Disobedience of Court Orders: Nigerian Judiciary under Buhari’s Spell?

By Olu Ojewale 

It is common knowledge that the President Muhammadu Buhari administration is notorious for disobeying court orders. It also appears that legal practitioners are unwilling to confront the government to do the needful and stop undermining the integrity and independence of the Nigerian judiciary

IT was a clarion call on Tuesday, February 28, to the President Muhammadu Buhari administration to right the wrong being inflicted on the Nigerian judiciary. That day, some prominent Nigerian Igbo professionals dropped their political toga and rose up to demand the release of Nnamdi Kanu, leader of the Indigenous People of Biafra, IPOB, who is facing a five-count charge bordering on treason. He has been in detention since October 14, 2015, when he was arrested by operatives of the Department of State Service, DSS. Although Kanu has been granted bail by the trial courts, security apparatus of the federal government have largely snubbed those court orders.

Perhaps, this and the frosty atmosphere over the political situation in the country prompted the Igbo professional group to rise in unison for the rescue of the young revolutionist. Ahead of the call, the leaders of the group such as Charles Soludo, a former governor of Central Bank of Nigeria; Pat Utomi, a professor of Business Economy; Chidi Odinkalu, a professor of Law; Ebere Onwudiwe, a professor of Political Science, and Udenta Udenta, national secretary of the Alliance Democracy, AD, among others, had paid Kanu and his co-travellers a visit. The group while admitting that the call for self-actualisation was becoming strident than before, voiced out its concern that Nigerians should be held in custody beyond what is permitted by law as well as government’s lack of respect for court orders.

The group, in a statement read by Soludo, condemned the federal government for failing to obey court orders, saying such act of disobedience to court orders would jeopardise the integrity of the judiciary and democracy in Nigeria. According to them, the government’s decision to obey favourable court rulings is unhealthy for the peace and democracy in Nigeria.

“Government has declined to obey the orders of properly constituted courts in Nigeria for his release. Nnamdi Kanu is not above the law; but nor should he be put beneath it. A situation where the state refuses to obey clear and legitimate court orders for his release and holds him until it gets a favourable order moves the goalposts endlessly through endless amendment of the charges against him; and now seeks to try him in secret clearly constitutes circumstances that would fall well short of the constitutional guarantees of due process.

“These also would raise questions about our country’s adherence to human rights, the rule of law and transparent judicial process. We worry that there is now a clear design to place Nnamdi Kanu beneath the law and basic constitutional guarantees of due process,” they said.

They added that Nigeria cannot thrive in an atmosphere devoid of democratic freedom of speech. “No country has prospered by suppressing legitimate agitations or democratic expressions. Nigeria has greatly come short on these counts. Most discerning patriots have come to the conclusion that Nigeria as currently structured and governed is unsustainable and drifting to a failed state status,” they added.

Indeed, Kanu and his co-travellers are not alone in their travails. Both Sambo Dasuki, a retired colonel and a former security adviser to former President Goodluck Jonathan, and Ibraheem El-Zakzaky, leader of the Islamic Movement in Nigeria, also known as the Shi’ite Sect, and Zeenat, his wife, have had cause to take their cases courts to enforce their fundamental rights. While Dasuki headed for the regional court of the Economic Community of West African States, ECOWAS, Zakzaky went to a federal high court in Abuja. Both courts granted their prayers, but the government refused to obey court orders.

Dasuki, who is facing trial for allegedly diverting and sharing over $2.2 billion dollars meant for arms procurement for the anti-Boko Haram war to politicians and cronies, has been in detention since December 2015, despite being granted bail by three different courts. Apparently frustrated by government’s refusal to allow him out on bail, Dasuki approached the ECOWAS court to enforce his rights.

Interestingly, at the ECOWAS court hearing in May 2016, Williams Obiora, an operative of the DSS, said that Dasuki was arrested and kept in custody for his personal security in view of allegations against him on arm purchase and to also prevent him from possible escape from justice.

Obiora told the court: “There are two basic reasons why he is still in our custody. One, for his own interest; for his own personal protection because some of the politicians implicated in the arms deal from the intelligence available to us… Two, there is intelligence indicating that he can get out of this country thereby evading justice. These are the two main reasons.”

Answering to a question, the DSS operative said: “He (Dasuki) does not need to make a request before we give him protection if his life is in danger, and we owe him a responsibility to ensure he suffers no harm.” He also agreed that Dasuki’s detention was not pursuant to any judicial proceedings.

Nevertheless, Roberts Emukperuo, lawyer to Dasuki, said that there was no need keeping his client in protective custody because he never requested protection from the DSS or anybody. Besides, Emukperuo tendered an affidavit by the DSS confirming that as at August 24, 2015, the DSS had completed its investigation and therefore, queried the need for Dasuki’s re-arrest.

