Nigerian Bar Association (NBA) and some leading lawyers in the country have disagreed with the Presidential Committee on anti-corruption led by Professor Itse Sagay over President Muhammadu Buhari’s insistence that the former National Security Adviser (NSA), Col. Sambo Dasuki, and the leader of the Indigenous People of Biafra (IPOB), Mr. Nnamdi Kanu who are facing separate criminal charges, would not be released from custody, despite valid court orders that granted them bail.
In his submission on the President’s stance, Professor Sagay argued that the Federal Government was not in violation of the rule of law as any bail granted an accused is completely related to the offence which he is charged before the court.
The NBA and some Senior Advocates of Nigeria, however, contended that the position the President took was offensive to the tenets of constitutional democracy, rule of law and presumption of innocence of an accused person. They argued that re-arresting someone immediately after the court has granted such person bail makes mockery of our democracy which is presumably anchored on the rule of law and separation of powers.”
Buhari had in his first presidential media chat at Aso Rock Villa in Abuja, adduced reasons why the Federal Government would not readily allow both Dasuki and Kanu to regain their freedom from detention.
Whereas Kanu, who is facing a six-count charge bordering on treason, has been in detention since October 14, 2015, when he was arrested by operatives of the Department of State Service (DSS), the former NSA, who is facing multiple charges before three different courts, was re-arrested last week at the gate of Kuje Prison, Abuja, shortly after he perfected all his bail conditions.
Responding to a question during the media chat, President Buhari justified the continued incarceration of the two accused persons. He said considering the weight of the allegations against them, they could jump bail if granted any form of freedom.
He said: “Technically, if you see the kinds of atrocities these people are believed to have committed against the country, if they are given the opportunity, they will jump bail. And the one you are calling Kanu, do you know he had two passports – one Nigerian, one British – and he came into the country without any? Do you know he brought equipment into this country and was broadcasting Radio Biafra? Which kind of government do you think should harbour that kind of person? There is a treasonable felony suit against him and I hope the court will listen to the case.”
Rule of law must be respected — NBA
But the President of Nigerian Bar Association (NBA) Augustine Alegeh (SAN), said the “government has a need to respect the rule of law. As a matter of fact, there is need for government to be on the front burner in the respect for the rule of law. Whoever is unhappy, including government with a pronouncement of the court, has the opportunity of still going back to that court, for the court’s decision to be vacated or appeal to a higher court, but not to undertake to ignore it or carry on as though nothing has happened or that the court’s order is not binding. That is an unacceptable principle in the rule of law”.
According to him, “An agenda for the respect of rule of law is a must for the government. For specific cases in court, it’s not the business of the Nigerian Bar Association to make comments on them, because we have our members on both sides and they can decide to speak on the matter. But on the general principle of rule of law, as an association, it is one area we are passionate about, which we feel is very essential.
“So, both the government and citizens must subscribe to the principles of rule of law and doing otherwise is not an option. You cannot pick and choose which court order to obey. If you try to do that, you are clearly undermining the principle of rule of law and the obvious consequence will not help the society in anyway.
“We believe that from our interaction with the government of President Muhammadu Buhari, they do not have an option but to obey court orders. You must bear in mind that the courts are there to settle disputes between individuals as well as between government and individuals. So it is important that all parties respect the rule of law and judgments and decision of courts as that is one area we will not compromise.”
SANs fault Buhari
Moreover, the senior lawyers also faulted the President on the matter, saying the position he took was offensive to the tenets of constitutional democracy, rule of law and presumption of innocence of an accused person.
The lawyers further advised the President to, in future, allow the Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami (SAN), to handle such topics on behalf of the government.
According to Mahmud Magaji (SAN), “Going by provisions of our extant Constitution, the presumption is that a person charged to court for whatever offence is innocent until guilt is established. Unless I am told that the Constitution was amended last night. That you level an accusation on someone does not make the person guilty automatically. If it is so, why then are the courts there? What we are practising is constitutional democracy. Anyway, I did not listen to the media chat and cannot therefore speak much on the issue”.
Chief Joe Agi, SAN, said: “I really want to believe that the President did not mean what he said. I have a feeling that what he wanted to say was that though granted bail, if there are other cases against the accused persons, they could be re-arrested, notwithstanding the pending case.
“It will be totally wrong to refuse to release someone on bail in the absence of any pending allegation. Clearly, I am so sure that what the President meant to say was not what he said or what was understood. We should also appreciate the fact that he is not a lawyer.
“If I am to advise the President, I will say he should in future, leave such issues to the Attorney General of the Federation to clarify”.
Another SAN who spoke on ground of anonymity on the basis that he was “among the persons that fought to bring this government to power”, said: “I will say that the President’s statement is an infringement on the concept of separation of powers. No matter how strongly one feels about the culpability of any accused person, once an order has been made, the Executive is bound to obey.
“Even if you have other crime allegation against an accused, you must first of all respect an order for bail, and maybe re-arrest the person later to answer to the fresh charge. However, for the President to say that the accused persons will not be released from detention because of the gravity of charge against them is an affront on the hallowed principle of separation of powers.
“Such things were never supposed to be voiced out by any person under a democratic government, not to even say the President. It is unfortunate, though the Presidency has come out to clarify. As the President of Nigeria, one can hardly separate Buhari from the Presidency. Nevertheless, for them to come out to clarify the issue shows deference to public outcry”.
Expressing his view on the matter, a constitutional lawyer, Mr. Festus Ogwuche, said: “The President got it wrong. No matter the number of allegations against an accused person, once the matter has been charged before a competent court, that court assumes powers to determine whether or not the person deserves bail.
“Court orders are made to be obeyed, if not, it becomes impunity. No matter the gravity of the offence, an accused is presumed innocent until proven guilty. Proper investigation ought to have been conducted and concluded before a person is charged. Re-arresting someone immediately after the court has granted such person bail makes mockery of our democracy which is presumably anchored on the rule of law and separation of powers”, he added.
It’s not a breach of rule of law—Sagay
Meanwhile, justifying the continued detention of Col. Dasuki (rtd) and Kanu, legal icon, Professor Itse Sagay (SAN) said the Federal Government was not in violation of the rule of law.
He said: “The way I see it is that any bail granted an accused is completely related to the offence which he is charged before the court. So, if after he (the accused) has been granted bail and the prosecution discovers another offence for which no bail has been granted, then the accused can be re-arrested. So, that cannot be in violation of a bail, which is in relation to an earlier stated offence.”
Sagay, who is also the Chairman of the presidential committee on anti-corruption was quick to point out, “I do not know the full facts; but what I am saying is that if this re-arrest arises out of fresh offences, which are not part of the ones for which the person had been granted bail, then there is a right to arrest. This is not a breach of the rule of law.”