When the law is helpless

In his 1651 famous work Leviathan, Thomas Hobbes had predicted that man may one day get to a situation where life would become “nasty, brutish and short”, especially when men of steel are placed in crucial positions of authority. Some weeks back, I had opined that Nigeria was sliding towards civilian dictatorship, when I concluded as follows:

“With the media in the kitty, the judiciary under firm grip, the legislature willing and compliant, the opposition in shambles, the labour unions only existing for wages and emoluments, with civil societies and human rights groups dead and buried, we now seem to be approaching that period that we all dread to talk about, civilian dictatorship. May this never be the lot of Nigeria, at least not in our lifetime.”

We got a glimpse of things to come on December 6, 2019 at the Federal High Court, Abuja, when the publisher of Sahara Reporters online news medium, Mr. Omoyele Sowore, was re-arrested by operatives of the Directorate of State Security, moments after he was released on bail as directed by the court. Though the accounts of what actually transpired in court have differed substantially according to different authors, but one thing that has been confirmed so far is that Sowore and his co-defendants have not been allowed to enjoy the bail granted to them by the court. It is also not in dispute that DSS operatives invaded the premises of the Federal High Court in Abuja and even entered the courtroom, in the course of active judicial proceedings.

What exactly are the facts? The federal government of Nigeria, through the DSS, charged Sowore before the Federal High Court, Abuja, for allegedly planning to overthrow the government through his #RevolutionNow campaigns. Upon his arraignment, an application for bail was filed before the court. It was vehemently opposed by the DSS but the court granted it upon very stringent terms, some of which Sowore could not meet, thus prompting his further application to the court to vary the conditions of his bail, which the court granted in part. Eventually, Sowore was able to perfect the conditions of his bail, prompting the judge, after verifying his sureties and their documents, to direct his release from DSS custody, which order was not complied with, for one reason or the other. On December 5, 2019 when the case came up in court, the judge directed the DSS to release Sowore within twenty-four hours, which order was complied with in the evening of the same day.

The case then came up in court on December 6, 2019, for report of compliance with the order of the court for the release of Sowore and his co-defendant. All hell was however let loose on this day. From the different video evidence widely circulated concerning the events that took place in court, it became clear that the DSS was not sincere about complying with the order of the court, but rather had a plan to keep Sowore in custody perpetually, in the same way it has kept Col Sambo Dasuki (Retd), since 1999, without trial. It has since emerged that the DSS is claiming to have filed new charges against Sowore, for which he was to be arrested right in the premises of the court. Then you ask why inside the court premises? What was the need to have asked the defendants to go through the rigour of furnishing sureties, to deposit millions of naira and their title documents pending the trial for which the DSS is not ready to prosecute? Why? Afterall, part of the conditions for his bail as set by the court is that Sowore must remain in Abuja for the duration of his trial. So, the DSS could still have arrested him at any other time without all the drama that ensued.

It does not speak so well of the executive arm of government to keep trampling upon another arm with such brazen effrontery, without regard to the sensitive nature of the judicial arm of government as the main source of hope for the hopeless. When a judge is unable to guarantee the freedom of a citizen who is standing trial before the court, then impunity has taken the place of law and order, rendering law itself comatose and helpless. How does an agency of government begin to arrogate the power of review of judicial actions to itself, without any law to back it up? It was through the order of the same court that the DSS was authorized to detain Sowore in the first place, so if that same court subsequently issues an order for his release, upon what or whose authority will DSS refuse to comply with that order?

The most probable reason for the re-arrest of Sowore by the DSS is that a new charge may have been filed against him. In law, there must be an end to prosecution, as no one is allowed to conduct prosecution of any case piecemeal. Ever before the DSS arrested Sowore, all necessary investigation should have been concluded, which should disclose a prima facie case of criminal liability, against him. It is not proper to arrest a citizen and thereafter be fishing for evidence to substantiate his arrest. Sowore has been under the custody of the DSS since he was originally arrested and so, he could not have committed another crime whilst in custody and if that is the case at all, the DSS should come out clean and disclose the details thereof to Nigerians. This is not about Sowore but rather the rule of law.

In all climes, the repository of the law is the law court itself, which has the power to interprete the law and give its verdict on the issues in controversy between the parties. In Nigeria presently, the law (the court) has become totally emasculated, sufficiently traumatized and deliberately humiliated to become totally powerless and thus, helpless. The main purpose of setting up the courts is to dispense justice according to law, without illwill, favour or affection and to curb all forms of impunity and lawlessness. The law is to rescue the weak from the mighty and in some unusual cases, to rescue the mighty from itself. But this is not the case in Nigeria presently, as the law (the court) has become totally helpless to help anybody. The law now is as the executive arm of government dictates. Thus, you can only enjoy or enforce your rights through the law to the extent that the executive arm of government permits and the courts can only function and be effective, in line with the boundaries set for them by the government. This is not right.

But we cannot keep silent. No, we cannot afford to do so. The law has to wake up from its seeming slumber, either as imposed or as inflicted. The law must assert itself, in the interest of our nation and our future. It is clear that we are in very perilous times now and the law has to stand up to bare its fangs, most decisively. The wheels of justice must not drag so slowly again. This is not rocket science at all, as the courts have the backing of all Nigerians and indeed the international community to bark and bite, the maxim being fiat justitia ruat caelum (let justice be done, though the heavens fall). And I can assure My Lords that the heavens will surely not fall. A few weeks ago, the Federal High Court held that the Economic and Financial Crimes Commission was not competent to prosecute a defendant based on an existing agreement with the government. Not long thereafter, another court directed the Honourable Attorney-General of the Federation to proceed to recover multiple pensions paid to past governors, whilst in Sowore’s case, the presiding judge gave the DSS a 24-hour ultimatum to release the defendants. What am I saying? Impunity and lawlessness can only reign when they are not confronted or checkmated. We certainly cannot continue in this way, when the judiciary has become the whipping boy of the executive arm of government. It was not so even under the military and it cannot be so now, with a democratically elected government.

Let our judges rise up and show raw courage, as it takes just one act of cowardice and a little dose of timidity for evil to thrive, when good people stand aloof and do nothing. Likewise, it takes just a single act of courage to send lawlessness packing, when good people stand up to be counted against the reign of evil and terror. If there is any prosecuting agency of government that is found wanting in obeying the positive orders of any court, let the courts take a stand not to entertain any further charge against any other citizen by that agency until there is full compliance with the extant order of the court, anywhere in Nigeria. It would appear that all that we are currently witnessing now are nothing but some dress rehearsals for the real agenda which is yet to unfold; the actors are only just testing the waters to gauge the willpower of the courts and the people of Nigeria, ahead of the real game plan. We cannot afford to surrender to that plan and fold our hands for the worst to happen. No. The courts must rise in defence of the entity called Nigeria, to protect our Constitution and to rescue the law from its seeming helplessness. Over to you, My Noble Lords.