(Being the paper presented at the 2019 Human Rights Day symposium organised by the Nigerian Bar Association (Ikeja Branch) on December 10, 2019).
At the 30th anniversary ceremony of the Committee for the Defence of Human Rights which held in Lagos in May this year, I was compelled to express regret over the proclivity of the elected Buhari administration to disobey orders of courts. The embarrassing development is an irony because the dreaded Buhari military junta had complied with all orders of Nigerian courts for the release of political detainees and criminal suspects from custody. A respected colleague in the human rights community had questioned my historicity. I pointed out that apart from handling fundamental rights cases for some political detainees at the material time I was personally incarcerated without trial under the obnoxious State Security (Detention of Persons) Decree No. 2 of 1984 by the Buhari military regime. Hence, I am in a vantage position to speak authoritatively on a regime whose human rights record was despicable.
Suspension of the Constitution by military dictators
In January 1966, the Constitution was suspended while fundamental rights were put in abeyance by the military junta which sacked the Tafawa Balewa administration. To justify the detention of citizens without trial the Aguiyi Ironsi regime issued individual detention orders for detainees. But the Yakubu Gowon regime discarded the practice and promulgated the State Security (Detention of Persons) Decree No 24 of 1967. The Decree was grossly abused as critics like Wole Soyinka, Gani Fawehinmi, Tai Solarin, Aper Aku, Air Iyare etc were detained without trial. Despite the fact that the country was under the jackboots the courts never hesitated to order the release of several persons whose detention was found to be patently illegal.
The locus classicus during the era was the case of Agbaje v Commissioner of Police (1967) NMLR 65 wherein Akinola Aguda J. (as he then was) struck down the detention order and released the applicant, who was then the lawyer of the Agbekoya farmers in the Western state. The judgment was upheld by the Western State Court of Appeal which commended the trial judge for treating the matter with admirable dispatch and exceptional courage. While the Murtala Mohammed regime never detained any person under the preventive detention decree the Olusegun Obasanjo regime invoked it to detain some progressive lecturers, student leaders, trade unionists and other critics of his regime. But following the termination of military rule in 1979 the fundamental rights of citizens were restored. Consequently, the courts regularly ordered the release of citizens who were detained illegally and awarded damages to them in deserving cases.
State Security (Detention of Persons) Decree No 2 of 1984
Sequel to the coup d’e tat led by Major-General Muhammadu Buhari which sacked the elected Shehu Shagari administration in December 1983, the Constitution of the Federal Republic of Nigeria, 1979 was suspended and replaced with the Constitution Supremacy Decree No 1 of 1984. As the fundamental rights of Nigerian citizens were suspended the junta embarked on indiscriminate arrest and detention of politicians, activists, journalists and many other citizens without trial. The State Security (Detention of Persons) Decree No 2 of 1984 was promulgated by General Buhari to authorise the detention of anyone who was alleged to have contributed to the economic adversity of the nation or who was concerned in acts prejudicial to State Security or in preparation or instigation of such acts. The Decree effectively ousted the jurisdiction of the courts.
For the avoidance of doubt, Section 4 (1) of the Decree provided that “No suit or other legal proceedings shall lie against any persons for anything done or intended to be done in pursuance to this Decree.” Under the authoritarian regime the law was subjected to uncontrolled abuse by the notorious National Security Organisation and other security agencies. Indeed, some detainees who were classified as extremists were locked up in harsh conditions in the mosquito infested Ita Oko secret prison, in the swamps of Lekki Lagoon, cut out of the dense jungle that engulfs Lagos. Detainees were dropped in the dungeon either by boat or helicopter.
