Being the paper presented at the 2019 Human Rights Day symposium organised by the Nigerian Bar Association (Ikeja Branch) on December 10, 2019.

Introduction

At the 30th anniversary ceremony of the Committee for the Defence of Human Rights which held in Lagos in May this year, I was compelled to express regret over the proclivity of the elected Buhari administration to disobey orders of courts. The embarrassing development is an irony because the dreaded Buhari military junta had complied with all orders of Nigerian courts for the release of political detainees and criminal suspects from custody. A respected colleague in the human rights community had questioned my historicity. I pointed out that apart from handling fundamental rights cases for some political detainees at the material time I was personally incarcerated without trial under the obnoxious State Security (Detention of Persons) Decree No. 2 of 1984 by the Buhari military regime. Hence, I am in a vantage position to speak authoritatively on a regime whose human rights record was despicable.

Suspension of the Constitution by military dictators

In January 1966, the Constitution was suspended while fundamental rights were put in abeyance by the military junta which sacked the Tafawa Balewa administration. To justify the detention of citizens without trial the Aguiyi Ironsi regime issued individual detention orders for detainees. But the Yakubu Gowon regime discarded the practice and promulgated the State Security (Detention of Persons) Decree No 24 of 1967. The Decree was grossly abused as critics like Wole Soyinka, Gani Fawehinmi, Tai Solarin, Aper Aku, Air Iyare etc were detained without trial. Despite the fact that the country was under the jackboots the courts never hesitated to order the release of several persons whose detention was found to be patently illegal.

The locus classicus during the era was the case of Agbaje v Commissioner of Police (1967) NMLR 65 wherein Akinola Aguda J. (as he then was) struck down the detention order and released the applicant, who was then the lawyer of the Agbekoya farmers in the Western state. The judgment was upheld by the Western State Court of Appeal which commended the trial judge for treating the matter with admirable dispatch and exceptional courage. While the Murtala Mohammed regime never detained any person under the preventive detention decree the Olusegun Obasanjo regime invoked it to detain some progressive lecturers, student leaders, trade unionists and other critics of his regime. But following the termination of military rule in 1979 the fundamental rights of citizens were restored. Consequently, the courts regularly ordered the release of citizens who were detained illegally and awarded damages to them in deserving cases.

State Security (Detention of Persons) Decree No 2 of 1984

Sequel to the coup d’e tat led by Major-General Muhammadu Buhari which sacked the elected Shehu Shagari administration in December 1983, the Constitution of the Federal Republic of Nigeria, 1979 was suspended and replaced with the Constitution Supremacy Decree No 1 of 1984. As the fundamental rights of Nigerian citizens were suspended the junta embarked on indiscriminate arrest and detention of politicians, activists, journalists and many other citizens without trial. The State Security (Detention of Persons) Decree No 2 of 1984 was promulgated by General Buhari to authorise the detention of anyone who was alleged to have contributed to the economic adversity of the nation or who was concerned in acts prejudicial to State Security or in preparation or instigation of such acts. The Decree effectively ousted the jurisdiction of the courts.

For the avoidance of doubt, Section 4 (1) of the Decree provided that “No suit or other legal proceedings shall lie against any persons for anything done or intended to be done in pursuance to this Decree.” Under the authoritarian regime the law was subjected to uncontrolled abuse by the notorious National Security Organisation and other security agencies. Indeed, some detainees who were classified as extremists were locked up in harsh conditions in the mosquito infested Ita Oko secret prison, in the swamps of Lekki Lagoon, cut out of the dense jungle that engulfs Lagos. Detainees were dropped in the dungeon either by boat or helicopter.

Compliance with court orders for release of political detainees

However, notwithstanding the ouster of the jurisdiction of the courts, the legal validity of many detention orders was successfully challenged in the various high courts. As the seat of power was then in Dodan barracks in Lagos, majority of the habeas corpus or fundamental rights cases were filed in the Lagos high court. To the...
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