Despite being granted bail by the court, former National Security Adviser (NSA) Col. Sambo Dasuki (retd) and Shii’te leader Sheik El-Zakzaki ànd his wife Zainab are still in the custody of the Department of State Services (DSS). No fever than 294 persons are said to be held without charge. The Federal Government has cited national security for the continued detention of Dasuki and El-Zakzaky. To lawyers, there is no justification whatsoever for the government’s action. ADEBISI ONANUGA sought their views.
THE court guides its power jealously. Once it issues an order, it enforces it to the letter. Woe betide the one that disobeys the order.
Former National Security Adviser (NSA) Col. Sambo Dasuki (retd) is fighting the fight of his life. He was granted bail by a Federal Capital Territory (FCT) High Court before which he is standing trial for alleged treason. The Federal High Court where he is also being tried equally granted him bail. But he is still being held in custody by the government for what it cites as ‘national security’. Fed up with the way the government has been treating him, he has vowed not to appear in court again for his trial until the order granting temporary reprieve is obeyed.
The ECOWAS Court of justice, where he challenged his detention, also granted him bail. The court declared his detention illegal, null and void, and awarded him N15 million damages.
Despite meeting his bail conditions, including the deposit of N100 million with the registrar of the Federal High Court, Dasuki is still in the custody of the DSS.
When his case came up before Justice Ahmed Mohammed of the Federal High Court, Abuja, last Tuesday, his counsel, Victor Okwudiri, drew the court’s attention to a letter written and signed by Dasuki.
The former NSA restated his resolve not to appear in court until the government obeyed the court orders releasing him on bail.
Dasuki, in the November 12 letter titled: Unabated Persecution of Mohammed Sambo (rtd) by the Federal Government of Nigeria, asked the court to “absolve him of any obligation of appearing at his trial, since the Office of the DSS, an agent of government detaining him, has also refused to respect the various court orders for his bail.”
He described his detention as wrongful and arbitrary, adding that it amounted to violation of the 1999 Constitution.
He also described the decision to continue to keep him incarcerated as high-handed, arbitrary and in violation of both domestic and international laws on human rights.
Like Dasuki, like El-Zakzaky
Like Dasuki, the Federal Government has also ignored a court order made by the Federal High Court since December 2016 for the release of Sheik Ibraheem and Hajia Zeinab El-Zakzaky from custody.
El-Zakzaky and his wife were arrested on December 12, 2015 by the Nigerian Army following a clash with the Shia Community in Zaria, Kaduna State on the allegation that there was a plot to assassinate the Chief of Army Staff, General Yussuf Buratai.
Although El-Zakzaky was not at the scene of the violent attack, his Zaria residence at was invaded by soldiers. His house was set ablaze. He was shot at, and three of his children were allegedly killed.
El-Zakzaky and his wife were later handed over State Security Service which took them to a detention centre in Abuja where they were detained without any trial for months.
Although a Judicial Commission of Enquiry set up by Governor Nasir Elrufai to probe the clash between the army and the Shiites did not recommend Elzakzaky and his wife for prosecution, the DSS refused to release them from custody.
El-Zakzaky and his wife filed an application at the Federal High Court, Abuja through his lawyer, Femi Falana (SAN) seeking to enforce their fundamental rights to personal liberty, dignity of their persons and fair hearing guaranteed by the Constitution.
In a December 2, 2016 judgment, the Federal High Court declared their detention illegal, null and void and ordered their release. The order is yet to be complied with.
A journalist, Mr. Jones Abiri, was fortunate. After two years in detention, he was freed.
Abiri, publisher of a Bayelsa State-based weekly paper, Weekly Source, was arrested by operatives of the DSS in July 2016.
Based on the instruction of the Committee to Protect Journalists, a Non-Governmental Organisation based in New York, United States, Falana’s law firm filed an application at the Federal High Court to secure the enforcement of Mr. Abiri’s fundamental right to personal liberty.
Because the government could not justify the prolonged detention of the journalist, the DSS arraigned him before a Magistrate Court in Wuse, Abuja accusing him of allegedly sending a text message to an official of an oil company on or about June 26, 2016.
Abiri regained his freedom on August 15 after he met bail conditions which were relaxed by the presiding judge at the Abuja Magistrate Court in Zone 2, Wuse.
