It is not in doubt that a major element of the security challenges plaguing the nation today is terrorism.
From the Northeast, where Boko Haram and other related groups operate, to the Southeast, where the Indigenous People of Biafra (IPOB) and associated bodies hold sway, the nation has continued to expend money and men in its efforts to bring the situation under control.
However, despite the nation’s efforts, critics have continued to query why the challenge of terrorism seems intractable, with many blaming security agencies for not doing enough.
This, perhaps, might have informed the recent outburst by the Chief of Defence Staff (CDS), General Christopher Musa, who accused the Judiciary of sabotaging the efforts of the military to tame the activities of terrorists in the country.
Musa, while addressing the House of Representatives, accused the Judiciary of releasing arrested Boko Haram suspects and delaying their prosecution.
The CDS argued that granting bail to Boko Haram members was putting the lives of security personnel at risk, adding that the release of Boko Haram operatives was affecting the fight against terrorism.
The CDS said: “I have been in the North-east, there were a lot of Boko Haram elements that have been captured. We have kept them for five/six years.
“We the armed forces can arrest, but cannot prosecute. Some of them have been found wanting, but no prosecution.
“We are keeping them for this lengthy period, everyone is accusing the armed forces of keeping them against their human rights, but we cannot prosecute.
“Another aspect of the Judiciary is that you use all your efforts to make an arrest, you hand them over, and before you enter your vehicle, the man has been released on bail.
“Now, you have risked yourself in doing that (effecting the arrest); by the time he is released, he goes to tell the people the person that arrested him. Now, your family members or you are at risk.”
Musa said it was getting to a state where the security forces would not want to make any effort.
Is the Judiciary to blame?
Lawyers have argued that the CDS was wrong to blame the Judiciary for simply performing its constitutional duties of interpreting and applying the law.
Senior Advocate of Nigeria (SAN), Joseph Nwobike; Abuja lawyer, Otunba Tunde Falola and Dr. Peter Duela argued that while the CDS could be excused for expressing his frustration, he was wrong to have directed his blame to the Judiciary for simply granting bail.
Has the court the right to grant bail?
Justice Halilu Yusuf of the High Court of the Federal Capital Territory (FCT) said the court was at liberty to grant bail irrespective of the nature of the case, once the liberty of an individual is in question.
Justice Yusuf stressed this point in a ruling he delivered on November 21 in the criminal case involving 13 members of the Petroleum Tanker Drivers (PTD) arm of the Nigeria Union of Petroleum and Natural Gas Workers (NUPENG).
They were arraigned on a charge marked: CR/042/2023 filed in the name of the Inspector General of Police (IGP) and in which the defendants were accused among others, of conspiracy, assault and attempted murder.
Justice Yusuf said the issue of bail was a constitutional right of a defendant, whose guilt was not yet established, irrespective of the nature of the offence.
He added that the decision to either grant or refuse bail to a defendant was solely that of the judge.
The judge said: “The issue of bail has been discussed over the years in our courts and the annal of our jurisprudence. Bail is a constitutional right of an accused (a defendant)
“As constitutional as it is, is also a contractual relationship between an accused person and the court once there are good reasons to admit such an accused person to bail.
“It is a constitutional right because an accused person so charged before a court of law is presumed innocent until his/her guilt is established as provided in Section 36(5) of the Constitution.
“The essence of bail is not to set an accused person free, but to release him/her from the custody of the law and to entrust him/her to appear at his/her trial at a given date.”
Justice Yusuf added that bail implies granting a defendant “pre-trial freedom, and whose appearance can be compelled by ensuring that a credible surety gets him/her on bail and such surety undertake to produce him/her in court”.
He added: “The guilt of a person so arraigned must be established for his/her fundamental human rights, as captured in chapter four of the 1999 Constitution to be inhibited.
“This is so because he is already presumed innocent. So his guilt must be established by the prosecution.
“And, pending when his/her guilt is established, even the court must always see him/her as an innocent person, unless and until he/she is found guilty.
“It is for these reasons that when an application for bail is brought before a judge, in writing or orally, the judge shall put in place conditions that will ensure that the accused person attends court for his trial; that he will not jump bail so granted and that he will not interfere with the investigation or the witnesses of the prosecution.
“I am not oblivious that courts have granted bail in cases where the defendants were arraigned for treasonable offences. Treason is the highest offence known to our laws.”
Justice Yusuf referred to the cases of the late Chief M.K.O. Abiola and Mujahid Asari Dokubo, who were both charged with treason but were granted bail.
‘Why the Judiciary is not at fault’
Nwobike argued that blaming the Judiciary in this circumstance as done by the CDS was simply unwarranted.
He said: “The truth is that all and sundry have suddenly found the Judiciary as the reason for all the difficulties facing Nigeria today.
“The Judiciary is guided by the law. Where a defendant is entitled to bail pending trial, under the prevailing legal framework, the Judiciary is not permitted to deny such a defendant the right to bail.
“It is the offence for which the defendant is charged by the prosecuting agency of government that will determine whether such a defendant will be granted bail or not.
“I, therefore, will like to differ with the CDS in that regard. Blaming the government’s failure to fight terrorism on the Judiciary is unjustified.
