JUSTICE Nnamdi Dimgba of the Federal High Court sitting in Abuja on Thursday ordered the Department of State Services (DSS) to pay N10.5 million to a Bayelsa based journalist, Mr Jones Abiri as compensation over his illegal detention for two years by the security agency.
Justice Dimgba, sitting as a vacation Judge, while ruling on a fundamental rights enforcement suit brought against the DSS by Abiri, held that Abiri’s detention was illegal and a breach of his fundamental rights.
He held that Mr. Abiri’s detention by the DSS was illegal and unconstitutional and added that the DSS did not deny arresting and detaining the journalist since July 2016, denying him access to his doctors, family and friends, adding also that, when Abiri was eventually charged to court earlier this year, he was not charged with the crimes for which he was arrested.
Justice Dimgba, said the court was not persuaded by the position of the DSS that the embattled journalist constituted a threat to national security and held that no security agency has the power to illegally detain a citizen beyond the period allowed by the constitution.
He maintained that mere reliance on threat to national security was not sufficient ground for the DSS to override the rule of law and personal liberty of any citizen not facing charges involving capital punishment.
The court stressed that while the law did not foreclose the arrest and detention of a citizen on ground of a reasonable suspicion, it said such detention must be in accordance with the rule of law.
It held that it was wrong for the DSS to justify its action on the strength of the decision of the Supreme Court in the case between the Federal Government and Asari Dokubo.
Justice Dimgba noted that whereas Dokubo was detained and charged to court, the Applicant in the instant case was illegally detained without trial.
The court stressed that national security must be subject to the rule of law.
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It said: “While it is not in doubt that the Respondent is charged with the duty of prevention and detection of any crime against the internal security of Nigeria, I must as well state that even if the Respondent strongly believes and have all the evidence to prove that a person is indeed guilty of committing a capital offence, it is not within the parameters of the Respondent to determine so.
“While I totally agree with the argument of counsel for the Respondent in the case of Alhaji Mujahid Dokubo-Asari V. Federal Republic Of Nigeria (2007) LPELR-958(SC) that where national security is threatened or there is the real likelihood of it being threatened, human rights or the individual rights of those responsible take a subdued place, I do not believe that principles which are justifiable not only as a matter of law but also as a matter of common sense, provides sufficient basis of an unchecked abridgement of the liberty of citizens.
“The point must be made, loud and clear that the Rule of Law and National Security are not inevitably and unavoidably at war with each other; they do not exist as foes and adversaries.
“The Rule of Law is not abhorrent to National Security. The Rule of Law accommodates National Security. This was exactly the situation that played out in the Asari Dokubo case relied on by the Respondent, and where the opinion was expressed that National Security could in some instances triumph over individual liberties.
“Indeed, the Asari Dokubo case is in itself a classical example that supports my general proposition above that the Rule of Law is not abhorrent to National Security but that the Rule of Law does indeed, as a matter of fact, accommodate National Security.
“I also do not believe that submission of counsel to the Respondent that the granting of this application will prejudice the interest of justice and national security as the facts of this case does not support same.
“If it was not so, why was the Applicant not charged with the appropriate offence within a reasonable time, but charged with the offence of criminal intimidation at the lower court 2 years later after this suit has been filed, and which offence of criminal intimidation obviously is not one that affects national security and has a prescribed jail term of two years upon conviction.
“In any event, national security does not stand on its own but is circumscribed under the Constitution which equally guarantees the fundamental rights of the Applicant.
“Any steps taken by law enforcement agencies to protect national security must be confined within the precincts of the law. The Respondents, in this case, have not done so, as I do not see any legal justification whatsoever for the detention of the Applicant without an order of Court for a period of two years and not charging him to Court.
Finally, it was also very open to the Respondent if it wanted to keep its detention of the Applicant within the bounds of the Law, to utilise the leverage provided for them under the Terrorism Prevention Act to obtain a detention order to keep the Applicant for the period which the law allows the Respondent to do.
“This is also, in my view, a further illustration of the realistic nature of the Rule of Law, and that the Rule of Law is not impervious and unconscious of the enormous challenges that face security agencies in their difficult but noble task of securing society with the rise of terrorism and other criminal elements.
“But the Respondent failed to explore and exploit the window offered by the Terrorism Prevention Act. By detaining the Applicant for a period way over that prescribed by law, and also not taking advantage of the Terrorism Prevention Act, it will appear that the Respondent has orbited outside the circumference of the Law. It is the duty of the Court to pronounce it as such and to offer appropriate remedies.
“It is for the reasons contained in the body of this judgement that I resolve the sole issue in favour of the Applicant”, Justice Dimgba held.
Consequently, the court ordered DSS to pay N10million as damages for infringing on the fundamental rights of the Applicant, as well as to pay him N500, 000 to cover the cost of the litigation.
Recalled that Abiri was, last month released from the DSS custody following mounting pressures from human rights group and the media.
After he was released, Abiri, through his counsel, Chief Femi Falana (SAN), filed a fundamental rights enforcement suit before the Federal High Court, Abuja demanding for the sum of N200 million as compensation for the alleged abuse of his rights.
He prayed the court to among other, reliefs, declare his incarceration unlawful and to hold that his prolonged detention without trial violates his right to personal liberty, dignity of person, freedom of association and fair hearing.
He, therefore, asked the court to award a fine of N200 million against the defendants in his favour as a compensation for the wrong done to him as a person.
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