Why Buhari Is Constitutionally Wrong On Sambo Dasuki/Nnamdi Kanu

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In one of his many media interventions this March President Muhammadu Buhari informed a shocked global community of democrats that the Federal Government was not prepared to release former National Security Adviser (NSA), Col. Sambo Dasuki, from detention.

This high profile media statement on the legal challenge facing the erstwhile National Security Adviser Colonel Sambo Dasukiis one amongst many from the mouth of Mr. President just as the matter involving the leader of the Indigenous People of Biafra and Director of the Europe Based Radio Biafra Mr. Nnamdi Kanu got similar media rebuke from President Muhammadu Buhari who proceeded to assert that both cases are so serious that his government isn't prepared to soften the detention measures unleashed on these two individuals.

Not satisfied with the view he expressed in his maiden media chat on this same matter, the president has again restated that Dasuki, who is presently in the custody of the Department of State Services (DSS), has multiple cases in court, which he must diligently face and answer. Mr President also has conveyed the express impression that Nnamdi Kanu has committed serious offence and therefore his government is not prepared to release him based on the numerous bail orders handed down by the different courts.

The Nigerian government under Major General Muhammadu Buhari(rtd) had devised some incongruous means of frustrating the duo from enjoying the previous bail orders by filing multiple charges against these two persons on exactly the same categories of allegations that the Federal Government had given as the reason for their arrest at various times and in unrelated allegations.

Many constitutional experts believe that this method is indecorous and ungentlemanly and indeed inelegant and illegal because it would seem that government is simply scavenging for forum and reasons to ensure that the detention of these persons stays much longer than the Nigerian Constitution stipulates. The Presidency in the following quotations by the Media Aide Garba Shehu clearly employed this same fallacious reason as the justification for the failure of the government under Muhammadu Buhari to comply with the previous bail orders.

Senior Special Assistant to the President on Media and Publicity, Garba Shehu, in an interview with a national paper, explained that the cases against the former NSA were all complicated.

Reacting to criticisms that Buhari does not respect court orders and continues to detain Dasuki, the presidential spokesman said that “the ex-NSA’s problem is not with President Buhari who I must say has the highest regard for the rule of law.”

Garba noted that the president remained the best friend of the rule of law and due process the country has seen so far. The question Garba Shehu left unanswered is why is this 'lover' of principle of rule of law in gross breach of the constitutional principle of SEPARATION OF POWERS? Is it in the place of the President who is the head of the executive branch of government to dictate to the Judicial branch of government which case is serious and which is not? This attitude smacks of executive recklessness and arrogance of the abysmal dimension.

It is ridiculous that the Presidency then proceeded to use a process that is regarded as abuse of court process as the reason for violating the bail orders that competent courts of law granted these individuals. Why a government should file multiple charges in different courts over same allegations is legally incongruous and absurd.

Why should a government file multiple charges against individuals based on similar sets of allegations for which the Government arrested the suspects in the first instance? If you accuse Colonel Sambo Dasuki of allegedly diverting arms fund then why file multiple charges in different courts and if Nnamdi Kanu is facing the so called treason charges then why terminate the matter from one court to another all in an effort to scuttle his opportunity and constitutional right to enjoy the bail orders granted him by those courts from where the government unwittingly terminated the previous charges?

This is a case of clear abuse of the court process and it's shameful that in this 21 st century the Presidency in Nigeria has fallen back to use this indecent and primitive anchor to hold two citizens indefinitely against binding bail orders.

Hear the Nigerian President: "if five courts of the land are trying different cases in which a man is involved and one or two of those courts let the accused persons go home on bail, what happens with the other three cases? “If you are a prisons controller, will you set that person free when you have three other judges directing that he be kept in detention?

“Colonel Dasuki faces a multiplicity of cases and, sadly for him, his hand appears to be showing in more of the cases as recent revelations from the ongoing investigation in the Office of the NSA has shown,” the Presidency added.

