The decision by the Federal Government to comply with court orders by releasing ex-National Security Adviser (NSA), Mohammed Sambo Dasuki and online publisher, Omoyele Sowore has attracted commendation. But many have cautioned that it is not yet jubilation time, but a moment to step up the fight for a society, where the rule of law and citizens’ rights are supreme. Eric Ikhilae, reports on prospects for change in the new year.
In its “Freedom in the World 2019” report, the global rights monitoring group – Freedom House – said Nigeria improved in its observance of human rights and compliance with the rule of law principle of democratic governance. Freedom House, in the report which assesses the country’s performance in the previous year, labelled Nigeria as “partly free,” scored it 50 over 100. And, after a sector-by-sector scrutiny, observed that the country recorded some progress in 2018, with the potential of doing more this year.
This was before the December 24, 2019 announcement, by the Minister of Justice and Attorney general of the Federation (AGF), Abubakar Malami, of the Federal Government’s decision to comply with the many court decisions, granting bail to former National Security Adviser (NSA), Mohammed Sambo Dasuki and online publisher, Omoyele Sowore.
The decision has been greeted with mixed feelings. Some with optimism, seeing it as a sign of good things to come, while many are simply indifference, seeing it as a mere flash in the pan, and arguing that a lot still needs to be done.
There is indeed more to be done in view of the many existing factors capable of either constraining the nation’s progress or aid its retrogression in its future rating. These factors exist in some key thematic areas and more.
Reluctance in obeying court orders
The President Muhammadu Buhari-led government was gradually assuming the toga of an administration with scant regard for the key democratic practices of observance of rule of law and respect for citizens’ rights until it made the announcement on December 24, 2019.
The release of Dasuki and Sowore has seen many calling on the Federal Government to, not only sustain the momentum, but improve on it by releasing others still being held in custody. Prominent among those, whose release is being demanded is the leader of Islamic Movement of Nigeria (IMN) Sheikh Ibrahim El-Zakzaky.
Beside members of the IMN, notable names like Mike Ozekhome (SAN), Femi Falana (SAN) and others commended the Federal Government and urged it t extend the gesture to El-Zakzaky, who has been in custody, with his wife, since 2015.
Ozekhome said: “I am happy the government has finally realised its faux pas and is seeing the same light which I saw since 2015, when I kicked against the illegal incarceration of Dasuki. It is never too late to take corrective measures and make amends. There is nothing like something good happening at a bad time, or something bad happening at a good time.
“This government is beginning to see the importance of the rule of law prevailing over rule of the thumb and over so- called national security, which is a euphemism for security of a government in power.
“The government should add El-Zakzaky to the list of detainees to be released, because the whole world, aside government apologists and grovelers, see all of them as political prisoners.
“Respect for rule of law and citizens’ fundamental rights constitute some of the key building blocks of democracy. Obedience to court orders, however distasteful, constitutes the irreducible minimum of a civilized nation.”
On his part, Falana, who acted as El-Zakzaky’s lawyer urged government to release other political detainees and criminal suspects in line with valid and subsisting orders of courts.
Falana said: “In particular, we request the Federal Government to liaise with the Kaduna State Government to withdraw the charge filed against Sheikh Ibraheem El-zakzaky and his wife, Mrs Zeenat Elzakzaky who have been detained since December 14, 2015.
“The Federal High Court had on December 2, 2016 declared the detention of the couple illegal and unconstitutional and ordered the federal government to release them from custody forthwith.
“Apart from awarding them reparation of N50 million the Federal High Court also ordered the Federal Government to provide them with a temporary accommodation since the Nigerian Army had destroyed their family house in Zaria.
“However, in a bid to stop the protests of the Shiites who were demanding for the release of their leaders on the basis of the orders of the federal high court the federal government asked the Kaduna state government to arraign the couple in the Kaduna state high court.
“Even though they have been charged with procuring certain persons to kill a soldier the Kaduna state high court has since discharged and acquitted the persons allegedly procured by the El-Zakzakys to kill the said soldier.”
However, the Minister of Justice and Attorney General of the Federation (AGF), Abubakar Malami has distinguished the cases. He argued that while the cases involving Dasuki and Sowore are within the control of the Federal Government, whose agencies are prosecuting them, that of El-Zakzaky and his wife are outside its control.