Abiri was later acquitted and discharged on September 14 by a Federal High Court, Abuja which awarded him N10 million (about US$27,500) in damages, describing the journalist’s two-year detention without trial as an “outright conviction.”
294 in DSS custody
Falana said his law firm has had a running battle for the last three years with the DSS over incessant arrest and detention of Nigerian citizens and foreigners without trial.
Some, he said, were held in violation of Section 293 of the Administration of Criminal Justice Act (ACJA) 2015.
According to him, 294 persons are still being held without trial in DSS custody.
Two months ago, he asked the DSS to release the names of all persons being held in its custody.
The request, contained in a letter to the acting Director General of the SSS, Mr Mathew Seiyefa, was made under the Freedom of Information (FoI) Act.
Falana claimed to have confirmed from some detainees who have just regained their freedom that not less than 294 others were still being held in dehumanising and degrading conditions in the underground cells located in the headquarters of the DSS at Abuja.
He said as no person could be legally detained beyond 48 hours without a court order.
To Falana, the detention of the 294 persons by the DSS for over two years is the height of official impunity.
He said it constituted a gross infringement of their fundamental right to personal liberty.
To put an end to such prolonged detention of citizens without trial, Falana requested the Chief Judge of the Federal High Court to designate Judges to conduct a monthly visitation of DSS detention facilities and those of other law enforcement agencies in line with Section 34 of the ACJA.
Outrage over order violations
The Federal Government had cited national security to justify its defiance of the court orders.
Speaking at the Nigerian Bar Association (NBA) Annual General Conference, President Muhammadu Buhari sparked a debate on whether national security superseded human rights.
“The rule of law must be subject to the supremacy of the nation’s security and national interest,” the President said.
But the NBA, in the communique issued at the end of the conference, disagreed with the President.
The association said it “completely rejects the presidential statement subordinating the rule of law to national security.”
NBA added: “The NBA restates that the rule of law is central to democracy. Any national security concerns by the government must be managed within the perimeters and parameters of the rule of law.”
Last Friday, the leadership of the Christian Association of Nigeria (CAN) met with the President, urging him to order the release Dasuki, El-Zakzaky and others who have been granted bail but still in detention.
Its President Rev Samson Ayokunle called for “total adherence to the rule of law as is required by our constitution and full-blown democracy by making sure that those whose bails have been granted by competent courts like Col Sambo Dasuki (rtd) and Leader of the Shiites, Malam Ibrahim El-Zakzaky are released from detention to enjoy the bail granted them by the courts of law”.
ECOWAS Court President, Justice Jerome Traore, while flagging-off its 2017/2018 Legal Year in Abuja October last year, ask Nigeria and governments of 14 other member states not to ignore its judgments on cases affecting the interest and well-being of their citizens.
Justice Traore emphasised that considered judgments of the court on cases filed by aggrieved citizens of member states of the regional body were rendered meaningless when they were not respected or complied with.
Lawyers speak
Lawyers have urged the Federal Government to respect court orders.
Those who spoke on the matter include former NBA President Dr Olisa Agbakoba (SAN), a law teacher at the University of Lagos (UNILAG) Mr Wahab Shittu, Committee for the Defence of Human Rights (CDHR) president Malachy Ugwummadu and Access to Justice (A2Justice) Director Mr Joseph Otteh.
Agbakoba said Dasuki’s detention was unconstitutional, adding that he should be released forthwith in accordance with at least six court judgments in his favour.
Shittu emphasised the fact that the court is the last hope of the common man particularly in a democracy.
The Judiciary, he said, exists to regulate the rights of the Executive, the legislature and the citizens at all times.
“The pronouncements of the court are sacred and must be obeyed by all, whether palatable or not. Government has no right to pick and choose what orders to obey.
“lf the government intends to plead National security considerations, the place to make such claims is the court and nowhere else,” he said.
Shittu contended that government has no excuse for disobedience of court orders.
“A disobedience of court orders is a direct assault on the judiciary and should be treated as such. lf a government is displeased with a court order, the option open is recourse to appeal.
“The Constitution does not legitimise disobedience of court orders for security considerations. Even during a state of emergency, the law is not silent and courts still remain active.
“Many of us with sympathy for this Government on account of its moral standing and authority advise the administration to uphold the law by respecting the sacredness of court orders and pronouncements.
“National security derives its protection from the constitution and certainly not superior to the constitution,” Shittu said.
