The Nigerian Bar Association, NBA, some leading lawyers and constitutional lawyer, professor Itsay sagay, have disagreed over President Muhammadu Buhari’s insistence that the former National Security Adviser, NSA, Col. Sambo Dasuki, and the leader of the Indigenous People of Biafra, IPOB, Mr. Nnamdi Kanu who are facing criminal charges, would not be released from custody, despite court orders granting them bail.
In his submission on the president’s stance, Sagay argued that the Federal Government was not in violation of the rule of law as any bail granted an accused is completely related to the offence which he is charged with.
The NBA and some Senior Advocates of Nigeria, however, contended that the position the president took violates the tenets of constitutional democracy, rule of law and the presummed innocence of an accused person. They argued that re-arresting someone immediately after the court has granted him bail makes a mockery of democracy which is anchored on the rule of law and separation of powers.
Buhari had in his first presidential media chat at the Aso Rock Villa in Abuja, adduced reasons why the Federal Government would not release both Dasuki and Kanu from detention.
Kanu, who is facing a six-count charge bordering on treason, has been in detention since October 14, 2015, when he was arrested by operatives of the Department of State Security, DSS. The former NSA, who is facing multiple charges before three different courts, was re-arrested last week at the gate of Kuje Prison, Abuja, shortly after he met his bail conditions.
Responding to a question during the media chat, President Buhari said considering the gravity of the allegations against them, they could jump bail if granted any form of freedom.
“Technically, if you see the kind of atrocities these people are believed to have committed against the country, if they are given the opportunity, they will jump bail. And the one you are calling Kanu, do you know he had two passports – one Nigerian, one British – and he came into the country without any? Do you know he brought equipment into this country and was broadcasting Radio Biafra? Which kind of government do you think should harbour that kind of person? There is a treasonable felony suit against him and I hope the court will listen to the case.”
But speaking on the issue, President of the Nigerian Bar Association, NBA, Augustine Alegeh, SAN, said “government has a need to respect the rule of law. As a matter of fact, there is need for government to be in the front burner in the respect for the rule of law. Whoever is unhappy, including government with a pronouncement of the court, has the opportunity of still going back to that court, for the court’s decision to be vacated or appeal to a higher court, but not to undertake to ignore it or carrying on as though nothing has happened or that the court’s order is not binding. That is an unacceptable principle
in the rule of law.”
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“…So, both government and citizens must subscribe to the principles of rule of law and
Doing otherwise is not an option. You cannot pick and choose which court order to obey, if you try to do that, you are clearly undermining the principle of rule of
law and the obvious consequence will not help the society in any way.
Some senior lawyers have also faulted the President’s position, saying it was offensive to the tenets of constitutional democracy.
The lawyers advised the President to, in future, allow the Attorney General
of the Federation and Minister of Justice, Mr. Abubakar Malami,SAN, to handle such topics on behalf of the government.
According to Mahmud Magaji, SAN, “going by provisions of our extant constitution, the presumption is that a person charged to court for whatever offence, is innocent until guilt is established. Unless Iam told that the constitution was amended last night.
That you level an accusation against someone does not make the person guilty automatically. If it is so, why then are the courts there? What we are practicing is constitutional democracy. Anyway, I did not listen to the media chat and cannot therefore speak much on the issue.”
Chief Joe Agi, SAN, said: “I really want to believe that the President did not mean what he said. I have a feeling that what he wanted to say was that though granted bail, if there are other cases against the accused persons, they could be re-arrested, notwithstanding the pending case.
“It will be totally wrong to refuse to release someone on bail in the absence of any Pending allegation. Clearly, I am so sure that what the President meant to say was not what he said or what was understood. We should also appreciate the fact that he is not a lawyer.
“If I am to advise the President, I will say he should in future, leave such issues to the Attorney General of the Federation to clarify.”
On the matter, a constitutional lawyer, Mr. Festus Ogwuche, declared: “The President got it wrong. No matter the number of allegations against an accused person, once the matter has been charged before a competent court, that court assumes powers to determine whether or not the person deserves bail.
“Court orders are made to be obeyed, if not, it becomes impunity. No matter the gravity of the offence, an accused is presumed innocent until proven guilty.
Proper investigation ought to have been conducted and concluded before a person is charged. Re-arresting someone immediately after the court has granted such person bail makes mockery of our democracy which is presumably anchored on the rule of law and separation of powers.”
However,legal icon, Professor Itse Sagay, SAN, differed saying the Federal Government was not in violation of the rule of law.
“The way I see it is that any bail granted an accused, is completely related to the offence (for) which he is charged before the court. So, if after he (the accused) has been granted bail and the prosecution discovers another offence for which no bail has been granted, then the accused can be re-arrested. So, that cannot be in violation of a bail, which is in relation to an earlier stated offence.”
Sagay, who is also the chairman of the presidential committee on anti-corruption, added: “I do not know the full facts, but what I am saying is that if this re-arrest arises out of fresh offences, which are not part of the ones for which the person had been granted bail, then there is a right to arrest. This is not a breach of the rule of law.”