Malami faulted claim Falana that the Federal Government has control over how the trial of El-Zakzaky and his wife was being conducted and could influence their release. He noted that they were being tried by the Kaduna State Government under its laws.
The AGF said, in a statement issued by his spokesman, Umar Gwandu, said: “In determining the authority responsible for compliance with a court order with particular reference to bail, one must be guided by the law under which the accused person is charged and granted bail.
“On one hand, where the accused is charged under a state law, the order of the court granting bail for an accused person bail is targeted at the state authorities for compliance. On the other hand, where charges are framed under federal offences, the order granting bail is targeted at the federal authorities for compliance.”
Despite the AGF’s attempt to distinguish the cases, there is actually a similarity in the three cases. The similarity exists in the manner the Federal Government and its agencies have handled the cases so far, particularly in relation to compliance with court orders. This development, perhaps accounts for why many do not seem to see the dissimilarity that on the AGF alone seem to be seeing.
El-Zakzaky: When FG ignored court orders
The El-Zakzaky couple was arrested December 14, 2015 shortly after a deadly clash between members of the IMN and a convoy of the Chief of Army Staff and was subsequently detained.
On realizing that the Federal Government would neither charge them with any offence nor release them, but instead preferring to keep them in custody, El-Zakzaky and his wife filed two fundamental rights enforcement suits, marked: Zakzaky marked: FHC/ABJ/CS/281/2016 and FHC/ABJ/CS/282/2016 before the Federal High Court, Abuja.
Despite opposition by the Federal Government and denial of any wrong doing, Justice Gabriel Kolawole, in a judgment on December 2, 2016, upheld the argument made for the couple by Falana, and declared their detention unlawful.
Justice Kolawole, who faulted the claim by the Department of State Services (DSS) and the AGF (who were listed as 1st and 3rd respondents) that the couple were kept in protective custody, said no law in the country provide them (the state agents) with such powers.
The judge said after reviewing the arguments of parties and the documents filed, he was unable to find any law that justifies the detention of El-Zakzaky and his wife since December last year.
In the judgment, Justice described the invasion of the couple’s residence by soldiers, the physical attack on the man and the couple’s detention as unlawful, and awarded N25m damages to each of them. He likened the reported invasion and eventual destruction of El-Zakzaky’s residence in Kaduna to the 1977 invasion the Lagos home of the late Afrobeat musician, Fela Anikulapo Kuti.
Justice Kolawole said the description of the invasion of the applicants’ home by armed soldiers between December 12 to 14, 2015 (as contained in their supporting affidavit) could best be categorised as “rather gory and blood chilling in a democratic state and arguably, in peace time.
“It, for me, as a student of judicial history, bear a sad reminder and telling reminiscences of the unfortunate incidents that involved the illustrious family of the Nigerian popular musician, the late Mr. Femi Anikulapo Kuti in February 1977 under the military government and which eventually, led to the Supreme Court’s judgment in Chief Dr. Mrs. Olufunmilayo Ransome Kuti & 3 others v. The AGF & 8 others (1985) 2 NWLR (pt 6) SC 211.
“The 1st and 3rd respondents, in my view, in so far as they have also not preferred any criminal charge, in a court of competent jurisdiction, against the applicants, may have unwittingly, even with the best of intention, acted in gross violation of the provisions of Section 35(3),(4) and (5) of the Constitution in relation to the applicant and his wife, who is an applicant in a sister suit, which was directed to abide the eventual outcome of this suit.
“The applicant and his wife shall be released within 45 days from today from the 1st respondent’s custody, and shall be handed to the 2nd respondent (IGP), who shall, in turn, take the applicant and his wife to the accommodation, which the 3rd respondent (AGF) is directed to provide pending when the applicant is able to sort himself out with the case, I am told, he has filed in the High Court of Kaduna State against the Nigerian Army, whose soldiers allegedly destroyed his residence in the manner similar to what happened, some 39 years ago, to the family of the late Mr. Fela Anikulapo Kuti in Lagos State,” he said.
The judge warned that he will treat it as a deliberate disobedience of the order of court should the DSS and the AGF failed to release the applicant and his wife from custody at the expiration of the 45 days given.
