Abuja — ... insist his action belated, face-saving
Senior legal practitioners in the country, on Friday, described the directive the Attorney General of the Federation and Minister of Justice, Mr Abubakar Malami, SAN, gave to the Department of State Service, DSS, to hand-off the prosecution of detained pro-democracy activist and convener of RevolutionNow Protest, Omoyele Sowore, as belated and face-saving.
In separate interviews, lawyers and human rights activists that spoke with Vanguard, decried that the AGF decided to call for Sowore's case-file from the secret service after the image of the country and the sanctity of the judiciary have been badly battered before the international community.
They insisted that Malami, being the Chief Law Officer of the federation, could not feign ignorance of the conduct and steps the DSS took with respect to Sowore's trial and subsequent re-arrest at the premises of the Federal High Court in Abuja last week Friday.
The AGF had in a statement that was made available to newsmen by his media aide, Dr Umar Gwandu, on Friday, said he directed the security agency to forward the case-file in respect of the charge pending against Sowore in court, to his office.
ICYMI: AGF Malami orders DSS to hands-off Sowore's trial, takes over case-file
He equally directed the Federal Ministry of Justice to immediately takeover the prosecution of all charges against Sowore, in line with the provisions of Sections 150(1) and 174 (1) (a-c) of the 1999 Constitution (as amended).
Malami said the Federal Government was committed to respecting the sanctity of the rule of law, protecting the virtues of human rights and ensuring speedy dispensation of justice in the matter.
"As part of deliberate efforts to probe emerging issues related to the recent imbroglio related to Omoyele Sowore's case and for speedy dispensation of justice, the Attorney-General and Minister of Justice has requested that the case file in respect of charge pending before the Federal High Court, Abuja be forwarded to his office".
In the statement, Dr Gwandu said the request for the transfer of the case to the office of the AGF was contained in a letter dated December 11, 2019 and addressed to the Director-General of the DSS, National Headquarters, Abuja.
The Solicitor General of the Federation and the Permanent Secretary, Federal Ministry of Justice, Dayo Apata, SAN, who signed the letter, referred to an initial letter the DSS wrote to the AGF on September 9, 2019.
According to the statement, Apata's letter to the secret service, read: "The Honourable Attorney-General of the Federation and Minister of Justice upon a further review of the case has directed the immediate takeover of the prosecution of all charges in respect of Omoyole Sowore by the Federal Ministry of Justice in line with the provisions of Sections 150(1) and 174 (1) (a-c) of the 1999 Constitution (as amended)".
It said the letter requested the DSS DG to "promptly forward all the case files" in respect of Omoyele Sowore to the office of the AGF and Minister of Justice.
Reacting to the development, a Senior Advocate of Nigeria, Mohammed Abeny, SAN, said: "The action of the AGF is simply for face-saving. It is coming after the damage has been done both to the image of the country which has been portrayed as a lawless country, the damage to the psyche of human rights practitioners, and the desecration of our courts which cannot be restored.
"Whatever he does now cannot offset or abrogate the damage suffered by the judiciary or the one suffered by the country's image in terms of its compliance with human rights. In the eye of the international community, we are seen as a pariah state.
"This is a face-saving devise which he may now use to ask them to release Sowore from DSS custody and then, probably file fresh charges against him if at all they have any charge against him, and subsequently grant him bail.
"The least the AGF can do, which in any way would not redeem the country's damaged image and the damaged image of the judiciary, is to withdraw the charge.
"Like I said, his calling for the case-file is a face-saving devise, Nigeria having been on the slaughter table of the whole world and we now look like a pariah state. Our image in terms of complying with rule of law, respect for the sanctity of the judiciary and respect for human rights have been damaged as far as Nigeria is concerned.
"Ordinarily, the AGF ought to be in charge of that case and he is the one to control the prosecution on whether Sowore should be charged to court or not. But because Nigeria is now fully under an autocratic regime, like the military, such was not done.