Compliance with court orders for release of political detainees
However, notwithstanding the ouster of the jurisdiction of the courts, the legal validity of many detention orders was successfully challenged in the various high courts. As the seat of power was then in Dodan barracks in Lagos, majority of the habeas corpus or fundamental rights cases were filed in the Lagos high court. To the eternal credit of the judiciary the judges who handled the cases decided them without fear or favour. Even though a substantial number of the cases were dismissed for want of jurisdiction the courts did not hesitate to order the absolute or conditional release of detainees whose arrest and incarceration could not be accounted for under the preventive detention legislation. Thus, under the Buhari junta the Lagos high court quashed the detention orders signed under Decree No 2 in the following cases:
- In Lamina Lawal Arowoye & 6 Others v. Inspector-General of Police (Suit No: ID/14M/84), the Applicants were arrested and detained at the Ita Oko secret prison pursuant to the State Security (Detention of Persons) Decree No 2. In the judgment delivered by Wale Oshodi J. on 6/4/1984 the detention of the applicants was declared illegal, null and void on the grounds that that “Decree No. 2 of 1984 provides that the detainees must be concerned in acts prejudicial to State Security or in preparation or instigation of such acts. But the purported Orders Exhibit ‘A’ to ‘G’ stated that the detainees were detained for acts prejudicial to public order”.
- In Chief Sunday Ogunyade v. The Inspector-General of Police & 2 Ors. (Suit No: ID/15D/84) the Applicant was detained at the Ita Oko secret prison. In the judgment delivered on 11/5/84, G.O. Obadina J. (as he then was) ordered that the Applicant be discharged and released from detention forthwith on the grounds that “the signature on the Order, Exhibit ‘A’ is in a photocopy. The Order was not certified as required by Section 110 (1) of the Evidence Act that it is a true copy of the Order made by the Chief of Staff, Supreme Headquarters. In the circumstance, one cannot resist having a doubt as to whether the Chief of Staff knew anything about the detention. Doubts of this nature should not feature in a matter that affect the liberty of a citizen. I am therefore of the view that the Order, Exhibit ‘A’ is thoroughly defective on its face and I therefore declare that it is illegal, null and void and of no effect”.
- In Maxwell Okudoh v. Commissioner of Police, Lagos State Police Command (Suit No: M/32/84) the Applicant was detained at Mushin Police Station in Lagos under Decree 2 of 1984. In his judgment delivered on 30/4/1984 G.O. Oguntade J. (as he then was) held that “It is clear that under the above section 1(1) of Decree No. 2 of 1984 that the Chief of Staff Supreme Headquarters can only detain a person for four reasons In this case, the Chief of Staff has detained for acts prejudicial to public order. Can he do so? I answer that question in the negative. In consequence of the above pronouncements I hereby order that the applicant, Maxwell Okudoh shall be discharged and released forthwith by the Respondent or whosoever is holding him in custody and such persons shall for the avoidance of doubt include the Chief of Staff, Supreme Headquarters.”
- In Dr. Tai Solarin v. Inspector-General of Police & 2 Ors. (Suit No: M/55/1984) the Applicant who had called for a 6-month tenure for the Buhari junta was arrested in Lagos and detained at the Abeokuta prison. In the judgment delivered on 19/4/1984, Candide Ademola Johnson J. (as he then was) held that “the respondents have failed to discharge the onus placed on them to establish the legal justification for the detention of the Applicant. On the conclusion which the court has reached on the materials and arguments before it, the contention of the respondents’ detention is lawful cannot be sustained. The applicant is therefore entitled to his liberty. I therefore order the immediate release of the applicant and order that a formal return be rendered to the writ issued on or before the 26th day of April, 1984 by the respondent.”
- In Chief Fredrick Okafor v. Commissioner of Police & Anor. (Suit No: ID/55M/85) the Applicant was detained by the Criminal Investigation Department of the Police in Lagos under the Special Tribunal (Miscellaneous Offences) Decree No. 20 of 1984. In the judgment delivered on 17/5/85, E.A. Hotonu J. held: “The alleged offence for which the applicant is kept in custody is indeed a serious one as it is punishable with death if proved. In the cautionary statement made to the police Exhibit ‘A’ the applicant explained that he was the Managing Director of a Company selling and servicing motor vehicles… I think it will be in the interest of justice to release the applicant on bail. The applicant, Chief Fredrick Okafor is hereby granted bail in the sum of N10,000.00 with surety in the same amount. The surety who should be residing within the jurisdiction of this court must be approved by the Deputy Chief Registrar.”