He equally warned the IGP and his officials against mis-interpreting or abusing the order that they should provide 24 security for the couple and its family.
Justice Kolawole explained that his reason for not ordering the immediate release of the couple, as requested in their applications, was because of the information that their residence had been completely destroyed and they may have nowhere to live.
He explained that the order for 24 hours police protection of the couple was informed by the claim by the DSS and AGF that they had information about the possible attack of the applicant and his wife by aggrieved neighbours.
The judge added: “The IGP or any of its subordinate officers, not below the rank of Assistant Inspector General (AIG), when he received the applicant and his wife, as ordered herein, shall take immediate step, within 24 hours of receiving them for the 1st and 3rd respondents, convey the applicant and his wife, under necessary security escort to their place of abode as would have been provided by the 1st respondent working in conjunction with the 3rd respondent.
“The 2nd respondent shall then provide the applicant and his wife , adequate police protection which shall operate 24/7 until the alleged threats which were not proved by any admissible evidence, but left in the realm of speculation, are removed or significantly diminished.
“Let it be clearly stated and for the avoidance of doubt, that the protection, which the 2nd respondent shall accord to the applicant and his wife, shall not be used under any guise by the 2nd respondent to place or confine the applicant and his wife under any form of restriction, which would invariably translate to the 2nd respondent substituting its own ‘safe custody’ with the 1st respondent’s ‘protective custody.’
“The essence of the order, which I have made is to enable the applicant and his wife to be able to live their normal lives whilst being under constant protective watch by the 2nd respondent’s officers in their new place of abode,” Justice Kolawole said.
Rather than comply with the orders contained in the December 2, 2016 judgment, the Federal Government took no steps. It kept the couple in detention and went about arrested members of IMN who later became violent in their persistent protest of their leader’s detention without trial.
On April 18, 2018 the Kaduna State Government filed an eight-count charge of unlawful gathering, criminal conspiracy and culpable homicide against El-Zakzaky and three others.
Some of the alleged offences are punishable under sections 59 and 190 of the Kaduna State Penal Code Law, 2017. The allegation of homicide is punishable by death, under Section 190 of the same law
El-Zakzaky and wife were later arraigned before a Kaduna State High Court and have been remanded since then. The court rejected their request for bail, but instead granted them, on August 5, 2019, permission to travel abroad for medical treatment. Although the couple left Nigeria on August 12, 2019 for Medanta Hospital in New Delhi, India, they returned home sooner than expected on August 16, 2019 on the grounds that they were not comfortable with the arrangement.
The couple, who have all this while been held in the custody of the DSS, upon their return from India, applied to be moved to prison, an application that the court granted on December 5, 2019 and adjourned until February 6, 2020 for the commencement of trial.
Other cases of rights violation by state agents/agencies – soldiers, policemen, etc
Beside the known cases of Dasuki, Sowore and El-Zakzaky, there are many more Nigerians who have had their rights violated under the current administration. Such cases may not be instigated by the state, they are committed by agents of the state, who still operate freely owing to the failure of the government to act appropriately.
Amnesty International in late 2016 made public a report on Nigeria alleging that 240 people, including infants, died in military detention camps in the North East while 177 pro-Biafran agitators were allegedly extra-judicially killed in the same year.
Bothered by this report and other allegations of abuses against the military, the Federal Government, in August 2017 constituted a panel headed by Justice Biobele A. Georgewill of the Court of Appeal to investigate compliance by officials of the Armed Forces with human rights obligations and rules of engagement, especially in local conflict and insurgency situations.
As part of its terms of reference, the panel was “to review extant rules of engagement applicable in the Armed Forces of Nigeria and extent of compliance thereto.”
It was equally “empowered to investigate alleged acts of violation of international humanitarian and human rights law under the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Geneva Conventions Act, African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and other relevant laws by Nigerian security agencies.”
The panel went about its job, held public sittings in Abuja, Maiduguri, Port Harcourt, Enugu, Kaduna and Lagos where it heard from victims and witnesses, who described a range of alleged violations by security forces, including extra-judicial executions, torture, rape, enforced disappearances and the burning down of villages.