On Tuesday, October 4, 2016, Justice Friday Nwoke, presiding judge of the ECOWAS court ruled that the arrest and detention of Dasuki as unlawful and arbitrary. The court also held that the further arrest of the former NSA by government on November 4, 2015, after he was granted bail by a court of law, amounted to a mockery of democracy and the rule of law.

Consequently, the ECOWAS court ruled in favour of Dasuki and directed that the federal government should pay him a sum of N15 million as damages. Dasuki had taken the federal government before the regional court demanding his release and also a payment of N500million as compensatory damages for his unlawful detention and seizure of property since December 2015. Up to the time of writing this report, Dasuki is still in detention, but the trial in his case with the federal government has started.

Also languishing in detention as Kanu and Dasuki are the El-Zakzaky couple.

Just like Kanu and Dasuki, an Abuja division of the federal high court on Friday, December 2, 2016, ordered the release of the Shi’a leader and his wife. El-Zakzaky was arrested by the military on December 14, 2015, after a clash between his movement and officers of the Nigerian army. The Army killed at least 347 members of the group.

After several months in detention without trial, El-Zakzaky approached the court to demand his release, saying that his arrest and continued detention violated his fundamental rights.

Delivering the judgement, Justice Gabriel Kolawole, rejected the submission of Tijjani Gazali, counsel to the DSS, Tijjani Gazali, on why El-Zakzaky was kept in protective custody of the DSS. Kolawole ruled that the decision to hold the Islamic cleric and his wife for their safety was not based on law. “I have not been shown any incident report or any complaint lodged by residents around the neighbourhood that the applicant has become a nuisance to his neigbourhood,” said the judge.

He said the decision of the government to hold the applicant for so long amounted to great danger. Citing the death of former leader of the Boko Haram leader, Mohammed Yusuf, the judge said; “If the applicant dies in custody which I do not pray for, it could result in many needless deaths”.

Kolawole said the government should within 45 days release the applicant and his family to the police, who shall within 24 hours take them, guarded by escort, to a safe place.

He added that the DSS should pay a fine of N25 million each to El-Zakzaky and his wife, making N50 million.

The 45-day ultimatum given to the DSS and the office of the Attorney General of the Federation, AGF, had expired on January 17, 2017. Following the expiration of the court’s ultimatum, the couple, through Femi Falana, SAN, filed before the court a ‘Notice of consequence of disobedience of order of court’, otherwise referred to as FORM 48, on January 20, 2017.

Joined in the suit are Lawal Daura, director-general of the DSS, and Abubakar Malami, AGF and minister of Justice, as the alleged contemnors who had refused to comply with the court’s judgment. Contained in the Form 48, is a warning to Daura and Malami that they would be guilty of contempt and be liable for imprisonment if they further failed to comply with the court’s judgment.

Two days after the expiration of the ultimatum given by the court, the AGF on January 19, 2017, filed an eight-ground notice of appeal against the court’s judgment.

Falana, however, said the appeal had no effect on the enforcement of the court’s judgment. He argued: “No motion for stay. Even if they filed one it will be an exercise in futility as it has been held that the liberty of a citizen cannot be stayed. Even under a military dictatorship, the Court of Appeal held in Nigerian Army v Mowarin that once the release of anyone has been ordered, a motion for stay of execution cannot be granted to prolong an illegal detention. That law has not changed. I want to believe that that is why the federal ministry of Justice did not file any motion for stay of execution.”

The flagrant disobedience of court orders appears to be typical for the Buhari administration as the Amnesty International itself observed in the El-Zakzaky case. “The 45 day deadline given for their release expires today. If the government deliberately disregards the orders of its own courts, it will demonstrate a flagrant – and dangerous – contempt for the rule of law,” Makmid Kamara, interim director of the Amnesty International Nigeria, said.

“El-Zakzaky is being unlawfully detained. This might be part of a wider effort to cover up the gruesome crimes committed by members of the security forces in Zaria, in December 2015, that left hundreds dead,” Kamara said further.

Olisa Agbakoba, SAN, a former president of the Nigerian Bar Assocaition, NBA, similarly expressed concern and called on the Buahri administration to obey court orders. He warned: “No Nigerian security agent has the right to keep anybody under any form of custody without due process. For any reason, protective custody is under Decree 2.”

Monday Ubani, a serving second vice president of the NBA, also warned government against the consequences of disobeying the order. Ubani said: “If they fail, then there could be a contempt of court against the federal government and this is not the best for the government at this crucial time…. If the court of the land has given its decision on any issue, it must be obeyed.”

