THE BROUHAHA OVER THE RE-ARREST OF MAZI NNAMDI KANU: MUCH ADO ABOUT NOTHING by Johnmary Jideobi, Esq

PREAMBLE:

It is no longer news that Mazi Nnamdi Kanu, the Leader of a society known as the Indigenous People of Biafra [henceforth in this reflection called the IPOB] is standing criminal trial before the Abuja Division of the Federal High Court of Nigeria on charges verging most essentially on treason and treasonable felony which carry a maximum sentence of life imprisonment under the Nigerian penal laws. It is equally a known fact that the Honourable Justice B.F.M. Nyako of the Abuja Federal High Court admitted Mazi Nnamdi Kanu to bail on the 25^th day of April, 2017 principally on health grounds with stringent conditions attached. Recently, it was reported by different national dailies that the Federal Government of Nigeria has approached the Federal High Court with a request to revoke the bail granted to Mazi Nnamdi Kanu as the defendant has violated the whole conditions attached to the bail granted him. It is important to point out that the prayer which the Federal Government tabled before the Court was necessitated by the earlier motion filed by Mazi Nnamdi Kanu praying the court for the variation of the stringent conditions attached to his bail. Being that the Federal High Court is on vacation as at the time both entreaties were made by the supplicants, both prayers by the parties in hostility are yet to be heard and determined by the court.

OBJECTIVE OF THIS PIECE:

The supplication with which the Federal Government of Nigerian has besieged the Federal High Court, Abuja as indicated above has elicited a number of divergent contentions which in their aggregate seems to overheat the polity. The humble attempt of this write-up therefore is to examine the merits and demerits of these arguments against the background of the extant laws of the land especially those ones circumscribing the issues of bail pending trial, sentiments in judicial deliberations and contempt of court. In setting out to squire up with the nuances of this enterprise, we adopt as a veritable winnowing tool, decisions of our courts, so as to be properly guided in charting the course of this inquiry.

OHANAEZE NDIGBO BELLOWS:

 The President General of Ohanaeze Ndigbo, Nnia Nwodo, accused the Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN), of bias. In a statement titled, ‘AGF, please respect your oath of office,’ the Ohanaeze leader noted that the bail conditions given by the court violated Kanu’s human rights. Nwodo wondered why the AGF would move to re-arrest Kanu when he (AGF) did not take any step to caution the Arewa youths who initially issued a notice to the Igbo to leave the North. According to him, “I am amazed that Malami is prepared to contest the superiority of the provisions of the constitution on the freedom of movement and association over an erroneous judicial proclamation violating those rights I am equally miffed by the audacity with which the Attorney General displays his bias without regard to his oath of office. A few hours ago under the watchful eyes of the Chairman of the Northern Governors Forum and in total defiance of the Head of State’s proclamation of the rights of a citizen of Nigeria to live anywhere in Nigeria and to do business anywhere in Nigeria, the Arewa youths, pretending to withdraw their quit notice gave qualifications to the Head of State’s proclamation, issuing conditions for enjoyment of citizenship status…These same Arewa youths were supposed to have been arrested on the orders of the Governor of Kaduna State, Nasir el-Rufai, and the Inspector General of Police, Idris Ibrahim, for acts of treason, conversion and sedition. As the Chief Law Officer of the Federation, the Attorney General looks the other way, he does not go to court to seek an order of arrest or prosecution. Kanu is free to hold any point of view no matter how displeasing to anyone so long as he is not inciting or provoking any criminal activities.”

IPOB REACTS:

The IPOB released a statement which partly read: “IPOB wishes to notify the public about the illegal and undemocratic moves by the Federal Government, led by President Muhammadu Buhari, to re-arrest our leader, who committed no crime known to the laws of the Nigerian state. Before Buhari decides to make a move to arrest our leader, he must first go to court to obtain an order or else it will be resisted by millions of IPOB members”.

THE RULING OF THE COURT:

A clinical reading of the Ruling of the Federal High Court delivered on the 25^th April, 2017 in charge no: FHC/ABJ/383/15 [per B. F. M., NYAKO] would reveal clearly that the Court refused to admit the other defendants to bail. According to the Court, “the bail application of the 2^nd to 4^th Defendants is refused.” In refusing their bail applications, the court reasoned thus: “I have also read all the arguments of the Applicants and it appears to me that they are under the mistaken opinion that it is only a count of terrorism that is a serious count. Count 1 of the charge for which the Defendants are standing trial and which count applies to all four Defendants is a count alleging treasonable felony which to my mind is a serious count. I have not seen any new argument to warrant me reviewing my earlier decision.” With this forceful pronouncement, the court dismissed the bail application of Messrs. Chidiebere Onwudiwe, Benjamin Madubugwu and David Nwawuisi [the 2^nd to 4^th Defendants.] Before proceeding to enumerate the conditions to which his bail would be tied, the Court had this to say about Mazi Nnamdi Kanu’s bail application:

“However, as it relates to the 1^st Defendant Nnamdi Kanu, the Applicant has deposed extensively on his health and appeals to the Court on health ground to allow him bail on ay condition. I opine that it is always better to have a live person to try. I have observed over time as the Defendants have appeared in Court that the 1^st Defendant may be having some health issues as he needs to sit down always and sweats profusely. To enable the prosecutor have a live person to prosecute, I am of the opinion that the first Defendant needs better health attention than the Prison Service is able to provide.”

 THE BAIL CONDITIONS:

The Court pronounced the bail conditions of Mazi Nnamdi Kanu in the following words:

“I hereby exercise my discretion and grant the 1^st Defendant bail on health grounds on the following conditions:

Ø He shall depose to an affidavit or undertaking to attend his trial diligently.

Ø He shall provide three sureties as follows:-

a.     All in the sum of 100 million each.

b.     A senior highly placed person of Igbo extraction such as a Senator

c.      A highly respected and recognized religious leader in Nigeria of the Defendant belief (A Jewish Leader).

d.     A person with landed property within Abuja with a verifiable Certificate of Occupancy.

Ø He shall deposit both his Nigerian and British International Passport that he may have.

Ø He shall not attend or be seen in a crowd exceeding 10 people nor attend or hold rallies neither shall he grant interviews.

Ø He shall on a monthly basis provide medical updates of his health status and same shall be filed in Court.

 MATTERS ARISING:

The above conditions to which Nnamdi Kanu’s bail was tied have been variously described as ‘onerous’, ‘inhuman’, ‘stringent’ by different stakeholders in the polity. Those who condemned the bail conditions canvassed the view that the conditions laid down by the Court are in gross violation of Nnamdi Kanu’s right to freedom of association, expression, movement, right to personal liberty and right to hold and propagate opinions as eminently guaranteed by sections 35, 37, and 38 of the amended 1999 Constitution of the Federal Republic of Nigeria. While this argument saturate our cyberspace and dominate political discussions, it is to immediately pointed out that Mazi Nnamdi Kanu [in order to breathe the air of freedom] speedily signed up on all these conditions and regained his freedom. Thereafter, he brought an application to have those conditions varied. To this, we shall come back anon.

 THE RE-ARREST BROUHAHA:

In reacting to the motion filed by Nnamdi Kanu to have his bail condition varied by the Court, the Federal Government of Nigeria vehemently opposed the application and entreated the Court to revoke the said bail and cast the Defendant back into the abyss of Kuje gulag pending the completion of his trial. In the affidavit supporting its application, the Federal Government, among others, deposed as follows:

Ø That the 1st defendant/applicant (Kanu) is standing trial for alleged offences of conspiracy to commit acts of treasonable felony, treasonable felony and other related offences before this Honourable Court.

Ø That the offences for which he is standing trial are not ordinarily bailable;

Ø That the court, notwithstanding, granted bail to the 1st defendant/respondent on health grounds on April 2017;

Ø That among other conditions for the bail of the 1st defendant are as follows:

Ø That he should not be seen in a crowd exceeding 10 people; that he should not grant any press interviews, hold or attend any rallies; And that he should file in court medical updates of his health status every month;

Ø That the bail condition was perfected by the defendant/applicant which he is currently enjoying;

Ø That rather than observing all the conditions, the 1st defendant/respondent in flagrant disobedience to the court order flouted all conditions given by the court;

Ø That the defendant held a rally at his residence in his hometown, Afara-UkwuIbeku in Umuahia, Abia State;

Ø That the said rally with a crowd exceeding 10 persons was captured in a video published on the 1st June 2017, and circulated  throughout the length and breadth of Nigeria and beyond through the Internet platform of YouTube;

Ø That the YouTube video was downloaded and is attached to this affidavit and marked NK1;

Ø That the 1st defendant equally incited his members to disrupt, disallow and boycott elections in the South-East states, starting with the Anambra State gubernatorial election scheduled for November 18, 2017, if the Federal Government failed to hold a referendum for the realisation of the state of Biafra;

Ø That the bail granted the defendant/applicant was to enable him to go and take care of his health and not for any other purpose;

Ø That instead of the 1st defendant to use the opportunity to attend to his health needs, he has in furtherance of the offence charged, inaugurated a security outfit known as (the) Biafra Security Service;

Ø That his action is a serious threat to (the) security of this country as well as a threat to national unity.