“Empirical evidence shows that the Judiciary has played its role very effectively in the fight against terrorism within its limited resources.”
He noted that whether or not a person charged with terrorism will be granted bail will essentially depend on the particular law under which a defendant was charged and the severity of the offence.
Nwobike said: “Some of the offences attract between10 to 20 years imprisonment. For instance, under Section 3 of the Terrorism (Prevention)(Amendment) Act of 2013, the offence of kidnapping carries life imprisonment, while the offence of training terrorists under Section 7 of the same law attracts 20 years imprisonment.
“So, the section, under which the defendant is charged, will ultimately guide the court in granting or refusing to grant bail.
“Offences that attract life imprisonment usually are not bailable except in special cases.”
Falola said ordinarily, one is tempted to sympathise with the CDS in his expression of frustration at the way and manner suspected terrorists arrested by the security agencies are granted bail by the courts.
He noted that it constitutes a very serious issue that calls for sober reflection because the lives of gallant military officers are usually put at high risk when these suspected criminals are released on bail.
Falola, however, noted that the issue of bail is more legal than moral.
He added: “In other words, granting bail to an offender is a constitutional issue.
“I say this because a person accused of committing an offence still enjoys the constitutional right of presumption of innocence until proven guilty by a competent court of law no matter the gravity of the offence alleged.
“Therefore, it will be unfair to blame any judge, who exercises his discretion in admitting a person, accused of committing an offence, to bail.”
Speaking further on their issue, Falola noted that the law is well settled that bail of an accused person should not be withheld as a pre-trial punishment.
He said: “If the court is to consider the gravity of the offence, particularly the offence of terrorism in refusing to grant bail to an accused person, this will be a very dangerous trend, because an innocent person, accused of committing an offence, might eventually suffer for an offence he knows nothing about.”
When bail can be denied
Falola noted that even though there is no offence that is not bailable under the nation’s laws and constitution, there are instances where the court could decide to refuse bail.
He said: “It must be pointed out that there are some offences that are ordinarily bailable, while some are not ordinarily bailable.
“You cannot compare a person alleged to have slapped someone with someone who has been accused of armed robbery when it comes to the issue of bail.
“Bail is usually refused in some instances. For instance, if releasing the person, accused of committing an offence will expose him to serious risk or danger. In this case, bail might be refused.
“Also, if releasing him will jeopardise further investigation of the alleged offence, bail could equally be refused.
“In these two instances, it does not mean that the offences alleged to have been committed are not bailable, but bail is refused because of some special circumstances.”
Need for special court for terrorism cases?
Nwobike and Falola disagreed on the need or otherwise for the establishment of a special court for the trial of terrorism cases.
While Nwobike argued against it, Falola welcomed the suggestion.
Nwobike said: “I do not think that we need to establish special courts for terrorism cases.
“There are sufficient courts within the Federal High Court system for the speedy hearing and determination of terrorism cases in Nigeria.”
Falola, on the other hand, said: “I think I am in support of that totally, given the fact that most of our courts, particularly the Federal High Court that handles these cases are already overwhelmed by the number of cases in their docket.
“Creating a special court to handle terrorism cases will, in no small measure, decongest our court which will invariably promote speedy dispensation of justice.”
Duela suggested the resumption of the special arrangement earlier deployed before now, where some judges are taken to specific locations for the sole purpose of conducting the trial of these detained terror suspects.
“I can remember that such an arrangement was adopted before where some judges conducted proceedings in a military formation in Kainji, Niger State and another one in Borno State.
“We can resume that arrangement instead of waiting time to create another court because time is of the essence,” he said.
The AGF’s assurance
The problem of delay in the prosecution of arrested terror suspects, alluded to by the CDS, will soon be addressed, according to Attorney-General of the Federation (AGF) Lateef Fagbemi (SAN).
Fagbemi said plans were in top gear to ensure a seamless process that will involve the combination of normal physical court trial process with virtual hearings.
Fagbemi said: “Efforts are on to resume the trial of those categories of people. And I think, in the next two weeks, it will be a different story. We are conscious of that issue.
“Facilities are being put in place. Apart from the regular physical mode of trial, we working on ways to ensure that virtual trials can also be conducted.
“This is intended to prevent delay. The government is not shying away from its responsibility of providing funds for this purpose. The idea is to ensure that we deploy adequate facilities to achieve this.”
What security/investigating/prosecuting agencies should do
Instead of throwing blame at the Judiciary, Nwobike and Duela suggested that the relevant security, investigating and prosecuting agencies of government should evolve more effective ways of addressing this challenge.
Nwobike said: “The investigative and enforcement agencies of government at all levels must do more with the aid of technology and modern intelligence gathering techniques to fight terrorism at all operational stages.
“The Office of the National Security Adviser (NSA), which coordinates the fight against terrorism, needs to do more considering the security implications of terrorism to the Nigerian state.”
Duela believes all hands must be on deck, adding that inter-agency collaboration is required.
He said: “Incidents of inter-agencies rivalry and disagreement will further weaken their capacity to deal with the challenge.
“They must identify the moles among the various security agencies, with sympathy for these terrorists, and deal with them accordingly.”
Duela, who hailed the AGF’s plan to resume the prosecution of terror suspects, said the country could no longer afford any further delay in that regard.
