Buhari, AGF must obey bail court orders - Falana

 Jonathan Eze 
 News Scroll


A Senior Advocate of Nigeria (SAN), Mr. Femi Falana, has insisted that the federal government must religiously obey court orders on the bail conditions met by the embattled former National Security Adviser, Colonel Sambo Dasuki, and that of the leader of the Indigenous People of Biafra (IPOB), Mr. Nnamdi Kanu.
 
According to him, "In the famous case of Attorney-General of Lagos State v Attorney-General of the Federation (2005) 2 WRN 1 at 150, the Supreme Court held that “In our democracy all the Governments of this country, as well as organizations and individuals must kowtow to the due process and this they can vindicate by resorting to the courts for redress in the event of any grievance.”
 
"One of the reasons why Nigerians voted for the candidate of the All Progressive Congress, General Mohammadu Buhari (rtd) during the last general election was his promise to fight corruption and end impunity in the country. Upon winning the election, President Buhari further pledged to abide by the Rule of Law.
 
"To that extent, he has a duty to ensure that all organs and officials of the Government operate within the ambit of the law. In particular, he should not allow overzealous security personnel to engage in any form of impunity and thereby expose the Government to unwarranted embarrassment.
 
"In July last year, the State Security Service (SSS) searched the private residence of former NSA, Col Sambo Dasuki (rtd) at Abuja.
 
"When Col Dasuki alleged that his house was illegally searched, I pointed out that the action of the SSS was justified as there was a search warrant validly issued by a magistrate court in the federal capital territory that authorised the search. He was eventually charged with money laundering and criminal diversion of huge sums of public fund before the Federal High Court and the Federal Capital Territory High Court at Abuja.
 
"Notwithstanding the gravity of the offences, both courts have admitted him to bail. But after he had met the bail conditions the SSS decided to rearrest him at the gate of Kuje prisons on the ground that investigations have not been concluded in respect of other criminal allegations.
 
"The decision of the SSS to ignore the order admitting Col Dasuki to bail coupled with the failure to re-arraign him on fresh charges is tantamount to impunity in every material respect. If the federal government were aggrieved by the order admitting Col. Dasuki to bail it should have challenged it in the Court of Appeal.
 
"Much as the Nigerian people are fully behind the Buhari Administration in the patriotic move to recover the looted wealth of the nation, the federal government should be advised to ensure that the procedure for the loot recovery meets the tenets of the rule of law.
 
"The SSS and other security agencies should therefore refrain from allowing corruption to fight back by playing into the hands of the criminal suspects who have committed crimes against humanity by diverting money earmarked for the procurement of arms and armament to fight the terrorists.
 
"In the same vein, the order admitting the leader of the Indigenous People of Biafra, Mr. Nnamdi Kanu, to bail should also be complied with.
 
"If the federal government has other charges against both suspects it should file them in the court. There is no provision for keeping criminal suspects at the pleasure of security officials. Meanwhile, all valid and subsisting orders made by courts in favour of criminal suspects should be obeyed without further delay.
 
"To ensure that suspects are no longer held in custody in any part of Nigeria without any legal justification, section 34 of the Administration of Criminal Justice Act has imposed a duty on each Chief Judges to designate a Chief Magistrate and a Judge of the High Court to visit all police stations and other detention centers within their jurisdiction, at least once a month.
 
"During such visits, appropriate directives shall be given while any officer who detains any person illegally will be sanctioned."

Why Buhari Is Right In Detaining Nnamdi Kanu And Dasuki.... The Position Of Law

Ever since some law courts admitted former National Security Adviser Col. Sambo Dasuki (rtd.) and Biafra agitator Nnamdi Kanu to bail and they were not promptly released, there has been lots of hot air released, either backing or attacking their continued detention.

Today, I write to say that I think President Muhammadu Buhari (PMB) and the Federal Government are right in law, contrary to the loud crowd’s assertion of ‘human rights’. first, let me state it clearly here, I am not against anybody nor group, but we must always do things in accordance with the laws of the land.

The detention of Col. Sambo Dasuki (rtd.) and Nnamdi Kanu has generated a lot of debate and even criticisms against the Federal Government and the person of the President of the Federal Republic of Nigeria, Muhammadu Buhari (PMB). These criticisms reached their peak after the President’s responses to some questions on the issue in his maiden presidential media chat of Wednesday December 30. Some legal luminaries and human rights activists vehemently contend that the Government violated court orders granting the said accused persons bail.

The Vanguard of Monday January 4 reported several senior lawyers, including the current NBA president, contending that the Government is guilty of disregarding court orders on the issue. Some argue that the Federal Government should have released Kanu or deported him after seven days. These critics have turned the trial of the duo into the trial of the State that is accusing them. I put it to 2/3 of Our so called lawyers even those in the rank of SANs that they do not know the true position of our laws. most of them who claim to be so good and sound in the field of law do not know the law itself. Even the ones claiming to be standing for Nnamdi Kanu and Dasuki do not know the true position of laws of the land.

