President Bola Tinubu, in his inauguration day speech, made a solemn promise to govern according to the constitution and the rule of law.
The pledge – simple and straightforward – was critical because it indicated a determination to part ways with the much-criticised path of his predecessor and fellow All Progressives Congress (APC) member, Muhammadu Buhari.
“In the coming days and weeks, my team will publicly detail key aspects of our programme. Today, permit me to outline in broad terms a few initiatives that define our concept of progressive good governance in furtherance of the Nigerian ideal:
“The principles that will guide our administration are simple: Nigeria will be impartially governed according to the constitution and the rule of law,” President Tinubu said.
Interestingly, Buhari made a similar declaration at his inauguration on May 29, 2015.
Buhari said: “The Federal Executive under my watch will not seek to encroach on the duties and functions of the Legislative and Judicial arms of government. The law enforcing authorities will be charged to operate within the Constitution…”
His words, slightly different but no less important than that of the incumbent, are now considered by many – in the light of his acts soon after he was sworn in – as having been made tongue-in-cheek.
In just a few months in office, the Buhari administration cultivated a reputation for wilful disobedience to court orders, such as the ones granting bail to a former National Security Adviser (NSA) Sambo Dasuki, and the leader of the proscribed Indigenous People of Biafra (IPOB), Nnamdi Kanu. His administration was also accused of, among others, the violation of rights with the massacre of Shiites in Zaria, Kaduna State. In 2022, the Socio-Economic Rights and Accountability Project (SERAP) accused Buhari of a wilful disregard for the rule of law and human rights, ignoring Nigerian judges on, at least 40 occasions. Facing pushback from critics, he attempted to justify his disobedience by referencing national interest and security.
The Buhari administration’s culture of defiance of court orders and disregard for the rule of law reached a crescendo with the unpopular naira swap policy implemented by the now-suspended Central Bank of Nigeria (CBN) Governor Godwin Emefiele.
Four months after Tinubu took over the reins of power, many of the issues, including the Nnamdi Kanu situation, are still unresolved.
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Curiously, and despite him publicly distancing himself from the Buhari regime’s apparent selective compliance with the rule of law, President Tinubu seems to have started off where the ex-military dictator stopped, at least in two prominent cases. The first is the travails of Emefiele. The other is the continued detention of the suspended Chairman of the Economic and Financial Crimes Commission (EFCC), Abdulrasheed Bawa.
The common denominator in both cases is the self-styled Department of State Services (DSS).
Emefiele has been in the custody of the DSS since June 10, a whopping 94 days, despite having been granted bail.
On July 25, hooded, machine gun-toting DSS operatives went physical with NCoS officials and assaulted an unarmed NCoS Commander in public glare. The secret agency exercised its superior coercive power against pistol and rifle-bearing NCoS officials, who had just received the lawful right to take custody of Emefiele following the bail granted him by the court. Having won the muscle-flexing battle, the DSS whisked Emefiele away.
Emefiele’s re-arrest occurred on the hallowed ground of the Federal High Court in Lagos sitting in Ikoyi after Justice Nicholas Oweibo admitted the embattled apex bank chief to bail in the sum of the N20m.
The judge also ordered that Emefiele be remanded at the correctional centre pending the fulfilment of the bail conditions.
The incident caused public outrage with many Nigerians calling for the head of the DSS’ Director-General. They urged President Tinubu to act.
Senior Advocate of Nigeria (SAN) Jibrin Samuel Okutepa warned that the country was abandoning the rule of law.
Okutepa said: “Nigeria is sliding into dictatorship. Rule of law no more in practice. While we operate the rule of law in theory we operate in practice despotism and totalitarian regime under the colour of democracy. The show of shame today between DSS and Correctional officers supports my position.
“I have always said that those in power operate political vendetta and no rule of law. Why is DSS now all over the place? Is DSS above the law of the land? In a country where rule of law holds sway, the judiciary is respected and nobody is allowed to subvert judicial orders.”
On August 17, even the judge handling the firearms case was forced to slam the government following its continued disregard of its order to allow Emefiele to enjoy his bail.
Justice Nicholas Oweibo said the government had no respect for the rule of law.
He spoke while giving his ruling on the ‘illegal possession of firearms and ammunition” charges against the banker.
The Director of Public Prosecution (DPP) at the Federal Ministry of Justice, Abubakar Mohammed, had filed an oral application seeking the withdrawal of the two-count charge on the grounds of emerging facts and circumstances which require closer investigation.
But chiding him, Justice Oweibo said: “The prosecution has shown that they are not law-abiding and have no respect for the court. The court cannot force them.
“What good will it be for the defendant who is in custody? Of what benefit will it be to keep the file in the court’s docket?”