"Nigeria is now in a worst state than under the military regime. There is nothing they will do now to redeem or repair the damage done to the judiciary or to observers of human rights in Nigeria. The message has already been passed that we have no regard for human rights or the rule of law. Even if Sowore is released today, can you now say that he was not arrested in the courtroom? That is already in the history books.
"The DSS arrested Sowore in the courtroom by force, in disregard to the order of the court. So whatever they are doing now is a face-saving devise that do not remedy the damage done to the judiciary and the rule of law. We cannot all keep quiet and be watching, it is becoming too much".
Another SAN, Mr Dayo Akinlaja, said: "It is to me a very welcome decision. The AGF has the power and prerogative under the Constitution (S. 211(b) to take over the prosecution. Having regards to the incident that happened in court of late, it is rather expedient that the AGF take over the matter to give some level of fairness and credibility to the prosecution.
"In my humble view, it is a way of reassuring the judiciary that the assault that took place in court is not sanctioned by the government and that efforts are being put in place to avoid an encore of it".
According to an activist and convener, Coalition in Defence of Nigerian Democracy and Constitution, Mr. Ariyo-Dare Atoye: "In the face of the mounting global agitation for the release of Omoyele Sowore and the reckless affront demonstrated by the SSS against the judiciary, the decision of the AGF to take over the case is both ideal and face-saving.
"Ideal in the sense that it should not have been the responsibility of the secret police in the first place to prosecute anyone irrespective of the alleged crimes. Unfortunately, the AGF has consistently abdicated his responsibilities while indulging different coercive agencies of government to do as they like.
"It is equally a face-saving action because the AGF was not unaware of the excesses of the SSS in the Sowore's case ab initio. It is a late attempt at salvaging an already damaged reputation of a lawless regime which has no respect for the rule of law and human rights. While shamelessly grandstanding, they are also worried over the rising national and international condemnation of their undemocratic actions.
"We shall, however, give the AGF a benefit of doubt, even though his commitment to justice is suspect in this matter because his previous comment over Sowore in a BCC Programme was judgemental and not encouraging. In addition, we shall also expect the AGF to now fully investigate the SSS and ensure that as many Nigerians who are languishing in its dungeons and underground facilities are appropriately tried and given the window of justice to defend themselves".
Former legal adviser of the Labour Party, Dr. Kayode Ajulo said: "The AGF is the Chief Law Officer of the Federation. Under him he has Legal Director of Public Prosecution, sometimes he can give others Fiat largely because he needs to allow some agencies, but overall, he is the supremo-commando of anything law in Nigeria.
"So there is nothing wrong if he has called for the case-file. Kudos should be given to the federal government and to the AGF for such move. Section 147 and 150 of the Constitution has already spelt out the duties and job of that office. AGF is the only one that swore that he would uphold the law. So we should expect that justice should be done.
"I want to believe that any AGF that is worth his salt, having taken over the case, the first thing he should do would be to review the file and call all his officers to seek a sound legal opinion before taking any further step. If at the end of the day he decided that the case should continue, then it would continue. But if he decides that it should not continue, he has the power to enter Nolle prosequi and withdraw the charge".
On his part, an Abuja based constitutional lawyer, Mr Johnmary Jideobi, said: "We must recognise that constitutionally, the Honourable Attorney-General of the Federation is the fountain from which all prosecutorial powers of the Federal Government flows. In other words, all agencies or authorities of the Federal Government of Nigeria, imbued by their statute with prosecutorial powers, are not only answerable to but also amenable, in the exercise of their prosecutorial powers, to the pervading authority and prosecutorial control and supervision of the Honourable Attorney-General of the Federation.
"It, therefore, bears no repetition that the request of the Honourable Attorney-General of the Federation on the State Security Service is well within his province and enjoys the warm embrace of our Constitution which is the organic and supreme law of the land.