But the following constitutional provisions unambiguously states the fundamental rights all citizens must enjoy especially when confronted with charges before the competent courts of law so the accuse can very adequately be allowed to prepare and respond to those charges without encumbrances.

Section 34 (1)(a) (b) of the 1999 Constitution of the federal republic of Nigeria as amended states thus: “34. (1) Every individual is entitled to respect for the dignity of his person, and accordingly ;(a) no person shall be subject to torture or to inhuman or degrading treatment; (b) no person shall he held in slavery or servitude; and” section 35(1)(a)(b)(4)(b) of the same constitution still states: “35. (1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law - (a) in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty; (b) by reason of his failure to comply with the order of a court or in order to secure the fulfilment of any obligation imposed upon him by law;” “(4)(b) three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.”

The treatments meted out to both Sambo Dasuki and Nnamdi Kanu amounts to torture and enslavement which the constitution absolutely prohibits. The Nigerian Government is not permitted to hold any individual as a hostage based on any sets of allegations as long as the Court of competent jurisdiction has already assumed jurisdiction.

The body of Senior Advocates of Nigeria met on March 12th 2016 and expressed strong condemnation of the primitive disrespect of the Courts by the current government. In a recent newspaper publication the body of Senior Advocates of Nigeria condemns all acts of disrespect by any person or agency of government, of valid orders of courts of competent jurisdiction. Indeed to disrespect or disregard court orders is a step towards anarchy, which does not and cannot augur well for a democratic society such as Nigeria.

The Senior Lawyers rightly submitted that the Independence of the Judiciary and Avoidance of Intimidation of Judges are also of priority to the bar.

Their words: "The body is concerned about the spate of disparaging remarks and attacks on the Judiciary and Judicial officers, often made in a generalized manner and perhaps calculated to intimidate and infuse fear in Judges, who are sworn to dispense justice without fear or favor. It is the body’s view that it is unfair to the many honest and hard-working judges in our country, to be painted with the same brush as the few who have been found wanting for misconduct or those who bring the office into disrepute and violate their sacred oaths of office. The body also views as unprofessional situations where lawyers engage in this generalized statements of a disparaging nature".

"The body is also concerned about the evolving practices of delays and non-payment of judges and judicial workers their salaries and believes that this severely undermines the much cherished independence of the Judiciary", the Senior Advocates of Nigeria emphatically stated.

The eminent legal minds affirmed thus: "The right of accused persons to counsel of their choice and the Duty of Lawyers to defend their clients without Fear or discrimination. They reiterates their belief that the harassment and intimidation of lawyers in any form in the course of their legitimate work in unlawful and counter-productive in a democratic society. Such actions are not only unlawful but antithetical to the rule of law.

According to them: " Nothing is further from the truth that once a lawyer undertakes the defense of an accused person particularly a professional colleague, then he must be in active support of the alleged crime or be working against the anti-corruption crusade. The Nigerian constitution, for good reason, presumes a person innocent until proven guilty before a court of competent jurisdiction following a fair hearing, with an opportunity to conduct his defense by a counsel of his choice".

It follows therefore that it is not in the place of Mr President to determine who the Courts should grant bail or not. Garba Shehu who spoke the mind of his principal is therefore in breach of the Constitution to deploy or employ the media rostrum to pontificate on who should be freed on bail by the competent courts of law in Nigeria. Mr President please note that our grund norm states that AN ACCUSED PERSON IS INNOCENT IN THE EYE OF THE LAW UNTIL A CONTRARY DETERMINATION IS REACHED BY A COURT OF COMPETENT JURISDICTION (section 36 (5) ).


*EMMANUEL Onwubiko is Head of Human rights Writers association of Nigeria and blogs @ www.huriwa.blogspot.com, www.rightsassociationngr.com, www.huriwa.org.

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Articles by Emmanuel Onwubiko