- In Adegoke Ajayi v. Inspector-General of Police & Anor (Suit No: ID/143M/84) the Applicant was detained by the police in Lagos under the Counterfeit Currency (Special Provisions) Decree No. 22 of 1984. In the ruling delivered on 30/11/84, E.A. Hotonou J. held: “The facts before the Court show clearly that it is not now certain if that applicant committed the offence for which he is kept in custody. The bank notes linking him with the offence have not been proved to be counterfeit. In the circumstances I think he should be granted bail. The applicant, Adegoke Ajayi, is granted bail in the sum of N25,000.00 with two sureties in the same amount the sureties who should be land owners within the jurisdiction of this court must be approved by the Deputy Chief Registrar…”
Court of Appeal ordered courts to blow muted trumpets
However, in Wang Ching-Yao & 4 Ors (Suit No: CA/L/25/85), the Court of Appeal attempted to stop the high courts from subjecting Decree No 2 to judicial scrutiny. In that case, the applicants who were Taiwanese nationals were detained at the Kirikiri Maximum Security Prisons, Apapa Lagos under Decree No. 2 of 1984. They approached the federal high court to secure their release from prison custody. In the ruling delivered by the Federal High Court presided over by Fred Anyaegbunam C.J. the application seeking the release of the detainees was dismissed for want of jurisdiction. Completely dissatisfied with the decision the detainees filed an appeal at the Court of Appeal.
In dismissing the appeal and affirming the decision of the Federal High Court, the Court of Appeal (per Adenekan Ademola JCA) held that “on the question of civil liberties, the law courts of Nigeria must as of now blow muted trumpets.” Regrettably, the applicants rejected the suggestion of their counsel, Olisa Agbakoba Esq. to challenge the judgment at the Supreme Court. It is however worthy to note that the Lagos high court ignored the reactionary judgment of the Court of Appeal in Wing Ching Yao’s case and continued to release detainees whose detention could not be justified under Decree No 2 in line with the judgment of the Western State Court of Appeal in Commissioner of Police v Agbaje (1969) NMLR 124.
It is on record that even though the courts upheld the detention of many detainees held under the Decree the 13 applicants in the aforementioned cases were released by the Buhari junta in strict compliance with the orders of the Lagos High Court. Despite the pressures mounted on the junta by the NSO and some members of the ruling Supreme Military Council not to release some of the detainees, General Buhari decided to listen to the legal advice of his Attorney-General and Minister of Justice, the late Chike Offodile SAN who insisted that all court orders had to be obeyed.
My arrest outside the premises of the court
On July 10, 1985, I appeared before Onalaja J. (as he then was) to argue an application for the enforcement of the right of a detainee. Upon the conclusion of the case I drove out of the court premises. About 200 metres away from the court house my car was blocked in the middle of the road. Before I could challenge the reckless driver I was surrounded by about 6 people who brandished the identity cards of the NSO. I was told that I was under arrest. From there I was led to a detention centre at No 15, Awolowo Road, Ikoyi, Lagos. It was while I was in custody that I was shown my detention order under Decree No 2. During my interrogation I was informed by the head of the team of investigators that those who arrested me had taken positions in the court premises since 5 am and that they had strict instructions not to execute the warrant of my arrest in the court premises.
The late radical lawyer, Mr. Kanmi Isola-Osobu had led me in defending Fela Anikulapo-Kuti before the special military tribunal where he was charged with illegal possession of the sum of $1,400 which was part of the money he had earned from a previous musical concert in the United Kingdom. He was convicted and jailed. Thereafter, a global campaign was launched in London for the release of the convict form prison custody. The reason for my illegal detention was that the NSO believed that I was responsible for the international campaign. Even though I knew nothing about the campaign I was detained until the Buhari regime was sacked on August 28, 1985 in a palace coup led by the then Chief of Army Staff, General Ibrahim Babangida.
