Funmilayo Odude, Legal Practitioner, Damod Law Practice

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Nigeria needs the rule of law for progress 16 Jan 2020

On the 24th of December, 2019, the Federal Government of Nigeria, through the Attorney General of the Federation (AGF), Abubakar Malami SAN, announced that it would release former National Security Adviser, Sambo Dasuki, and former presidential candidate, Omoyele Sowore, from the custody of the Department of State Services (DSS). The AGF gave the reasons for their release as “commitment to the rule of law, obedience to court orders and compassionate grounds.”
The government freed these men from detention after the DSS committed one of the most shocking, shameful, despicable and disgraceful desecrations of the judicial arm of government. On the 6th of December, 2019, armed officers of the DSS, Nigeria’s ‘secret police,’ stormed the Federal High Court in Abuja to re-arrest Sowore, less than 24 hours after releasing him on bail. Sowore, whose trial had just been adjourned, and his supporters were stepping out of the courtroom when they saw the armed men. They then retreated into the courtroom.
The commotion that followed caused the judge to flee into her chambers. This incident understandably generated a lot furore and criticisms both locally and globally.

Before Sowore was briefly released on December 5th and prior to the AGF’s intervention, the DSS had come up with several frivolous excuses for keeping him and his co-accused, Olawale Bakare, in detention even when they had met their bail conditions. After his re-arrest, he was contemptuously held in detention without another charge and without any explanation whatsoever.

What made the actions of the DSS particularly abhorrent was not just that the agency disobeyed court orders granting accused persons bail, the DSS completely disregarded the legal process.

On the very day Sowore was re-arrested, the prosecution could have made an application to revoke his bail on whatever grounds it could successfully argue. But the agency jettisoned judicial and due processes, choosing rather to use brute force on the political activist and took him into their custody.

The International Institute for Democracy and Electoral Assistance (International IDEA), in its publication, “A Practical Guide to Constitution Building: Principles and Cross-cutting Themes,” (Stockholm 2012, pp. 17-18) rightly stated as follows: “The judiciary, which applies the law to individual cases, acts as the guardian of the rule of law. Thus, an independent and properly functioning judiciary is a prerequisite for the rule of law which requires a just legal system, the right to a fair hearing and access to justice.” Nigeria cannot, therefore, be said to be promoting the rule of law when an agency of the government thwarts judicial processes and acts above the law with impunity.

Former Secretary General of the United Nations (UN), Kofi Annan, in his 2004 report on the rule of law, defined the concept as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.” He further stated that the rule of law requires “measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency.”

Nigeria’s criminal laws permit the courts to admit accused persons to bail pursuant to Section 36(5) of the Constitution, which provides that “every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.” The court or the judiciary is the ultimate organ of government to determine the deprivation of the personal liberty of a person. Security agencies can only hold accused persons for a temporary period not exceeding 24-48 hours without court interference. Their duty, in this regard, is to arrest on suspicion of commission of an offence, to investigate, and charge to court. The agencies can diligently prosecute the charge within the court hierarchy and abide by the decision of the court at every stage. It is not within the purview of any security agency to determine the guilt of an accused person or unilaterally detain him or her.

What was perhaps more worrying than the unlawful actions of the DSS was what appeared to be the tacit approval of same actions by the Presidency. On the one hand, the AGF seemed to be embarrassed over the invasion of the court by the DSS and took steps to remedy same, including ordering the release of Sowore and Dasuki and exercising his powers to take over their trials. On the other hand, the Special Adviser to the President on Media and Publicity, Femi Adesina, had down-played the outcry the re-arrest of Sowore generated. In a television interview, Adesina had stated that: “there are millions and millions of people who are not bothered.”

It is important to note that while the executive has remedied the situation with respect to Sowore and Dasuki, there are still many detainees being held in violation of court orders admitting them to bail, including Jones Abiri, Editor and Publisher of the Weekly Source newspaper. While these cases validly denote violations of the rule of law, they also distract from the substantive criminal charges against the individuals. Their continued detentions do not provide the opportunity to determine either their guilt or innocence.

No democracy can survive without a strong and independent judiciary. With all the challenges Nigeria’s judicial arm of government faces, to add blatant and complete disregard for its powers and processes would undermine our democracy faster than anything else will. This has caused the palpable feeling among the citizenry that Nigeria is inching closer to an autocracy. This is coupled with the 9th National Assembly’s consideration to maintain an ally relationship with the executive arm of government, downplaying constitutional checks and balances and its oversight function.

Nigeria’s democracy, and indeed its economy, cannot thrive as long as government agencies and officials do not work hard to entrench the rule of law. In its Declaration of the High-level Meeting on the Rule of Law, the United Nations, in 2012, stated, among other things, that: “the advancement of the rule of law at the national and international levels is essential for sustained and inclusive economic growth, sustainable development, the eradication of poverty and hunger and the full realization of all human rights and fundamental freedoms, including the right to development, all of which in turn reinforce the rule of law.” One of the critical factors that have now been universally recognized for sustainable economic development is adherence to the rule of law.

As stated by former United States Ambassador to Nigeria, John Campbell, in an article published by the Council on Foreign Relations, DSS's actions of December 6th have already dented Nigeria's international reputation. The government has subsequently taken the right action by releasing two of its political detainees. For a nation that is seeking foreign investment, the government needs to take the necessary actions to improve its image by upholding the rule of law.
Foreign investors and businesses in Nigeria require a society that protects individual rights, promotes equal treatment under the law, and advances access to opportunity for all. Equally important, Nigeria needs to have a working dispute resolution mechanism through a strong, independent and respected judicial arm of government for its economy to thrive.  

As we begin another year, let us realize that many of the dreams, visions and aspirations of hardworking Nigerians will depend largely on how well the government and the citizens adhere to the rule of law. The UN Commission on Legal Empowerment of the Poor says it best in its 2008 final report: “The rule of law is not a mere adornment to development; it is a vital source of progress. It creates an environment in which the full spectrum of human creativity can flourish, and prosperity can be built.”

I wish everyone a happy new year. May the rule of law prevail in our country in 2020.