O.P. (supra) it was held that “holding charge” is unknown to Nigeria Law and an accused person detained thereunder is entitled to be released on bail within areasonable timebefore trial more so in a non-capital offence.
“The intermediate court followed suit in the case of SHAGARI V. CO.P. (2007) 5 NWLR (Pt. 1027) 275 at 298 Paras. C – G, 302 Paras. G – H (CA),(Summary judgment of Sanusi and Ogbuagu, J JCA), where it held:
“A holding charge is unknown to Nigerian law and any person or an accused person detained thereunder, is entitled to be released on bail within a reasonable time before trial (more so in non-capital offences). A holding charge has no place in Nigerian judicial system. Persons detained under an ‘illegal’, ‘unlawful’ and ‘unconstitutional’ document tagged ‘holding charge’, must unhesitatingly be released on bail.
The debate is unlikely to end. Certainly if the government remains adamant, more Nigerians are likely to develop sympathy for those that are currently in detention despite the fact that the arms contract scandal is one issue that incenses several Nigerians.