Decree 2 after Buhari’s removal from power
In order to justify the removal of the Buhari junta from power the many people who were held in the several detention camps across the country by the NSO were released. Even though I was one of the detainees who had regained their liberty I was not deceived in by the hypocrisy of the Babangida junta. Hence, I asked the Chairman of the Special Task Force, Mr. Jamaita Gambo, who was then a Deputy Inspector-General why the obnoxious detention decree was not repealed. Mr. Gambo did not hesitate to tell me that “no military regime can survive without a preventive detention decree.” The deposed General Buhari and his deputy, General Tunde Idiagbon, were the first set of detainees under the Babangida junta.
Since the deposed Generals had recklessly used the decree to detain many people without any legal basis no one was prepared to challenge their detention. Even though I was illegally detained by the Buhari junta, I was able to persuade my colleagues in the human rights community to demand for the release or trial of both Generals. We intervened and our campaign eventually led to their release after three years of detention. The decree and other obnoxious decrees were enacted by the regimes of Generals Babangida and Sani Abacha to detain hundreds of people. Some of my comrades and I were incarcerated for months by both dictators. Apart from Chief M.K.O Abiola the Abdulsalami Abubakar regime did not use the decree to detain people.
Repeal of Decree No 2 and other anti democratic laws
At the end of military rule in May 1999, Decree No 2 and other anti democratic decrees were repealed to pave was for civil rule. Thus, by virtue of section 35 of the 1999 Constitution of Nigeria the fundamental right of every person to personal liberty is guaranteed and no citizen or alien may be arrested and detained without reasonable suspicion of having committed a criminal offence. Where a criminal suspect is going to be detained beyond 48 hours the detaining authority is required to seek and obtain a remand order from a Magistrate Court under ACJA. Any person detained illegally is entitled to file an application for his/her release in the appropriate high court. The order of a court for the release of any detainee from custody shall be complied with in accordance with section 287 of the Constitution.
But due to lack of understanding of the essence of the rule of law under a democratic government, successive civilian regimes have disobeyed court orders. In particular, orders of courts for the reinstatement of sacked public officers and for the release of several detainees have been disobeyed by security agencies. The monetary damages awarded as reparation to detainees for the infringements of their fundamental rights have not been paid by any of the agencies of the federal government due to refusal of the Attorney-General of the Federation to authorize such payment. The Olusegun Obasanjo even went to the extent of ignoring the order of the Supreme Court for the release of seized statutory allocations belonging to the Lagos state local governments. It was his successor, President Umoru Yaradua who purged the federal government of contempt by ordering the release of the seized fund.
Justification for disobedience of court orders
On July 9, 2018 the Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami SAN shocked lawyers in all common law countries when he stated publicly that the government would not obey the orders of courts which had admitted Col Sambo Dasuki to bail. According to him, “If the issue about an individual coincides with that which affects the people of a nation and you are now saying the government did not obey a court order that infringes on a single person’s rights. Remember we are talking about a person who was instrumental to the deaths of over 100,000 people. Are you saying that the right of one person is more important than that of 100,000 who lost their lives?” (BBC Hausa Service, Voice of America, July 19, 2018).
In other fora, Mr. Malami SAN has justified the refusal of the federal government to comply with court orders for the release of Sheikh Ibraheem Elzakzaky and his wife, Zainat Elzakzaky from illegal detention under the pretext of defending national security. Since the NBA did not call the AGF to order the federal government has since adopted his reactionary position. Thus, at the 2018 Annual Conference of the Nigerian Bar Association held in Abuja, President Buhari threw his weight behind the misleading view of his Justice Minister when he said to a gathering of Nigerian lawyers that national security should take precedence over the rule of law.
