1.
OPEN
LETTER TO MR. ABUBAKAR MALAMI: OUR DEAR ATTORNEY-GENERAL, IMPUNITY IS
INCREASINGLY DEFINING YOUR TENURE.
2. Dear
Sir,
3.
I bring you warmest greetings from the
constituents and Apostles of Rule of Law and Constitutionalism in Nigeria.
4.
Sir, there is no other time in our
recent history when executive lawlessness, characterized by flagrant
disobedience to sacred orders of court , has dominated the platform of public
discuss and boggled the minds of Democrats more than the present time in which
the government to which you act as its Chief Law Officer holds sway. This
position will shortly be vindicated and fortified by statistical evidence which
shall be marshaled out in the course of this letter.
5.
The soul of this letter is donated by
the large-scale impunity, confounding executive recklessness, flagrant abuse of
power, inexplicable disobedience to sacred orders of our courts by persons and
authorities currently exercising the plenitude and amplitude of powers of the
Federal Government of Nigeria under the subsisting Amended 1999 Constitution of
the Federal Republic of Nigeria which is supposedly binding on all authorities
and persons throughout the Federal Republic of Nigeria. It is the unfortunate
reality that this most sacred document [the Constitution], which ordinarily
ought to be enjoying pervading bindingness on all government functionaries, is
suffering untold humiliation and unprecedented desecration in the hands of
different government agencies, authorities and functionaries of the government
you are meant to advise that necessitated this urgent public letter to your
person.
6.
REASONS
FOR THE LETTER:
7.
My reasons for writing you are understandably
manifold but for economy of space, I would scale it down to three. Like a Lady’s
skirt, this urgent letter of grave concern promises to be short enough to be
attractive but equally long enough to cover all the essential parts of the
issues under scrutiny.
8.
First and foremost, [by the infinite
mercies and grace of God Almighty] I am a proud member of this most honourable
profession on this planet earth, the legal profession, just as your good yourself.
And it is hardly disputable that the future of democracy in every civilised society
lies on the shoulders of lawyers.
9.
Secondly, the office of the Attorney-General
of the Federation is recognised as a great historic office that places its
occupier in the rare position of the “Keeper of the King’s conscience”, the
Chief Law Officer/Legal Adviser to not only to the President of the Nation alone
but equally the entire Federal Government with all the Ministries, Departments
and Agencies thereunder. Added to these super responsibilities, by the ancient and
ever-unbroken tradition of our profession, you are rightly acclaimed the “Leader
of the Bar.”
10.
The third crucial reason for this urgent
letter is the lessons of precedents. The pre-eminent and incontestable position
of the Attorney-General, under the common law, as the chief law officer of the
State, either generally as a legal adviser or specially in all court
proceedings to which the State is a party, has long been recognised by
the courts[State v. Ilori (1983) 2 S.C. 155]. The enormous powers bestowed on
you by our Constitution have been acknowledged as a great ministerial prerogative
coupled with grave responsibilities. It follows therefore that however you
decide to exercise these awesome powers donated to your office today will
definitely form a precedent for the future. Whether your manner of discharging
the duties of your office today might be adjudged a bad or good precedent
belongs to posterity and should therefore be of great concern to you.
11.
STATISTICS
OF DISOBEDIENCE TO COURT ORDERS
12.
Sir, not long after you were sworn in as
the Attorney-General of the Federation, the Federal High Court of Nigeria
[Abuja Division, presided over the Honourable Justice A.F.A. Ademola], delivered
a Ruling ordering the Department of State Security to release Mr. Nnamdi Kanu [the
Leader of the separatist Indigenous People of Biafra] on bail [unconditionally]
on the 17th December, 2015. That Court Order was disobeyed by the
Department of State Security [otherwise known as the DSS] who by our
Constitutional structuring are under the ultimate command of the President as
per his pre-eminent position as the Commander-in-Chief of the Armed Forces of
the Federal Republic of Nigeria.
13.