The panel submitted its report in February 2018 and since then nothing has been heard about u=its findings and what the Federal Government has done with them.
In the height of the intense clamour by Nigerians for the disbandment of the Special Anti-Robbery Squad (SARS) of the Nigeria Police following frequent reports of rights abuses associated with its operations, the Federal Government directed the National Human Rights Commission (NHRC) to investigate the agency and suggest needed reforms.
In compliance with the presidential directive, the NHRC in September 2018 inaugurated a seven-man Special Investigative Panel to look into the activities of the SARS and make recommendations for its reform.
The panel sat for months and at the completion of its assignment, submitted its report to President Muhammadu Buhari on June 3, 2019. But till date, nothing has also been heard from the Federal Government about the findings and recommendations of the panel on SARS.
Indeed, the panel on SARS like other panels constituted by this government before it, made some mind boggling findings and suggested needed reforms that would have transformed the relevant institutions, but for the consistent inaction on the part of the government, who seems to enjoy setting up panels and committees, where public funds are expended, but with less interest on the outcome of the exercises.
The panel on SARS for instance, found cases of extortion, use of torture as mean of investigation, outright conversion of exhibits and other confiscated items by police officers.
On the issues of arbitrary arrests and detentions, the panel found that “there were cases of arbitrary arrests and detentions of persons by some police officers on the pretext that they were suspecting them. Some of the persons arrested and detained were later labeled by the police as armed robbers or responsible for crimes they did not commit.
“In the process of such arrests, police officers would resort to methods that are outside the legal guidelines, police methods and procedures and subjecting suspects to inhuman and degrading treatment in the form of beatings, hitting with gun butts, insults, threats, gunshots and intimidation.
“It was apparent that some of the operatives of SARS, mostly the upcoming young police officers, lack in-depth knowledge of Police procedures and processes which could partly explain their arbitrariness in arresting and detaining suspects or deliberate disregard to the law, rules of procedure and police regulations.”
On the complaints of abuse of the bail process and other forms of extortion, the panel said it “established cases of extortion by police officers of the SARS using various methods. This included asking suspects or their relations to pay money for the release of the suspect that were arbitrarily arrested; asking suspects whether they had money on them to give the police; and, making suspects to withdraw from ATMs to give officers.
“Bail had become a source of making money by the side as no records of bail funds collected appear to be recorded for accountability. Hence the resort to arbitrary arrests and detention when officers of SARS are broke as a way to raise quick funds for their weekends, house rents or children School fees or personal development projects or to acquire and confiscate the property of others.”
The panel equally found that “properties, especially vehicles, were confiscated from the complainants and taken to the offices of the SARS pending investigations. The seized vehicles were not properly documented and were subsequently, without following due process, auctioned to police officers.
“As a result of the auction the owners of the vehicles were made to suffer deprivation of the use of their vehicles and property contrary to Section 44 of the Constitution.
“The confiscation of property by police officers raises questions on the character of some of the police officers operating under the auspices of SARS with further damaging effect on the reputation of the police as an institution charged with the responsibility of protecting life and property. However, in this case, it was the police that became the perpetrators of confiscation of property from citizens.”
A lawyer, Dr. Abubakar Dutse expressed disappointment that the Federal Government was reluctant to act on the findings and recommendations of the various panels and committees it has set up before now on the issue of right abuses and the need to deepen democratic culture by adhering to the rule of law.
Dutse added: “It is sad that this government is chasing shadows when there a lot to be done. What happened to the reports and recommendations of the panel that you spoke about? Why would a government constitute a panel, fund its activities with public funds only to turn around and discard the report of the same panel?
“That is a waste of public funds and a form of corruption. Why waste the nation’s scarce resources on the panel whose reports and recommendations you know you will not act on?” He said.
Need for conducive atmosphere for citizens to exercise their rights to vote
Some have also argued that a government did not necessarily need to arrest and detain citizens before their rights are said to have been infringed on. They not the persistent violence being witnessed during election, which has consistently made it impossible for many electorate to participate in the electoral process for fair of being harmed or killed.
After the last governorship elections in Bayelsa and Kogi states, it was the view of many that the level of violence and desperation witnessed has depicted this government as one amenable to the deprivation of citizen’s right to freely perform their constitutionally guaranteed right to choose their leaders and determine who should run their affairs.