Ø That from the deposition in the affidavit in support of this application, it is clear that the essence of the bail granted the 1st defendant/applicant is defeated;

LEGAL ANALYSIS:

On its surface, constitutional rights of Nnamdi Kanu were/are curtailed by the bail conditions laid down by the court. However, it must be stressed away that Nnamdi Kanu had the choice of rejecting the bail in its entirety until the court reviews the terms in a manner that would be more acceptable to him or successfully appeal against same. He exercised the choice of accepting the terms in toto. His sureties endorsed same too. And the Court took him for his word and consequently signed his discharge warrant that enabled the Kuje Prison Officials to free Nnamdi Kanu. Sentiment apart, application for the variation of bail terms does not in law equate with “a variation of bail terms” by the court. In other words, until the Court is minded to vary the terms imposed [after a plenary hearing of the applicant’s request], the Ruling of the Court dated the 25^th day of April, 2017 is still subsisting. According to Justice M. Venugopal of India, “An order passed, right or wrong, has to be obeyed. If a party is affected by an order, he ought to take prompt/diligent steps in resorting to further appellate or revision proceedings in accordance with law. He cannot ignore the order and plead about the difficulties of implementation at the time of initiation of contempt proceedings”. This unbending policy of the law was proclaimed by the Nigerian Supreme Court in the case of Babatunde & Ors. v. Olatunji & Anor (2000) 2 NWLR (Pt. 646) 557 at 572. The Supreme Court [per Achike, JSC] forcefully restated the principle in the following terms:

"Matters pertaining to judicial orders or judgments, for that matter, are not generally treated with arrogance or levity. Speaking for myself, it is rather officious and treading on a perilous path for one to arrogate to oneself the right to choose and pick between court orders in terms of whether they are valid or null and void. In fact, since there is a strong presumption in favour of the validity of a court's order, it behoves everyone to keep faith with the order of the court. It makes no difference that ex facie it appears that the court that made the order is without jurisdiction because at the end of the day, an order of the court subsists and must be obeyed until set aside by a court of competent jurisdiction. To, therefore, disobey an order of the court on the fancied belief that the said order is null for any reason whatsoever - even if it subsequently turns out that the order in fact is proved to be null-is a risky and unadvisable decision because, until the said order is finally determined to be null and void by the court, the order subsists in the string attaching to it unmitigated. Therefore, sheer commonsense as well as prudence demands that every order of the court should be accorded due respect and no attempt made to flout the order on the flimsy reason that it is null and void."

I cannot improve on the above dictum. At this juncture, it is important to recall that one of the hallmarks of the trial of Mazi Nnamdi Kanu is the deluge of bail applications that have been filed and argued on his behalf by his different team of lawyers over time. The first application was made before the Magistrate Court in Wuse Zone 2, Abuja presided over His Honour, Shuaibu J. The second bail application made on Nnamdi Kanu’s behalf was before the Honourable Justice A.F.A. Ademola of Abuja Division of the Federal High Court. The third bail application made on Nnamdi Kanu’s behalf was before the Honourable Justice James Tsoho of the same Abuja Division of the Federal High Court. Thereafter, Nnamdi Kanu appealed against the Ruling of the Honourable Justice refusing to admit him to bail to the Abuja Division of the Court of Appeal. The said appeal was dismissed by the Court of Appeal as being unmeritorious in view of the nature of the charge brought against him. Thereafter, Nnamdi Kanu applied for his bail before the Honourable Justice B.F.M. Nyako and the said application was dismissed in view of the nature of the charge for which he is standing trial. Then again, after the charges against him were amended to excise terrorism, he brought a fresh bail application [this time around anchored heavily on health ground]. The Court bent backwards and reasoned thus: “To enable the prosecutor have a live person to prosecute, I am of the opinion that the first Defendant needs better health attention than the Prison Service is able to provide”. This deluge of bail of applications alone reveals how badly Mazi Nnamdi Kanu badly thirsted for freedom.

SUMMATION:

All the constitutional rights of Mazi Nnamdi Kanu alleged to have been violated by the Court’s Ruling of 25^th April, 2017 are not absolute and should therefore never be construed in absolute terms. After reproducing section 35 of the Constitution cited to it by the Appellant, the Supreme Court in the case of Dokubo v. F.R.N. (supra) reasoned thus:

“The above provisions of section 35 of the Constitution leave no one in doubt that the section is not absolute. Personal liberty of an individual within the contemplation of section 35(1) of the Constitution is a qualified right in the context of this particular case and by virtue of subsection (l) (c) thereof which permits restriction on individual liberty in the course of judicial inquiry or where, rightly as in this case, the appellant was arrested and put under detention upon reasonable suspicion of having committed a felony. A person's liberty, as in this case, can also be curtailed in order to prevent him from committing further offence(s). It is my belief as well that if every person accused of a felony can hide under the canopy of section 35 of the Constitution to escape lawful detention then an escape route to freedom is easily and richly made available to persons suspected to have committed serious crimes and that will not augur well for the peace, progress, prosperity and tranquillity of the society. I find support in so saying from Irikete's JSC, (as he then was) earlier pronouncement in the case of Echeazu v. Commissioner of Police (1974) N.W.L.R. 308 at page 314. I entirely agree with the court below that a charge of treasonable felony is a very serious offence and is prejudicial to National Security. I believe neither the appellant nor his counsel would sit down to fold up his arms, if on the seat of power, to allow any citizen to put his reign into terror and utter hopelessness or despondency while dancing to the music of a citizen who plots a Coup detat  against him. He will certainly fight it to the end”

All those who have condemned the call for the re-arrest of Mazi Nnamdi Kanu have not denied nor can they challenge all the facts deposed to in the affidavit of the Federal Government forming the springboard of the application for his re-arrest. They have not equally challenged the settled position of the law to the effect that all court orders must be obeyed [whether right or wrong] until varied, vacated, upturned on appeal or set aside. Their strongest argument has rather been that Arewa Youths must be arrested. I agree that the Arewa Youths must be reined in likewise every other person or group of persons whose conducts and speeches are promoting genocide and precipitating anarchy in the system. However, it is disingenuous to argue that until all those other irresponsible elements and adult urchins are apprehended the Federal High Court is without powers to enforce its own order. Section 287 (3) of the Constitution takes the wind off the sail of this pedestrian contention.  Indeed, it has never been a valid defence in criminal law that the prosecutor did not arraign all possible criminal suspects. This is because, criminal responsibility is personal. The Arewa irresponsible elements might still have their day in court today or tomorrow [who knows] as time does not run against the state in criminal trials.  It is now clear that those condemning the moves for the re-arrest Mazi Nnadi Kanu did not speak from the position of law but sentiment. Unfortunately, sentiments command no place in judicial deliberations as held by the Supreme Court in Kalu v. F.R.N. & Ors s (2016) LPELR-40108 (SC)."Per AUGIE, J.S.C. (P. 58, Paras. B-C. Earlier in Ezeugo vs. Ohanyere (1978) 6 – 7 SC 171 @ 184, the Supreme Court [per Obaseki, J.S.C.] expressly stated thus:

“Sentiments command no place in judicial deliberations for if it did, our task would be infinitely more difficult and less beneficial to the Society”.

END:

By mindlessly violating his bail conditions [even before the Court is yet to entertain his request for the variation of same], Nnamdi kanu, in the clearest of language, committed contempt of court which of its own is a separate criminal offence. Contempt of court has been defined as “a conduct likely to prejudice a fair trial or interfere with the exercise of judicial power or the enforcement of a judicial decision”. In his classic “The Due Process of Law”, Lord Denning, M.R. wrote at page 3 as follows: “There is no one stream of justice. There are many streams and whatever obstructs their courses or muddies the waters of any of those streams is punishable under the single cognomen ‘contempt of court... The importance of it [contempt of court] is this: Of all the places where law and order must be maintained, it is here in these courts. The course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundations of our society. To maintain law and order, the Judges have and must have power at once to deal with those who offend against it. It is a great power- a power instantly to imprison without trial- but it is necessary power.” The bottom line is that Mazi Nnamdi Kanu had choices placed before him. He had the liberty of the air to make his choice. With his two eyes fully open, he made a choice. The choice he has made carries its own consequences in law. If such consequences are unsavoury, he has to square up with them and contend with the law when the time comes. For a man who has tasted imprisonment and so much craved for freedom, when he finally got it, wisdom should have dictated that he would be circumspect. But no, he did not. He even at a point boasted that nobody would arrest him again. In the end, what he dared would not happen is closing in on him. He chose to disobey a valid and subsisting court order. That is sowing an ill-wind. I am not with him on that because the law is not with him on that too. He is clearly alone. The whirlwind is now about encircling him. He is now running helter-skelter, dredging up accusations against the Federal Government and shouting wolf where apparently none exists. Some of his sympathizers are now blowing up sentiments which our courts from time immemorial have resolved have no place in judicial deliberations. The whole brouhaha is indeed uncalled for. In one word: much ado about nothing. Such is the potency of the law!

JOHNMARY CHUKWUKASI JIDEOBI, Esq. is a Criminal Defence Attorney and a Human Rights Activist based in the F.C.T. Nigeria and could be reached on [email protected].