Secondly, it is no longer news that the
High Court of Federal Capital Territory [per, the Honourable Justice Huseni
Baba-Yusuf] granted bail to the former national security adviser, Colonel Sambo
Dasuki (Rtd). The same Court equally granted after him bail [per, the
Honourable Justice Afen] in another charge brought against him by the Federal
Government. Sometime in January, 2017, the same F.C.T. High Court, presided
over by the Honourable Justice Huseni Baba-Yusuf was moved by Mr. Ahmed Raji,
SAN to re-affirm the bail earlier granted Mr. Dasuki. Again in April, 2017, the
Federal High Court [sitting in Abuja, per the Honourable Justice Ahmed
Mohammed] was similarly moved by Mr. Ahmed Raji [Dasuki’s Counsel] to re-affirm
the bail earlier granted Mr. Dasuki by the said Court since 2015. On the 4th
October, 2016, the Court of the Economic Community of West African States,
ECOWAS, declared the arrest and detention of former National Security Adviser,
Sambo Dasuki, as unlawful and arbitrary. The court also held that the further
arrest of Mr. Dasuki by government on November 4, after he was granted bail by
a court of law, amounts to a mockery of democracy and the rule of law. Up to
the present moment, Mr. Dasuki still remains in the custody of the DSS. On the
16th May, 2017, the State Security Service [otherwise known as DSS] took
their impunity and bewildering insolence for the Courts to a higher level when
it refused to produce Mr. Dasuki for his trial before the FCT High Court. All
that Mr. Rotimi Jacobs, SAN [the Prosecution counsel] could tell Justice Baba
Yusuf was that he was surprised that the former NSA was not within the court
premises for the continuation of his trial but however could not go any
further. Off course, this did not go down well with the Defence team led by
Joseph Daudu, SAN who quickly informed the court that the Prosecutor’s response
was unhelpful.
14.
SHEIKH
IBRAHIM EL-ZAKZAKY RELEASE ORDER:
15.
On 13th December, 2015,
Sheikh Ibrahim El-Zakzaky was arrested by Nigerian State Actors and was kept in
the custody of the DSS until the 2nd day of December, 2016 when the
Federal High Court [Abuja Division, presided over by the Honourable Justice
Gabriel Kolawole] ordered the Federal Government to provide an accommodation
for El-Zakzaky, his wife and family members within Kaduna State or any part of
the northern region. The
court declared the continuous detention of El-Zakzaky since December 13, 2015
as unlawful and illegal since the issue of protective custody was unknown to
law or the National Security Agencies Act establishing the DSS. The court further
awarded the cost of 25 Million Naira as general damages to be paid to Ibrahim
El-Zakzaky who must be released unconditionally to the Inspector General of
Police (IGP) within 45 days. The
Inspector-General of Police was equally ordered to convey El-Zakzaky and his
wife to the accommodation provided by the government. The court also awarded
25m damages to Mrs Zakzaky, making a cumulative of 50 Million Naira as general
damages. Since the 2nd day of December, 2016 up to the present
moment, the DSS has not obeyed that Court Order. On the contrary, the DSS have
continued to detain Ibrahim El-Zakzaky. The said order of the Court has equally
not been stayed, vacated nor successfully challenged and upturned on appeal.
16.
LAWYERS
IN DEFENCE OF DEMOCRACY PROTEST AGAINST IMPUNITY:
17.
On the 31st October, 2016, a mammoth
crowd of lawyers under the aegis of Lawyers in Defence of Democracy staged a
protest that shook the heart of the Federal Capital Territory, Abuja. According
to media sources, the Convener of the Group, Ikenga Ugochinyere, Esq., stated
the purpose of protest thus;
a. “We Lawyers in
Defence of Democracy and Citizens for Good Governance reject the call for the
judges, whose homes were invaded by the DSS, to step aside as heeding the call
will be a victory for tyranny and gradual return to Kokoma democracy. We
dissociate ourselves from such call. That the DSS and other agencies
release from detention all Nigerians who have been granted bail by the courts
and who have fulfilled their bail conditions including compliance with all
judgments and orders. Their continuous hold of such persons is an affront on
the authority of the judiciary, dictatorial and a desecration of the
fundamental democratic principle of separation of powers. The Executive cannot
be prosecutor and judge at the same time... A country where a man can secure
bail four times for the same charges and you still detain him is lawless. A
country where a judge will grant bail on bailable offences and the person
involved is then arrested on phantom corruption charges because he ruled
against the whims and caprices of persons in government is a lawless country.”
18.
It is noted in passing that the
protesters among other key institutions, equally marched to your office on the
day of the said protest. Also of interest is the fact that the Convener of the
Group has been in detention ever since up to the present moment without a
criminal charge formally filed against him before any Court of the land.