"It is in recognition of this immense constitutional powers and control of the Honourable Attorney-General of the Federation that I have, in the past, written him open letters calling on him to ensure unquestionable compliance with the dictates of the Rule of Law by Security Agencies of the Federal Government in the exercise of their statutory duties.
"We must salute his courage to have taken this bold step and it is important that all those who mean well for our system encourage him so as to strengthen his hands in taking more concrete steps in ensuring that the Government of the day observes religiously the prescriptions of Rule of Law, upholds the sanctity of Court orders especially as it relates to liberty of citizens and human rights generally in the conduct of government business for the enthronement of a just and egalitarian society where everybody is safe regardless of who is at the helm of affairs.
"Our laws can only keep us if we keep our laws and our democracy can only preserve us if we preserve our democracy. It is better late than never".
Likewise, another constitutional lawyer and human rights activist, Chief Nkereuwem Udofia Akpan, said: "The law is that the Attorney General of the Federation is vested the powered to commence, takeover or discontinue the trial of any person for any offence in any court in the Federal Republic of Nigeria.
"This is the proper and indeed the only plausible and or reasonable construction of the extant and sacrosanct provisions of section 174(1) of the 1999 Constitution of the Federal Republic of Nigeria (as altered).
"Now having said that, it must be remembered that these enormous powers vested in the learned Attorney General of the Federation and Minister of justice is by no means unfettered and or without limits. This is so because section 174(3) of the 1999 Constitution clearly defined the limited when the framers of our Constitution provides as follow: "(3) in exercising his powers under this section, the Attorney General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent a use of legal process".
"The courts have interpreted this provision as according to his lordship the honourable Justice G. O. Kolawole (Now JCA) in suit number FHC/ABJ/CS/968/2011 Chief Nkereuwem Udofia Akpan v Mohammed Bello Adoke (SAN) and Attorney General of the Federation that in the exercise of the powers conferred on the Attorney General of the Federation by section 174(1)(b) the 1999 Constitution of the Federal Republic of Nigeria 1999, the learned Attorney General of the Federation shall comply strictly with the extant provision of s 174(3) thereof.
"The question then will be is the action of the learned Attorney General of the Federation in taking over the case of Sowore in compliance with the interpretation given by the courts to the provisions of sections 174(1)(b) and 174(3) of the Constitution?".
Sowore, who was the presidential candidate of African Action Congress, AAC, in the last general election and publisher of an online news outlet, and his co-defendant, Olawale Bakare (aka Mandate), are answering to a seven-count treasonable felony charge.
They were in the charge marked FHC/ ABJ/CR/235/2019, accused of conspiracy, money laundering, cyber-stalking and insulting President Buhari.
Though the defendants perfected all the conditions the court gave for their bail, the DSS declined to release them, claiming that no surety came forward to receive them.
Following a 24 hours ultimatum trial Justice Ijeoma Ojukwu issued for their release, DSS, temporarily freed them from detention last week Thursday.
The agency subsequently re-arrested Sowore the next day within the court premises after his trial was adjourned till February 11, 2020.
Circumstances that surrounded the manner in which he was re-arrested, which involved the invasion of the courtroom by alleged operatives of the DSS, has continued to attract condemnation for the security agency.
Though DSS claimed that its officers were not involved in the court invasion saga, insisting that they waited and arrested Sowore outside the court premises, however, counsel to the defendants, Mr. Femi Falana, SAN, insisted that the agency was involved.
Malami earlier disclosed that the Federal Government had commenced its investigation into the matter.
Similarly, the Body of Senior Advocates of Nigeria, on Thursday, called for the setting up of an Independent Judicial Commission of Enquiry to unravel those behind the courtroom invasion.
Sowore was arrested on August 2 in Lagos and later transferred to Abuja for prosecution, after he called for a nationwide protest against perceived maladministration by the President Buhari-led government.
Despite his arrest, the protest held in various parts of the country on August 5, with security operatives clamping down on some of the participants