“To stop the embarrassment of the court and to keep its integrity intact, I believe the proper thing is to allow them to withdraw the charge.”
Like Emefiele, EFCC chair Bawa has also been in DSS custody since his suspension from office by the President and shortly after, was taken into custody by the DSS. He has now been in custody for 82 days without trial.
Many senior lawyers have warned that the government is acting illegally and frustrating the rule of law.
Dr. ‘Kemi Pinheiro, for instance, has urged the Attorney-General of the Federation and Minister of Justice, Prince Lateef Fagbemi (SAN) to effect Bawa’s immediate release
Pinheiro warned that by holding Bawa, the government risked sending the wrong signal to the international community concerning human rights violations in Nigeria.
The senior lawyer’s August 21 letter to the AGF was titled “The continuous and unlawful detention of the erstwhile Executive Chairman of the Economic And Financial Crimes Commission (EFCC), Mr. Abdulrahseed Bawa”.
In it, he noted that Bawa was suspended from office by President Bola Tinubu on June 14 and arrested by the DSS in whose custody he has been since.
Pinheiro said: “Sometime ago, when the public’s curiosity arose on the cause of the purported ‘unlawful’ detention of the erstwhile EFCC Chairman, the officers of the DSS were said to have purportedly stated that the detention of the erstwhile EFCC Chairman was lawful and pursuant to a court order.
“Even while we might believe that his detention may be based on a remand order issued by a court of competent record, it is of utmost importance to draw your attention to the unjustifiable extended duration of this remand order.
“Granted that the said remand order may have been obtained pursuant to section 293 of the Administration of Criminal Justice Act 2015 which provides succinctly on the procedures to be followed in obtaining a remand order, Section 295 of the said Act also provides an opportunity for a suspect to apply for bail during the course of the said remand proceedings or in an entirely independent action.”
The Silk noted that his present concern is that the continued detention may also be construed as violating Section 35(4) & (5) of the Constitution (as Amended.)
The section guarantees the right of every person, where arrested or detained, to be charged before a competent court of law within a reasonable time.
“It is considerably urged by this letter that the rule of law and the interest of justice should prevail and Mr. Abdulrasheed Bawa is released immediately so as not to send the wrong signal to the international community as it relates to human rights violations in Nigeria,” Pinheiro added.
Another SAN, Rotimi Jacobs also joined the call for the release of the suspended EFCC Chairman, Abdulrasheed Bawa.
According to Jacobs, the maximum period in which a suspect can be detained in Nigeria through a remand order is 56 days, but Bawa has been in detention for longer than that, contrary to the rule of law.
He added: “The concern now is not necessarily about the person of Mr. Abdulrasheed Bawa, but the need to respect and observe the rule of law in a constitutional democracy which we practise in Nigeria.
“In every constitutional democracy, any conduct which runs contrary to the rule of law must not only be avoided but must be deprecated by all lovers of democracy.
“As someone who believes in the truism that injustice to one is an injustice to all and as a lawyer, I see it as a point of duty to draw the attention of the relevant authorities to the obvious constitutional infraction and the illegality which the continued detention of Mr. Abdulrasheed Bawa represents and I, therefore call on the relevant authorities to be properly guided and tow the part of justice in the instant case and other similar cases.”
Last Monday, activist-lawyer Femi Falana also warned that the government was breaking the law by its continued detention of Emefiele and Bawa.
He criticised the DSS for refusing to adhere to the rule of law.
He noted that though both men had a penchant for disobeying court orders while they were in office, the DSS was also wrong for ignoring the rule of law by detaining them illegally.
“Indeed, under the Administration of Criminal Justice Act, the cumulative lifespan of a remand order is 56 days. Therefore, having exceeded the detention period permitted by the Administration of Criminal Justice Act and the Constitution of Nigeria, the State Security Service should be directed to release Mr. Abdulrasheed Bawa from illegal custody without any further delay.
“The Federal Government should ensure that the rights of Messrs Emefiele and Bawa are respected by the State Security Service and the office of the Director of Public Prosecution in the Federal Ministry of Justice, even though the duo had a penchant for disobeying the orders of the courts when they were in office.
“The plight of both suspects should be a lesson for all public officers in Nigeria who always behave as if there will be no tomorrow. However, the government which rules by law is under a legal obligation not to breach the fundamental rights of citizens except in a manner prescribed by the Constitution of Nigeria,” Falana said.
Since his inauguration, President Tinubu has shown that he listens. A couple of times, he reversed his decisions, and political appointments following public outcry.
Many Nigerians will now be expecting him to do same in the case of Emefiele and Bawa in the interest of the rule of law