19.
THE
NATIONAL ASSEMBLY WEIGHS IN:
20.
On Thursday, the 26th day of
January, 2017, the Federal House of Representatives, resolved to urge the
Executive arm to direct security agencies to obey court orders, especially
those relating to bail and production of accused persons in Court for trials;
and mandate the Committee on Human Rights and Justice to investigate cases of
detention of accused persons beyond the statutory period in contravention of
subsisting Court Orders granting them bail, failure to release or produce
accused persons in Court for trial and prevail on the offending agencies to
ensure their releases and report to the House within four (4) weeks for further
legislative action. Interestingly, on the same legislative day, the Federal
House of Representatives considered and adopted a motion titled “Need to check
persistent Fundamental Human Rights Breached and Acts of Impunity by Security
Agencies”. After a robust and wide-ranging debate on the Motion, the House
noted that the Chapter Four of the Constitution of the Federal Republic of
Nigeria,1999 and the African Charter on Human and Peoples Rights, guarantee,
among others, rights to peaceful assembly, personal liberty and freedom of
movement but concerned about the rising cases of violation of those rights;
also noted the air of impunity with which the personnel of the security
agencies treat citizens and the worrisome tendencies to disobey court orders;
concerned about the recent arrest and detention, on 22nd December,
2016, of some members of Civil Society Organisations, such as Lawyers in
Defence of Democracy, National Youth Council of Nigeria and Citizens for Good
Governance by the State Security Service for allegedly planning a peaceful
protest and they have remained in detention for over 29 days since their
arrests without being charged to Court or released. The House resolved, among
others, to mandate the Committee on Human Rights, Police Affairs, National
Security and Intelligence and Justice to investigate this incident and all
other cases of unlawful arrests and detention of citizens and disobedience of
Court Orders since June, 2015 and report to the House within four (4) weeks for
further legislative action.
21.
THE
CHIEF JUSTICE OF NIGERIA WEIGHS IN:
22.
When he appeared before the Nigerian
Senate for his confirmation, the current Chief Justice of Nigeria, on the 1st
of March, 2017 roundly condemned the rampant cases of disobedience to Court
Orders. Fielding questions from the lawmakers, the CJN 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 judgments
would be respected and carried out after exhaustion of the right of appeal. That
will mean the independence of the judiciary, he added. If rulings are not
respected, the judge continued, they would just be “mere piece of paper.” “Anyway,
disobedience of court order is an act of impunity,” he said.
23.
WARNINGS
OF OUR COURTS:
24.
The Nigerian Court of Appeal in the
memorable case of Balonwu v. Obi (2007) 5 NWLR (Pt. 1028) 488 at 538 Paras.C- E, 564-565
Paras.B – G, has this to say on disobedience to sacred Orders of Court;
25.
“An
order of court whether valid or not must be obeyed until it is set aside. An
order of court must be obeyed as long as it is subsisting by all no matter how
lowly or highly placed in society. An act of disobedience towards an order of a
court can render any further act by those who have acted disobediently to
sanctions from other court because no court would want its orders flouted. This
is what the rule of law is all about hence the courts have always stressed the
need for obedience of court orders…Obeying court orders is both legal and moral
obligation but you find that court orders are toyed with both by lawyers and
the litigating public. Indeed for the politicians, the rule of law is
non-existing until it suits their purpose, and it is only then it is observed
to the letter. Without a strict adherence to the rule of law, our nascent
democracy and indeed our Constitution will only be worth the paper on which it
is written. What makes a great country is adherence to the rule of law. Even in
hell, there is order and discipline.”
26.
Indeed, all the existing Supreme Court
authorities lean heavily in support of the long-established postulation
that disobedience of Court Order (otherwise called contempt
of Court) is an abomination of the rankest specie just as it is an anathema
in every democracy worth the name as it holds the key to the floodgates of
anarchy and societal destruction. Condemning this cancerous vice, the Supreme
Court, in the case of Hart v. Hart (1991) 21 N.S.C.C. (Pt. 1) 184 at
199, had these unkind words for those who disobey Court orders (contemnors);
27.
