Dear AGF Malami, You Need To Apologise To Sowore and Dasuki -By Femi Falana

Abubakar Malami Esq. (SAN)
Attorney-General of the Federation and Minister of Justice,
Federal Ministry of Justice,
Maitama District,
Abuja, FCT.

Dear Honourable Minister,

In a press statement issued on December 24, you announced that you had directed the State Security Service to release Mr. Omoyele Sowore and Sambo Dasuki from illegal custody. Both defendants have since been released on bail pending their trial. Apparently embarrassed by media reports that the release was occassioned by the pressure mounted on the federal government at home or abroad, the Presidency and your offfice have attempted to justify the highly contemptuous detention of Sowore and Dasuki for four months and four years respectively.

Thus, while speaking to the BBC Hausa and the Hausa Service of the Voice of America last week, you were reported by your spokesman, Dr. Umar Gwandu, to have said that “the individuals concerned were released out of compassion and mercy as well as obedience to the rule of law and not because of any extraneous consideration maintaining that the Federal Government has the right to keep detaining the suspects while challenging the order admitting them to bail up to the apex court.” You were also alleged to have said that the multiple options to government in the circumstance, “include the right to appeal the said ruling, the right to ask the same court that issued an order to vary or review the terms of the order, as well as the right to request for stay of execution of the order pending the hearing and determination of an appeal in that matter”.

We would have ignored such apologia for official impunity but for the need to clarify the current state of the law on the status of persons who have been admitted to bail pending trial in a criminal court. It is trite law that once a trial court has granted bail to any person standing trial for any offence whatsoever and the bail conditions have been met, the detaining authority shall release the person from custody without any further ado. In other words, the refusal to release a defendant who has been admitted to bail by a trial judge is tantamount to contempt of court. Hence, before Sowore’s release, we had filed Forms 48 and 49 for the committal of the director-general of the State Security Service to prison for contempt of court.

It is submitted, without any fear of contradiction, that under the current human rights regime, no authority has the power to detain any person beyond 48 hours in any part of Nigeria without a court order. Hence, if a criminal suspect is going to be detained beyond 48 hours for security reasons or for any reason whatsoever, the detaining authority is required to secure a remand order from a Magistrate Court pursuant to section 293 of the Administration of Criminal Justice Act, 2015. For the avoidance of doubt, the government is not permitted to refuse to comply with the order of bail under the pretext of defending the security of the nation. Even under the defunct military dictatorship, detaining authorities were not authorised to incarcerate any person for “security reasons” in defiance of court orders.

Indeed, the executive arm of government was not allowed by law to be the sole determinant of what constituted national security or state security. In Commissioner of Police v Agbaje (1967) NMLR 65, Akinola Aguda J (as he then was) had cautioned that “If the resolution of such a conflict is left in the hands of any arm of the executive as in this case where the power to put a citizen in custody for no proved offence is left at the discretion of the Inspector General of Police by an Act of the legislative body, then the role of the Courts to perform is to make sure that that the Inspector General of Police confirms strictly with the enabling legislation. Once I am satisfied that he conformed with the provisions of the Act and also that persons carrying out his orders likewise conformed with those provisions, I do not conceive that it is part of my duties to inquire at any rate in this suit, whether Decree No 24 is valid or not.”

Honourable minister, we concede that the government is entitled to appeal against the order of bail if it is dissatisfied with it. But in the cases of Sowore and Dasuki, the federal government did not file an appeal against any of the orders in question. Hence, no application was filed for stay of execution of the orders. Assuming that the federal government had filed an appeal against the orders of bail, the mere filing of the appeal could not have constituted an order of stay of execution of the orders for bail. In Nigerian Army v Mowarin (1992) 2 NWLR (Pt 235) 345, the Court of Appeal has ruled that where the government files an appeal against the order of a high court for the release of any person from custody, the order cannot be stayed pending the determination of the appeal because the liberty of a citizen cannot be put in abeyance.

In the interview, you also said that both Sowore and Dasuki were released on grounds of mercy and compassion. With profound respect, you have no power to release any detained defendant from custody on compassionate grounds. As you are no doubt aware, only the president and state governors are entitled to exercise the prerogative of mercy or release any convicted person on compassionate grounds by virtue of section 175 of the Constitution of the Federal Republic of Nigeria, 1999. In Solola v. State (2005) 11 NWLR (Part 937) 460, the Supreme Court held that a person convicted of murder and sentenced to death by a High Court and whose appeal is pending at an appellate court cannot be pardoned by the head of state or governor of a state pursuant to sections 175 and 212 of the 1999 Constitution until the appeal has been finally determined. It follows to reason that the power of prerogative of mercy cannot be invoked to justify the release of a person standing trial and who has been admitted to bail but detained illegally by the State Security Service for alleged security reasons.

With respect, the federal government has itself to blame for the needless controversy that has trailed the release of the duo. In the case of Sowore, the State Security Service refused to comply with the order made by Justice Taiwo Taiwo for his release on bail. Even after the order of Justice Ifeoma Ojukwu for the release of Sowore and his co-defendant, Olawale Bakare had been reluctantly obeyed, a gang of armed security operatives stormed the court to rearrest the former. In the process, he was brutalised in the courtroom, while Justice Ojukwu was forced to rise due to the disruption of the proceedings of her court. The footages of the desecration of the court, which was widely circulated in the social media, exposed the federal government to unprecedented ridicule. Thus, despite the denial of involvement by the SSS in the show of shame you had to take over the case. However, we were flabbergasted when you turned round to inform us that you had no power to direct the State Security Service to comply with the order of the federal high court for the release Sowore from custody.

It is also on record that for about four years of detaining Colonel Dasuki, the federal government did not take steps to set aside or vary or stay the execution of the five orders which had granted him bail. As if the contemptuous act of the SSS was not enough, you repeatedly maintained that the orders could not be obeyed, on grounds of national security. In confirming your curious position, the presidency said last Friday that, “The Attorney General of the Federation who is the chief law officer, as far as the government is concerned, has convinced everyone and the government inclusive that there is a basis for their continued detention because the individual right must not undermine the collective right.”

But having belatedly deemed it fit to review your position and advise the federal government in line with the tenets of the rule of law, you ought to have apologised to both Sowore and Dasuki. That is what is expected of you in accordance with section 32 (6) of the 1999 Constitution. It is not an occasion for grandstanding or arrogant display of power. In a recent article entitled “How Buhari military regime released detainees on court orders”, I did recall that the Buhari miltary junta released 13 out of the several persons detained under Decree No 2 of 1984 on the basis of court orders and on the advice of the then attorney-general of the federation, the late Chike Offodile (SAN). It was my conlusion that having complied with court orders to release detainees as a head of a military junta, President Buhari would not have disagreed with you if you had insisted that court orders be obeyed. I am of the strong view that it is not too late to make compliance with court orders a cardinal policy of the Buhari administration.

Finally, while wishing you a challeging year ahead, please accept the assurance of our highest professional regards.

Yours Sincerely,

Femi Falana (SAN)

Femi Falana, a Senior Advocate of Nigeria (SAN), writes from Lagos.