At a recent function in Abuja, Falana warned that if the Federal Government and other stakeholders in the nation’s electoral process fail to take action against electoral impunity and brigandage, “as recently witnesses in Kogi and Bayelsa,” the people’s voting right would have been successful stolen by the politicians.
He added: “With what happened in Kogi and Bayelsa states, you do not expect people to want to participate in a war. Because, in Nigeria, election has become war for the ruling class, because if you win, you win in all manifestations.
“You win the battle for the control of the treasury, you win the battle for impunity, and you win the battle to destroy the values that we hold dear in this country. If we are therefore going to address this problem, we have to decide as a people the type of country we want.
“What had just happened in Bayelsa and Kogi states is what I call gun boat democracy. It was a war. Anybody who participates in a war know that he/she is going to lose his/her life. That is why the number of voters will continue to reduce, if we fail to address impunity on the part of the ruling class.”
Needs for laws to discourage rights abuses and impunity
There is also the argument that this administration has not done well by its inability to engaged in robust review of the nation’s laws and enact new ones that encourage the protection of citizens; rights and respect for rule of law.
Rights activists, Chidi Odinkalu and Sunday Essienekak queried the proprietress of the National Assembly’s decision to direct efforts at restraining the people’s right to freedom of speech in the form of the Hate Speech Bill and Protection from Internet Falsehoods and Manipulation and Other Related Matters Bill when they could devote their legislative time to meaningful uses.
On the Bill that seeks to monitor citizens’ uses of the internet and social media, Odinkalu argued that “contrary to its title, the bill is far from solely or even substantially about Internet falsehoods and manipulation.
“Like Decree No. 4, this bill creates nebulous crimes in open-ended, subjective language, such as statements ‘likely to be prejudicial to the security of Nigeria or any part thereof.’
“The crime of making a statement ‘prejudicial to public health, public safety, public tranquility or public finance’ can be used, for instance, to jail any citizen for criticising a thieving politician.
“The bill also proposes to criminalise statements that are likely to ‘influence the outcome of an election to any office’.
This provision effectively would prohibit digital campaigns by opposition parties, because all campaign statements made digitally are designed to influence election outcomes. It’s a charter for a single-party state and an end to political pluralism,” Odinkalu said.
Essienekak wants the enactment of laws that will promote human rights and rule of law rather than those with the capability to stifle them, He cited the provision of Section 84 of Sheriff and Civil Processes Act (SCPA). which he argued, encourages impunity among public officers and public institutions.
He argued that it was unfair on Nigerian for Section 84 of SCPA which forms part of the nation’s colonial relics to still exist in Nigeria even when the British has since scrapped the law.
“With Section 84 the battle for human rights in this country is no more encouraging. The reason why the police and other security agencies continue to abuse human rights is because of the existence of this Section 84.
“Take away Section 84 of the SCPA you would effectively curb arbitrariness and impunity among personnel of these security agencies. If you publish in a newspaper today that anybody with judgments or cases of rights abuses against the police and other security agencies to come forward, I believe you will get over two million,
“This is because if they initiate garnishee proceedings to enforce this kind of monetary judgment, the Central Bank of Nigeria becomes a defendant and they swiftly raise the flag of Section 84 of the SCPA, which requires that you must first obtain the consent of the Attorney General at the federal level or the state level, depending on which government agency is involved. And you can hardly get any Attorney General to grant you consent.
“So, quote me very well. The reason why human rights are not respected in this country is because of the existence of Section 84 of the SCPA. Any day that section is struct out or invalidated, that is when you will see the government officers and security agencies begin to respect human rights.
“Section 84 of the Sheriffs and Civil Process Act is evil. And, it is the only reason why human right is a child play in Nigeria. Sadly, despite the harm that this law is doing, the Legislature, the Judiciary and even the Nigeria Human Rights Commission folds their hands to watch the deteriorating situation of human rights in Nigeria.
‘We only pay lip service to human rights in the country. The battle to have Section 84 expunged from our law book ought to be championed by the NHRC. The commission is supposed to propose a legislation for the repeal of that section of the law. The Nigerian Bar Association and other stakeholders ought to be interested in this,” Essienekak said.