“I would like to state that obedience to
Orders of Courts is fundamental to the good order, peace and stability of the
Nigerian nation. The ugly alternative is a painful recrudescence of triumph of
brute force or anarchy, a resort to our old system of settlement by means of
bow and arrows, machetes and guns or, now, even more sophisticated weapons of
war. Disobedience to an order of Court should, therefore, be seen as an offence
directed not against the personality of the Judge who made the Order, but as a
calculated act of subversion of peace, law, and order in Nigeria society.
Obedience to every Order of Court is therefore a duty which every citizen who
believes in peace and stability of the Nigerian State owes to the nation. To allow
Court orders to be disobeyed would be to tread the road toward anarchy. If
orders of the Court can be treated with disrespect, the whole administration of
justice is brought into scorn…If the remedies that the Court grants to correct
wrongs can be ignored, then, there will be nothing left for each person but to
take the law into his own hands. Loss of respect for the Court will quickly
result in the destruction of our society”
28.
To cap it all,
the Constitution by its Section 287 (3) lucidly provides in the very words
which I would now most respectfully reproduce;
29.
“The decisions of the Federal High Court, the
National Industrial Court, a High Court and of all other Courts established by
this Constitution shall be enforced in any part of the Federation by all
authorities and persons, and by other Courts of law with
subordinate jurisdiction to that of the Federal High Court, the National
Industrial Court, a High Court and those other Courts, respectively”
30.
SUMMATION:
31.
What patently emerges from the concatenation
of the instances of executive impunity and lawlessness most dispassionately surveyed
above comes to the ineluctable conclusion that the present Federal Government of
Nigeria, which you are saddled with the onerous duty to offer sound legal
advice, has most unfortunately fallen into the cesspit of tyranny, lawlessness and impunity.
Most of its security agencies (especially) have pathetically constituted
themselves into the sinkhole of constitutionalism, Rule of Law and sacred human
rights of great Nigerian Citizens.
32.
THE
CASE AGAINST YOU:
33.
Sir, the case against you in all these
well-carefully itemised instances of disobedience to Court Orders and Human Rights
abuses by different State Actors, is that there is no evidence iota of on
record that you have lifted a finger to intervene by advising the concerned agencies
to uphold the dignity of our Constitution which is the foundation of our society.
No such recorded evidence exists
anywhere and I challenge you to prove me wrong by producing one. What this
comes to is that you are very comfortable to sit in your hallowed chambers and
watch our Constitution thrown to the dogs and the dignity of our Courts
basterdised. It equally means that you are very comfortable with the kind of
decadent precedent that all these acts of outlawry and brigandage would [in
their aggregate] foist on our future democracy. These summations are indeed
unanswerable since finding otherwise would certainly amount to eyewash.
34.
END:
35.
Given the nature and gravity of the
issues under consideration, it becomes imperative to call to mind the salient
observations most ably offered by a former Chief Justice of Nigeria [Atanda Fatai-Williams. CJN]
in State v. Ilori, where he rightly stated;
36.
“For
all these reasons, it cannot be too strongly stressed that this preeminent
position of the Attorney-General with respect to criminal proceedings in our
Constitution carries with it grave and onerous responsibility which should not
be discharged with levity. Because of this, it is of paramount importance that
when an Attorney-General is being appointed, the appointor should,
at all times, bear in mind the integrity, ability, experience, and maturity
required of the person holding this high and important office. He should be a
person who, in the discharge of his duties, will always "have regard to
the public interest, the interest of justice, and to the need to prevent any
abuse of legal process."
37.
Sir, as the tenure of the government you
presently serve gradually winds up its activities, you may find it expedient to
cast aside the seductive veils of political considerations and sentiments and
approach the content of this letter with the spirit of a patriot who should
always stand ready to “defend his country against his government.” As for
whatever backlash that might befall me for my courage to address you on this
important issues of our realm, I take refuge in the protection of God Almighty
who inspired the legendary Thomas Paine to declare that “if there must be
trouble, let it be in my own day so that child may have peace.”. I find here a
convenient place to stop.
38.
Sir, do graciously accept the firm
assurances of my highest regards.
39.
Yours in preservation of democracy,
40.
JOHNMARY CHUKWUKASI JIDEOBI, Esq.
GROWING IMPUNITY: LAWYER BATTLES ATTORNEY-GENERAL OF THE FEDERATION IN A RARE OFFENSIVE
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Tuesday, May 16, 2017
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