Curiously, the President cited the case of Asari Dokubo v FRN (2007) WRN 1 to justify disobedience of court orders by his administration. No doubt, the Supreme Court had clearly stated in that case that the interest of the majority supersedes that of an individual. But the case is not a judicial authority for the defiance of court orders. The President may wish to request the Justice Minister to refer to any portion of the judgment or any decision of a Nigerian court or any court from any common law country which has ever justified the power of the executive to disregard court orders in defence of national security. With respect, the stand of the Buhari administration cannot be justified as our experience has shown that the security of the government in power cannot always be equated with the security of the nation.
Hence, the judiciary and not the executive has been exclusively tasked with the responsibility to protect national security within the ambit of the rule of law. In Agbaje v Commissioner of Police (supra) it was held: “… it is clear that in the process the Courts have a vital role to play- in fact it is partly for the resolution of such conflicts that the Courts of the land have been established. If the resolution of such a conflict is left in the hands of any arm of the executive as in this case where the power to put a citizen in custody for no proved offence is left at the discretion of the Inspector General of Police by an Act of the legislative body, then the role of the Courts to perform is to make sure that that the Inspector General of Police confirmed strictly with the enabling legislation.”
Apart from treating the orders of Nigerian courts with total contempt, the federal government has also ignored the orders of the Community Court of Justice with respect to the restoration of the civil liberties of Nigerian citizens. It is regrettable to note that since President Buhari openly defended such brazen contempt of court last year the State Security Service and other security agencies have been emboldened in treating court orders for the release of political detainees and criminal suspects with disdain. Unknown to Nigerians the recent violent invasion of federal high court by armed SSS operatives was a crude protest against the ultimatum given by Justice Ifeoma Ojukwu for the release of Mr. Omoyele Sowore. Before then the security agency had threatened to report Justice Taiwo Taiwo for granting bail to Sowore.
Apparently embarrassed by the armed invasion of the federal high court by the operatives of the SSS the Attorney-General, Mr. Abubakar Malami SAN announced last week that he had taken over the prosecution of the case and that the federal government would probe the incident. But Mr. Malami has turned round to say that he could not compel the security agency to comply with the orders of the federal high court for the release of Mr. Sowore on bail. The statement has clearly failed to take cognizance of the case of the State v Ilori (1983) JELR 51804 (SC) where the Supreme Court held that once an Attorney-General takes over a pending criminal case under section 193 of the 1979 Constitution ( which is in pari materia with section 174 of the 1999 Constitution) he “possesses the constitutional powers in full and the responsibility for any decision thereupon rests solely on him.” Having taken over the case Mr. Malami cannot be permitted to allow the SSS to continue to flout the order of the federal high court.
No doubt, military dictators felt dissatisfied with court decisions which challenged their authority and set aside some of their actions and policies. But they never justified disobedience of court orders. As we have pointed out the Buhari military regime junta complied with all court orders based on legal advice from his Attorney-General. By a twist of irony, President Buhari who claims to be a “converted democrat” has openly justified disobedience of court orders under the pretext of protecting national security. However, since the executive has no powers to set aside the decisions of courts the federal government ought to halt the subversion of the rule of law.
No a few lawyers believe that the best way to fight disobedience of court orders and other manifestations of the subversion of the rule of law is for lawyers to boycott courts. With respect, our experience has shown that dictators and fascists are not moved by boycott of courts by lawyers of judicial staff. As far as I am concerned, judges and lawyers can successfully fight for the rule of law without abandoning the courts. Judges should be encouraged to exercise their inherent and statutory powers to enforce their judgments and deal with all acts of contempt of court. This was very effective in the past as public officers did not want to be convicted of contempt as it could terminate their carrier. On its own part, the Nigerian Bar Association should discipline Attorneys-General and other lawyers who encourage governments to disobey court orders or who fail to comply with court orders.