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Open Letter to Justice Minister Malami: Impunity is Increasingly Defining Your Tenure

By: Johnmary Chukwukasi Jideobi on May 17, 2017
Dear Sir,

I bring you warmest greetings from the constituents and Apostles of Rule of Law and Constitutionalism in Nigeria.
Sir, there is no other time in our recent history when executive lawlessness, characterized by flagrant disobedience to sacred orders of court , has dominated the platform of public discuss and boggled the minds of Democrats more than the present time in which the government to which you act as its Chief Law Officer holds sway. This position will shortly be vindicated and fortified by statistical evidence which shall be marshaled out in the course of this letter.
The soul of this letter is donated by the large-scale impunity, confounding executive recklessness, flagrant abuse of power, inexplicable disobedience to sacred orders of our courts by persons and authorities currently exercising the plenitude and amplitude of powers of the Federal Government of Nigeria under the subsisting Amended 1999 Constitution of the Federal Republic of Nigeria which is supposedly binding on all authorities and persons throughout the Federal Republic of Nigeria. It is the unfortunate reality that this most sacred document [the Constitution], which ordinarily ought to be enjoying pervading bindingness on all government functionaries, is suffering untold humiliation and unprecedented desecration in the hands of different government agencies, authorities and functionaries of the government you are meant to advise that necessitated this urgent public letter to your person.
My reasons for writing you are understandably manifold but for economy of space, I would scale it down to three. Like a Lady’s skirt, this urgent letter of grave concern promises to be short enough to be attractive but equally long enough to cover all the essential parts of the issues under scrutiny.
First and foremost, [by the infinite mercies and grace of God Almighty] I am a proud member of this most honourable profession on this planet earth, the legal profession, just as your good yourself. And it is hardly disputable that the future of democracy in every civilized society lies on the shoulders of lawyers.
Secondly, the office of the Attorney-General of the Federation is recognized as a great historic office that places its occupier in the rare position of the “Keeper of the King’s conscience”, the Chief Law Officer/Legal Adviser to not only to the President of the Nation alone but equally the entire Federal Government with all the Ministries, Departments and Agencies there under. Added to these super responsibilities, by the ancient and ever-unbroken tradition of our profession, you are rightly acclaimed the “Leader of the Bar.”
The third crucial reason for this urgent letter is the lessons of precedents. The pre-eminent and incontestable position of the Attorney-General, under the common law, as the chief law officer of the State, either generally as a legal adviser or specially in all court proceedings to which the State is a party, has long been recognized by the courts[State v. Ilori (1983) 2 S.C. 155]. The enormous powers bestowed on you by our Constitution have been acknowledged as a great ministerial prerogative coupled with grave responsibilities. It follows therefore that however you decide to exercise these awesome powers donated to your office today will definitely form a precedent for the future. Whether your manner of discharging the duties of your office today might be adjudged a bad or good precedent belongs to posterity and should therefore be of great concern to you.
Sir, not long after you were sworn in as the Attorney-General of the Federation, the Federal High Court of Nigeria [Abuja Division, presided over the Honourable Justice A.F.A. Ademola], delivered a Ruling ordering the Department of State Security to release Mr. Nnamdi Kanu [the Leader of the separatist Indigenous People of Biafra] on bail [unconditionally] on the 17th December, 2015. That Court Order was disobeyed by the Department of State Security [otherwise known as the DSS] who by our Constitutional structuring are under the ultimate command of the President as per his pre-eminent position as the Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria.
Secondly, it is no longer news that the High Court of Federal Capital Territory [per, the Honourable Justice Huseni Baba-Yusuf] granted bail to the former national security adviser, Colonel Sambo Dasuki (Rtd). The same Court equally granted after him bail [per, the Honourable Justice Afen] in another charge brought against him by the Federal Government. Sometime in January, 2017, the same F.C.T. High Court, presided over by the Honourable Justice Huseni Baba-Yusuf was moved by Mr. Ahmed Raji, SAN to re-affirm the bail earlier granted Mr. Dasuki. Again in April, 2017, the Federal High Court [sitting in Abuja, per the Honourable Justice Ahmed Mohammed] was similarly moved by Mr. Ahmed Raji [Dasuki’s Counsel] to re-affirm the bail earlier granted Mr. Dasuki by the said Court since 2015. On the 4th October, 2016, the Court of the Economic Community of West African States, ECOWAS, declared the arrest and detention of former National Security Adviser, Sambo Dasuki, as unlawful and arbitrary. The court also held that the further arrest of Mr. Dasuki by government on November 4, after he was granted bail by a court of law, amounts to a mockery of democracy and the rule of law.
Up to the present moment, Mr. Dasuki still remains in the custody of the DSS. On the 16th May, 2017, the State Security Service [otherwise known as DSS] took their impunity and bewildering insolence for the Courts to a higher level when it refused to produce Mr. Dasuki for his trial before the FCT High Court. All that Mr. Rotimi Jacobs, SAN [the Prosecution counsel] could tell Justice Baba Yusuf was that he was surprised that the former NSA was not within the court premises for the continuation of his trial but however could not go any further. Off course, this did not go down well with the Defence team led by Joseph Daudu, SAN who quickly informed the court that the Prosecutor’s response was unhelpful.
