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
decrees. But despite the draconian decree the courts never hesitated to
order the release of several persons whose detention was patently
illegal.
Ironically, General Muhammadu 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repealed.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 precincts of the prison he was
immediately rearrested by the State Security Service, the secret police.
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 Falana is a senior advocate of
Nigeria who tends to defend the human rights abuses of the Muhammadu
Buhari regime. He became famous for his human rights activism against
military regimes in the 80s and 90s.
The opinions expressed in this article are solely those of the author.
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