Sowore’s Detention, Impunity And The Role Of The NBA

By Raymond Nkannebe

Last week, I had called out in this column, the fascist and dictatorial disposition that informed the arrest and detention of the publisher of Sahara Reporters online newspaper-Omoyele Sowore. In that piece, I opined that there was nothing Treasonable in the conduct of the Rights activist and if anything, his statements in the video clip which went viral before the scheduled ‘Revolution Now’ protest amounted to sedition, which is no longer an offence in consequence of the decision of the intermediate appellate Court in the case of Arthur Nwankwo v The State (1985) 6 NCLR 228.

As providence would have it however, a Federal High Court in Abuja presided by the Hon. Justice Taiwo Taiwo on Tuesday, 24th September, 2019 admitted the accused Sowore to bail pending his arraignment for the so called charge of Treasonable Felony amongst a host of other  alleged offences. The only condition given by the learned trial judge in perfection of the bail was the deposition of the international passport of the accused with the registry of the Court. That condition was met almost immediately. Yet, 5 days after the release order was made and the conditions fulfilled, the operatives of the Department of State Services are yet to comply with the positive orders of the Court of competent jurisdiction.

As at the time of this writing, Sowore remains in the facilities of the DSS in what would pass as a most grotesque abuse of the judicial powers of the Court. The reasons that have been advanced by the DSS for not complying with the orders of the Court is as ridiculous as any one can imagine. It claims not to have been served with the said enrolled order of the Court. Never mind that it was represented by counsel in the proceedings and that a bailiff of the Court has made several attempts to serve the said order on it, while it continues to evade service in a Machiavellian fashion that fits into a method.

At this time, there are insinuations in some section of the media that the Federal Government is contemplating a Petition to the National Judicial Council to complain against the Hon. Justice Taiwo Taiwo’s exercise of discretion in admitting the accused to bail. The ostensible reason for this move, is that Treasonable Felony is not one of such offences for which an accused person may be admitted to bail. In essence, the Federal Government seeks to puncture the judicial immunity enjoyed by judges; the foundation on which the institution of the judiciary is erected. This desperation on the part of government especially in a supposed democracy is alarming.

We understand that the legal team of the accused Sowore has since commenced  committal proceedings against  the DSS inorder to force Compliance with the expression and unequivocal orders of the Court. That process should come full circle by next week all things being equal.

In the meantime, it is rather unfortunate that the Buhari led administration has refused to learn from its past. It would appear to the contrary that the administration seems to be emboldened in its well documented history of disobedience to Court orders. From Dasuki to El Zakzakki and now Sowore, this undemocratic disposition finds ugly expression. Some persons have suggested that the Buhari Government might administer the El-Zakzakki treatment to Sowore and  what one has seen so far, fits perfectly into that narrative aided by a reign of Impunity.

When orders of the Court are flouted by the government with reckless abandon, it makes mockery of the time honoured precepts of Separation of Powers as propounded by French philosopher, Baron D’ Monstesque. But even more, rubbishes the essence of the democratic principle of Rule of Law, upon which the institution of democracy rests. The implications for such a state is the likelihood of descent to anarchy as the judiciary-that near-mystical  institution that holds the balance in any democracy is demystified.

Our Supreme Court had occasion to call out the implications of the disobedience to Court orders and especially by the government in the often cited case of  Military Governor of Lagos State & Ors v.Ojukwu (1986) LPELR-3186 (SC). In that case, harping on the principle of Rule of Law and it’s interplay vis-a-vis governmental actions, the apex Court per. OBASEKI J.S.C (of blessed memory) put it squarely thus:

“The Nigerian Constitution is founded on the rule of law the primary meaning of which is that every thing must be done according to law. It means also that government should be conducted within the frame-work of recognized rules and principles which restrict discretionary power which Coke colourfully spoke of as ‘golden and straight metwand of law as opposed to the uncertain and crooked cord of discretion’ (see 4 Inst. 41). More relevant to the case in hand, the rule of law means that disputes as to the legality of acts of government are to be decided by judges who are wholly independent of the executive. See Wade on Administrative Law 5th Edition p. 22-27. That is the position in this country where the judiciary has been made independent of the executive by the Constitution of the Federal Republic of Nigeria 1979 as amended by Decree No. 1 of 1984 and No. 17 of 1985. The judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law. It is both in the interest of the government and all persons in Nigeria. The law should be even handed between the government and citizens.”

Unfortunately, those admonitions have been observed in the breach at no time in our history than under the Buhari administration. While the Sowore detention saga raged on at home, president Muhammadu Buhari was attending the 74th session of the United Nations General Assembly where he told the august body in his address how fundamental the Rule of Law principle is, and how his administration has ensured it’s observance at home. But he was telling a lie. 

“In Nigeria, we have made significant strides to put our own house in order. We will work tirelessly to uphold due process. The rule of law remains the permanent, unchanging foundation of the world order”, he said. Yet, within this remarks lay the very hypocrisy of the regime. Despite acknowledging the fundamental role of the Rule of Law in the life of every democracy, Nigeria under his watch, pundits agree has been defined by a well known pattern of disobedience to Court orders with impunity. Of which the Omoyele Sowore case is the latest in a long series.

But Nigeria cannot continue like this. Not after 59 years of Independence. Arising from this, the attitude of many Nigerians is that it is not safe anymore in the country. And taken further, lends credence to Nnamdi Kanu’s description of this place as a “zoo” of sorts. When the civil liberties of the citizenry is threatened, when  Court orders are  treated by the government with scorn and levity and even further with threat of investigation of the judicial officer handing the particular order as with Justice Taiwo of the Federal High Court, then the days of tyranny may not be long.

The Nigerian Bar Association-the umbrella body of Nigerian lawyers which has as its motto- Promoting The Rule of Law must be heard in condemnation of what has become a disturbing pattern of governmental indiscipline. As there can be no better way of its promoting the Rule of Law. For when all other things fail in a democracy, the Judiciary must be seen standing tall. Any attempt therefore to render its judgements and pronouncements nugatory must be resisted by all. And no  tribe of professionals should be in the vanguard of that resistance more than members of the legal profession.
This impunity has to stop.

Nkannebe, a legal practitioner and public interest commentator writes from Lagos. Comments and reactions to raymondnkannebe@gmail.com. He tweets @RayNkah

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