On 13th December, 2015, Sheikh Ibrahim El-Zakzaky was arrested by Nigerian State Actors and was kept in the custody of the DSS until the 2nd day of December, 2016 when the Federal High Court [Abuja Division, presided over by the Honourable Justice Gabriel Kolawole] ordered the Federal Government to provide an accommodation for El-Zakzaky, his wife and family members within Kaduna State or any part of the northern region. The court declared the continuous detention of El-Zakzaky since December 13, 2015 as unlawful and illegal since the issue of protective custody was unknown to law or the National Security Agencies Act establishing the DSS. The court further awarded the cost of 25million naira as general damages to be paid to Ibrahim El-Zakzaky who must be released unconditionally to the Inspector General of Police (IGP) within 45 days. The Inspector-General of Police was equally ordered to convey El-Zakzaky and his wife to the accommodation provided by the government. The court also awarded 25m damages to Mrs Zakzaky, making a cumulative of 50million Naira as general damages. Since the 2nd day of December, 2016 up to the present moment, the DSS has not obeyed that Court Order. On the contrary, the DSS have continued to detain Ibrahim El-Zakzaky. The said order of the Court has equally not been stayed, vacated nor successfully challenged and upturned on appeal.
On the 31st October, 2016, a mammoth crowd of lawyers under the aegis of Lawyers in Defence of Democracy staged a protest that shook the heart of the Federal Capital Territory, Abuja. According media sources, the Convener of the Group, Ikenga Ugochinyere, Esq., stated the purpose of protest thus;
“We Lawyers in Defence of Democracy and Citizens for Good Governance reject the call for the judges, whose homes were invaded by the DSS, to step aside as heeding the call will be a victory for tyranny and gradual return to Kokoma democracy. We dissociate ourselves from such call. That the DSS and other agencies release from detention all Nigerians who have been granted bail by the courts and who have fulfilled their bail conditions including compliance with all judgments and orders. Their continuous hold of such persons is an affront on the authority of the judiciary, dictatorial and a desecration of the fundamental democratic principle of separation of powers. The Executive cannot be prosecutor and judge at the same time… A country where a man can secure bail four times for the same charges and you still detain him is lawless. A country where a judge will grant bail on bailable offences and the person involved is then arrested on phantom corruption charges because he ruled against the whims and caprices of persons in government are a lawless country.”
It is noted in the passing that the protesters among other key institutions, equally marched to your office on the day of the said protest. Also of interest is the fact that the Convener of the Group has been in the detention ever since up to the present moment without a criminal charge formally filed against him before any Court of the land.
On Thursday, the 26th day of January, 2017, the Federal House of Representatives, resolved to urge the Executive arm to direct security agencies to obey court orders, especially those relating to bail and production of accused persons in Court for trials; and mandate the Committee on Human Rights and Justice to investigate cases of detention of accused persons beyond the statutory period in contravention of subsisting Court Orders granting them bail, failure to release or produce accused persons in Court for trial and prevail on the offending agencies to ensure their releases and report to the House within four (4) weeks for further legislative action. Interestingly, on the same legislative day, the Federal House of Representatives considered and adopted a motion titled “Need to check persistent Fundamental Human Rights Breached and Acts of Impunity by Security Agencies”. After a robust and wide-ranging debate on the Motion, the House noted that the Chapter Four of the Constitution of the Federal Republic of Nigeria,1999 and the African Charter on Human and Peoples Rights, guarantee, among others, rights to peaceful assembly, personal liberty and freedom of movement but concerned about the rising cases of violation of those rights; also noted the air of impunity with which the personnel of the security agencies treat citizens and the worrisome tendencies to disobey court orders; concerned about the recent arrest and detention, on 22nd December, 2016, of some members of Civil Society Organizations, such as Lawyers in Defence of Democracy, National Youth Council of Nigeria and Citizens for Good Governance by the State Security Service for allegedly planning a peaceful protest and they have remained in detention for over 29 days since their arrests without being charged to Court or released. The House resolved, among others, to mandate the Committee on Human Rights, Police Affairs, National Security and Intelligence and Justice to investigate this incident and all other cases of unlawful arrests and detention of citizens and disobedience of Court Orders since June, 2015 and report to the House within four (4) weeks for further legislative action.
When he appeared before the Nigerian Senate for his confirmation, the current Chief Justice of Nigeria, on the 1st of March, 2017 roundly condemned the rampant cases of disobedience to Court Orders. Fielding questions from the lawmakers, the CJN said the challenge of disobedience to court orders “is for the legislature and the executive to handle.” He said the judiciary would welcome that day that court judgments would be respected and carried out after exhaustion of the right of appeal. That will mean the independence of the judiciary, he added. If rulings are not respected, the judge continued, they would just be “mere piece of paper.” “Anyway, disobedience of court order is an act of impunity,” he said.