The one million dollar question now begging for answer is therefore: Is the Federal Government really in breach of Court Orders? The answer to this question is NO. Let me say outright here that the President’s opinion on this matter is in accord with the judgement of the Supreme Court in Dokubo-Asari v. F.R.N. (2007) All FWLR (Pt. 375) p. 558 where the Supreme Court held at page 585 thus:

“…Where national security is threatened or there is the real likelihood of it being threatened, human rights or the individual rights of those responsible take second place. Human rights or individual rights must be suspended until the national security can be protected or well taken care of. This is not anything new. The corporate existence of Nigeria as a united, harmonious, indivisible and indissoluble sovereign nation is certainly greater than any citizen’s liberty or right.”

This is the law as enunciated by a unanimous decision of the apex court of the land during Yar'dua regime. The law is what the courts say it is, and not what we see in statute books. Therefore, PMB’s opinion on this matter is more in tandem with the spirit of the constitution and the law than that of those senior legal minds and human rights activists.
It is true Kanu was granted bail on October 17. On the day he claimed to have perfected his bail conditions, he was already too late as the Attorney General of the Federation (AGF) had already filed a fresh six-count charge against him. Thus, in law, Kanu was released on bail for the earlier charges and then re-arrested on the new charges, which charge sheet was served on him the day he perfected those conditions.

When Kanu was arraigned on the fresh charges before Justice Ahmed Mohammed of the Federal High Court, he declined to enter his plea and objected to the jurisdiction of the court to try him, accusing the judge of bias. Consequently, the judge rightly disqualified himself and remitted the case file to the Chief Judge for redirection.

Like Kanu, Dasuki and three others were arraigned before the High Court of the Federal Capital Territory by the EFCC on a 19-count charge bordering on money laundering and criminal breach of trust. On December 18 Dasuki and others were granted bail on the said 19-count charge. The former NSA perfected his bail conditions and was released on bail. Later, the government found fresh pieces of evidence against him and he was re-arrested and re-arraigned on a 22-count charge.

He was again granted bail and, after his release, the government re-arrested him at the gate of the court on yet another fresh set of charges.

The law is settled that any bail granted an accused is completely related to the offence(s) for which he is charged. So, if after he has been granted bail the prosecution charges him for another offence for which no bail has been granted and no plea taken, then the accused can be re-arrested.

Some of the lawyers seem to have admitted this leg of the argument. However, the problem they seem to have is the timing of the re-arrest. They opine that even though the Government has a right to re-arrest them on fresh charges, that should not come immediately after release. They further reason that the FG should have lumped the charges together instead of bringing them piecemeal.

Again, these submissions are without any basis. It is within the exclusive prerogative of the prosecution (and not anybody else) to decide whether, when and how to charge accused persons. In these matters, the AGF is the law unto himself! He is not subject to the control of anyone as far as the exercise of his powers is concerned. See State v. S.O. Ilori & 2 others (1983) 2 S.C. 155 and Amaefule v. State (1988) 2 NWLR (part 75) page 156.

One lawyer argued that Kanu should have been released after seven days of detention or deported from Nigeria in accordance with the Immigration Act. The lawyer even initiated an online petition on December 31 calling on the President to resign from office or be impeached for the alleged breaches. It was countered by another petition of Buhari supporters on www.ipetition.com <http://www.ipetition.com>. At the time of writing (noon Friday January cool, the anti-Buharis have gathered 2,997 signatures in 9 days while the pro-Buharis have gathered 12,343 in 5 days, and still counting.

This aside, is seven days detention and/or deportation the punishments for the offence Kanu is charged with? Kanu is facing a 6-count charge, one of which is treason. By section 41 (c) of the CCA, treason is a capital offence which attracts the Death Sentence. It is a matter of common knowledge that Kanu has threatened to wage war against Nigeria and has taken several steps to make his threat real.

Dasuki, on the other hand, is charged with crimes bordering misappropriation of funds set aside for the procurement of arms to battle the Boko Haram insurgency and illegal possession of firearms. Furthermore, there is the fear he may jump bail; in fact he has said he wants to jet out to receive ‘medical attention’ abroad; the habit of many a high profile figure charged with crime.

And could the opinion of the President in the said media chat influence the judge? It depends: for some judges it may make no difference; for some, it may influence the judge against the accused persons; for yet others, it may influence them in favour of the accused persons (true for judges who want to assert their authority and independence). There is no certainty as to whether and in which way the influence of that opinion goes.

So, finally, we resort again to the Supreme Court “Where national security is threatened…individual rights of those responsible take second place...” and say PMB is right by law. At this point, I am calling on my Igbo brothers to come back home. Let us reason on the way forward. Violence does not pay. I call upon the wife of Late Ikemba Ndi Igbo as a matter of urgency to build a sound and digital Library for Ikemba if it at Nnewi His Country Home or at Enugu where people mostly the younger generation who did not witness the Civil war to know more and equally to tap from what went wrong in the past and the way forward. Before 2011 elections, when IBB visited Ojukwu at His Residence before the Northern Elders did mock primaries between Atiku and IBB, Ojukwu addressed Ndi Igbo urging us to support the Northerners. what happened the press statement. I will come up with issue and many more at appropriate time. I rest my case.