Apparently worried by the trend of disobedience of court orders perforating to various segments of the country, the House of Representatives, on Thursday, January 26, resolved to investigate all cases of unlawful arrest and detention of Nigerian citizens by the DSS as well as disobedience to court orders. The House also directed the DSS to immediately release National President of National Youth Council of Nigerian, NYCN, Ikenga Ugochinyere, Ugo Apuamagha, Emeka ldibia, and Ejike Nwachukwu, who were arrested on December 22, 2016, for allegedly planning a protest or charge them to court without further delay.

The House, in its resolution, mandated the Committees on Human Rights, Police Affairs, National Security and Intelligence and Justice to investigate the incident and all other cases of unlawful and arbitrary arrests and detention of citizens and disobedience to court orders since June 2015 and report back to the House within four weeks for further legislative action.

The resolution was sequel to a motion by Toby Okechukwu, Ali Madaki, Kingsley Chinda, Zakari Mohammed and six others. Okechukwu, who represents Aninri/Agwu/Oji-Uzo federal constituency of Enugu State, said “these actions are unacceptable in a democratic society.”

Similarly concerned about the development is Justice Walter Onnoghen, the new chief justice of Nigeria. At his confirmation hearing at the Senate on Wednesday, March 1, Onnoghen condemned disregard for court rulings, saying it is an act of impunity that is threatening the independence of the judiciary.

Fielding questions from the lawmakers, Onnoghen said the challenge of disobedience to court orders “is for the legislature and the executive to handle.” He said the judiciary would welcome that day that court judgements would be respected and carried out after exhaustion of the right of appeal. That would mean the independence of the judiciary, he added. “If rulings are not respected, they would just be mere piece of paper… Anyway, disobedience of court order is an act of impunity,” he said. “But excuse me from further comments.”

Itsey Sagay, professor of law, made an excuse for the government: “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,” he said.

A security expert, who does not want his name in print, said there must be some evidence against the accused that could foment some troubles or that they could jump bail.

President Buhari gave somewhat an insight to why his government has refused to release Kanu and Dasuki, despite several court directives, during his only media chat to the country on Wednesday, December 30, 2015. According Buhari, the two accused persons could not be allowed to enjoy any form of freedom due to the enormity of their offenses. He said: “If you see the atrocities these people committed against this country, we can’t allow them to jump bail.”

Buhari said Dasuki was simply sharing government’s money the way he liked. “They would just say to Central Bank give so and so, N40 billion just like that; N40 billion,” he said.

He also said it would be bad to allow the former NSA “travel to London to see his doctor” arguing, “What of the over two million people displaced, most of them orphans whose fathers have been killed, what type of government do you want to run? We cannot allow that”.

Buhari also said despite having two international passports, one for Britain and the other for Nigeria, Kanu “did not use any of them to come into the country.” He also said the IPOB leader smuggled in equipment with which he came in to preach hate messages.

From all indications, it appears that the president still views the accused to be too dangerous to be let loose.

But that notwithstanding, Wole Soyinka, a professor of literature and Nobel laureate, while disagreeing with the government tactics said: “If a court grants an individual bail, I don’t care what crime the individual is accused of… There are many avenues for security agencies to pursue their quest without flouting the orders of the court. It is wrong, and we dare not continue to keep silent when one of us – a citizen of this nation, whether militarised or civilianised – is granted bail by the court and some excuse is given for flouting the order of the court. That is the only arbitration avenue that belongs to all of us. We must put an end to this contempt of the orders of the court by any government.”

Supporting, Thisday newspaper in its editorial of February 8, lamented that the way and manner the federal government had been disobeying was being emulated by other states and government agencies. The paper noted: “What is more worrisome is that, apparently taking a cue from the federal government, several state governments have also now adopted the habit of ignoring court orders such that today, there are over 100 of such judicial decisions that are being disregarded by the various elected governments in the country. In many of the cases, the Attorneys-General (including SANs) have filed appeals and motions for stay of execution just to circumvent the law.

“To the extent that Section 287 of the constitution which the president, governors, ministers and legislators swore to uphold has imposed a binding duty on all authorities and persons to obey the judgments of our courts, the flagrant disobedience to court orders constitutes the greatest threat to the rule of law.” Thisday, therefore, argued that “nothing can justify the current situation where the federal government would wilfully disregard court orders, and thus set bad examples for the states to follow. It has dire implications for the sustenance of our democracy.”

Is anybody there to bell the cat and straighten the crooked way the Buhari administration is treading to enthrone its kind of justice? Perhaps, time will tell. In the meantime, it appears the judiciary is not likely to be independent until the executive sets it free.