The Nigerian Court of Appeal in the memorable case of Balonwu v. Obi (2007) 5 NWLR (Pt. 1028) 488 at 538 Paras.C- E, 564-565 Paras.B – G, has this to say on disobedience to sacred Orders of Court;
“An order of court whether valid or not must be obeyed until it is set aside. An order of court must be obeyed as long as it is subsisting by all no matter how lowly or highly placed in society. An act of disobedience towards an order of a court can render any further act by those who have acted disobediently to sanctions from other court because no court would want its orders flouted. This is what the rule of law is all about hence the courts have always stressed the need for obedience of court orders…Obeying court orders is both legal and moral obligation but you find that court orders are toyed with both by lawyers and the litigating public. Indeed for the politicians, the rule of law is non-existing until it suits their purpose, and it is only then it is observed to the letter. Without a strict adherence to the rule of law, our nascent democracy and indeed our Constitution will only be worth the paper on which it is written. What makes a great country is adherence to the rule of law. Even in hell, there is order and discipline.”
Indeed, all the existing Supreme Court authorities lean heavily in support of the long-established postulation that disobedience of Court Order (otherwise called contempt of Court) is an abomination of the rankest specie just as it is an anathema in every democracy worth the name as it holds the key to the floodgates of anarchy and societal destruction. Condemning this cancerous vice, the Supreme Court, in the case of Hart v. Hart (1991) 21 N.S.C.C. (Pt. 1) 184 at 199, had these unkind words for those who disobey Court orders (contemnors);
“I would like to state that obedience to Orders of Courts is fundamental to the good order, peace and stability of the Nigerian nation. The ugly alternative is a painful recrudescence of triumph of brute force or anarchy, a resort to our old system of settlement by means of bow and arrows, machetes and guns or, now, even more sophisticated weapons of war. Disobedience to an order of Court should, therefore, be seen as an offence directed not against the personality of the Judge who made the Order, but as a calculated act of subversion of peace, law, and order in Nigeria society. Obedience to every Order of Court is therefore a duty which every citizen who believes in peace and stability of the Nigerian State owes to the nation. To allow Court orders to be disobeyed would be to tread the road toward anarchy. If orders of the Court can be treated with disrespect, the whole administration of justice is brought into scorn…If the remedies that the Court grants to correct wrongs can be ignored, then, there will be nothing left for each person but to take the law into his own hands. Loss of respect for the Court will quickly result in the destruction of our society”
To cap it all, the Constitution by its Section lucidly provides in the very words which I would now most respectfully reproduce;
“The decisions of the Federal High Court, the National Industrial Court, a High Court and of all other Courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other Courts of law with subordinate jurisdiction to that of the Federal High Court, the National Industrial Court, a High Court and those other Courts, respectively”
What patently emerges from the concatenation of the instances of executive impunity and lawlessness most dispassionately surveyed above comes to the ineluctable conclusion that the present Federal Government of Nigeria, which you are saddled with the onerous duty to offer sound legal advice, has most unfortunately fallen into the cesspit of tyranny, lawlessness and impunity. Most of its security agencies (especially) have pathetically constituted themselves into the sinkhole of constitutionalism, Rule of Law and sacred human rights of great Nigerian Citizens.
Sir, the case against you in all these well-carefully itemised instances of disobedience to Court Orders and Human Rights abuses by different State Actors, is that there is no evidence iota of on record that you have lifted a finger to intervene by advising the concerned agencies to uphold the dignity of our Constitution which the foundation of our society. No such recorded evidence exists anywhere and I challenge you to prove me wrong by producing one. What this comes to is that you are very comfortable that sit in your hallowed chambers and watch our Constitution thrown to the dogs and the dignity of our Courts basterdised. It equally means that you are very comfortable with the kind of decadent precedent that all these acts of outlawry and brigandage would [in their aggregate] foist on our future democracy. These summations are indeed unanswerable since finding otherwise would certainly amount to eyewash.

Given the nature and gravity of the issues under consideration, it becomes imperative to call to mind the salient observations most ably offered by a former Chief Justice of Nigeria [Atanda Fatai-Williams. CJN] in State v. Ilori, where he rightly stated;
“For all these reasons, it cannot be too strongly stressed that this pre-eminent position of the Attorney-General with respect to criminal proceedings in our Constitution carries with it grave and onerous responsibility which should not be discharged with levity. Because of this, it is of paramount importance that when an Attorney-General is being appointed, the appointor should, at all times, bear in mind the integrity, ability, experience, and maturity required of the person holding this high and important office. He should be a person who, in the discharge of his duties, will always “have regard to the public interest, the interest of justice, and to the need to prevent any abuse of legal process.”
Sir, as the tenure of the government you presently serve gradually winds up its activities, you may find it expedient to cast aside the seductive veils of political considerations and sentiments and approach the content of this letter with spirit of a patriot who should always stand ready to “defend his country against his government.” As for whatever backlash that might befall me for my courage to address you on this important issues of our realm, I take refuge in the protection of God Almighty who inspired the legendary Thomas Paine to declare that “if there must be trouble, let it be in my own day so that child may have peace.”. I find here a convenient place to stop.
Sir, do graciously accept the firm assurances of my highest regards.
Yours in preservation of democracy,
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