Under the
defunct military junta in Nigeria the Constitution was suspended while
fundamental rights were put in abeyance. To justify the detention of the
so called political extremists and other subversive elements the
Buhari/Idiagbon junta promulgated the State Security (Detention of
Persons) Decree no 2 of 1984. My colleagues and I in the human rights
community were regularly detained under the preventive detention
decree . But despite the draconian decree the courts never hesitated
to order the release of several persons whose detention was patently
illegal.
Ironically,
General Mohammadu Buhari was later detained by the Babangida junta
under Decree No 2 of 1984. During his visit to Edo State last week,
President Buhari recalled that he was incarcerated in Benin city for 2
years out of his 3-year incarceration. But upon the restoration of
civil rule in May 1999 Decree 2 and other obnoxious decrees and edicts
were repealed. In addition, section 35 of the Constitution has
guaranteed the fundamental right to personal liberty. Thus, every person
who is arrested and detained by the police or any security agency
shall be arraigned in court within 24 or 48 hours as the case may be. If
for any reason the detainee is not arraigned in court within the
stipulated time the detaining authority shall grant bail or obtain a
remand order from a Magistrate court pursuant to section 293 of the ACJA
2015.
When the residence of Col. Sambo Dasuki (rtd) was searched
by the State Security Service last year he accused the Federal
Government of the breach of his human rights to personal liberty. Since
the search was conducted based on a warrant issued by a Magistrate in
the Federal Capital Territory I pointed out that the Federal Government
had acted within the ambit of the rule of law. Subsequently, he was
charged with illegal possession of firearms at the Federal High Court
and money laundering offences at the High Court of the Federal Capital
Territory. Notwithstanding the gravity of the charges Col. Dasuki was
admitted to bail by the three trial courts.
Upon his
fulfilling the bail conditions on December 29 last year the authorities
of Kuje prisons released him. However, before stepping out of the
precints of the prison he was immediately rearrested by the State
Security Service. Convinced that the fresh arrest could not be justified
under the Nigerian Constitution I advised the Federal Government to
comply with the orders admitting the suspect to bail pending his trial. I
equally cautioned against playing into the hands of any of the criminal
suspects standing trial for alleged criminal diversion of public
funds. For reasons best known to the Federal Government the demand for
Col. Dasuki's release was ignored. Since then the suspect has taken
advantage of his illegal incarceration to frustrate his criminal trial
by alleging denial of access to his defence counsel.
It was at that
juncture that Col. Dasuki was compelled to approach the Court of
Justice of the Economic Community of West African States, otherwise
called "the Ecowas Court" to secure the enforcement of his human rights
to personal liberty guaranteed by article 6 of the African Charter on
Human and Peoples Rights. In its defence the federal government
characteristically challenged the jurisdictional competence of the
Ecowas Court to hear and determine the suit. The preliminary objection
was dismissed. With respect to the substantive relief, the Ecowas Court
held that the detention of Col. Dasuki without a court order could not
be justified under the Nigerian Constitution and the African Charter on
Human and Peoples Rights. Consequently, the court ordered the release
of the applicant and payment of N15 million damages to him as
reparation for the infringement of his human rights.
In reporting the
judgment of the Ecowas court the media conveyed the impression that
that the federal government has been ordered to release the plaintiff
unconditionally from further detention. Contrary to such misleading
impression the Ecowas Court has not discharged and acquitted Col.
Dasuki in respect of the criminal charges pending against him in the
Nigerian courts. All that the court said was that the suspect be
allowed to enjoy his human right to liberty within the context of the
bail granted him by the trial courts. In particular, the Federal
Government was berated for treating the orders of its own courts with
contempt.
Having loudly
proclaimed to operate under the rule of law Nigeria cannot afford to
ignore the order of the Ecowas Court . Indeed, as a leading member state
of the Ecowas the Nigerian Government must continue to demonstrate
leadership by example. More so that it was federal government which
persuaded the former military dictators in Niger Republic to to
release ex-President Mammoud Tandja from custody in line with the order
of the Ecowas Court . Therefore, President Buhari should direct the
SSS to comply with the order of the Ecowas Court by releasing Col.
Dasuki (rtd) on bail without any further delay .
Having failed
to halt the violations of the human rights of the Nigerian people the
United States government has banned the Buhari administration from
purchasing war planes to prosecute the war on terror. A similar ban
under the Jonathan administration prolonged the war on terror. While the
ban may be questioned in view of the global fight against terrorism the
federal government should release all political detainees from custody
and stop the police and other security agencies from infringing on
the human rights of the Nigerian people .
Femi FalanaHuman Rights Lawyer
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