To Ugwummadu, the continued detention of El Zakzaki, his wife and Dasuki against express orders of various courts directing their releases has become “a very sad and an unfortunate commentary on the human rights/rule of law records of the Buhari administration.”
He added: “It casts a long shadow on the claim of the present administration to the respect of rule of law. These decisions of courts include the clear orders of the ECOWAS Court of Justice which the present government has flaunted with impunity.
“Unfortunately for President Buhari, he is currently the Chairman of the ECOWAS superintending the affairs of this sub regional body and disobeying the judgement of its judicial arm.
“Furthermore, by Section 287 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended), every person, authority, institution government or its agent is obligated to respect, obey and see to the enforcement of decisions or judgments of competent courts of justice.
“For as long as the federal government has not appealed or taken other legal steps to reverse the orders of the courts, for that long, they remain the valid orders of competent courts of law and ought to be obeyed and enforced.”
Ugwummadu stated further that “for the 294 suspects still held by the DSS, I strongly condemn such practices of brazen acts of violations of the rights of the victims whose rights to personal liberty, movement and presumption of innocence under S.36(5) of the 1999 Const are abridged and under siege”.
He said the option open to the government is to arraign them before a court of law on the very allegations for which they’re being kept in detention and not to accuse them, declare them guilty of constituting national security and punish by detaining them without trial.
According to him, the law and the ACJA 2015 no longer tolerate awaiting trial inmates.
“In consequence, the Federal Government must allow the judiciary to determine what amount to national security in the circumstances that they were detained.
“Thy victims are advised and would be encouraged to challenge the government, DSS on their illegal detentions,” he said.
Otteh condemned the continued detention of Dasuki and El Zakzaki, saying it was contemptuous of the Judiciary.
“It appears our President eventually walked back those flawed security-over-rule of law comments. And, really, there is no justification to cite security concerns to hold people in indefinite detention in peace time. This is why we have a constitutional democracy, so that the government is a government of limited powers.
“It’s a thing of profound regret that the executive government pokes its fingers in the eyes of a constitutional judiciary and gets away without a rebuke; the same government afterwards runs to a court and expeditiously gets an injunction preventing Labour from embarking on a strike action to press home demands for living wages.
“As it is said, power concedes nothing without a fight, and perhaps this is true here. Without resistance, the executive power will often encroach into the spheres of others, and devise any pretexts to rationalise a self-serving agenda against those it does not like, for example, El Zakzaky.
“This is why we must applaud the legislature for standing its ground when it became a target of executive impunity recently, resisting an obnoxious interference with its operations.”
This, Otteh said, shows that it is not only citizens who must be vigilant over their rights, but other branches of government, alongside the media.
He said without resistance, the executive would simply ride rough shod over everyone.
“Our Judiciary must step up to the plate. It has never been enough, nor will it be, to simply denounce executive arrogance and disrespect for court orders outside of the courtroom or in keynote addresses.
“The Judiciary needs to walk the talk and fight too, and not see itself as a helpless victim because it is not.
“That is what the Pakistani Judiciary did a few years ago when former President Musharaff sought to remove the Chief Justice of Pakistan at that time, Justice Iftikhar Chaudhry from office.
“There are quite a number of other instances where Judiciaries have withstood executive arrogance, and subjected the executive branch to control,” Otteh said.
According to him, to win respect for the rule of law and respect for judicial authority, the Nigerian Judiciary must re-conceptualise the exigencies of its institutional role.
“A weak judiciary won’t be able to rein in a recalcitrant executive, and public confidence in courts will always be diminished if the courts are perceived as powerless to enforce the Constitution.
“Col. Dasuki has asked that he be relieved of the obligation to attend court since the court is not able to get the executive to obey its orders. You can see the disappointment a Nigerian citizen has expressed about the Judiciary. And there may be many people who feel the same way about our Judiciary.
“Our judiciary must wean itself off that antiquated image of a low-lying, sub-servient branch of government, and there is nothing that says this is how a Judiciary should be pictured.
“No one will give credit, or perhaps respect, to a Judiciary that is unable to defend its adjudicational authority.
“Our courts must draw a line under the sand to say, never again! Not even against the most vilified person must we allow the executive this level of arbitrariness because the danger of doing so will sooner or later manifest itself in many other cases,” Otteh said.