The leadership of International Society for Civil Liberties & the Rule of Law (Intersociety); supported by other ten members of the Southeast based Coalition of Human Rights Organizations (SBCHROs) have dragged Hon Justice Adeniyi Ademola of Court Six of the Federal High Court, Abuja Division to the National Judicial Council (NJC) through its chairman, Hon Justice Mahmud Mohammed (CJN); over his unsatisfactory and unconstitutional roles in consideration and issuance of a highly controversial and unconstitutional order for perpetual detention of Citizen Nnamdi Kanu in the guise of “investigating him for offenses of terrorism and terrorism financing”. We also wrote the Attorney General of the Federation & Minister for Justice, Mallam Abubakar Malami, SAN, drawing his immediate attention to the gross inconsistency of Section 27 (1) of the Terrorism Prevention Act of 2011 as amended; with Section 35 (4) (a) (b) of the 1999 Constitution of the Federal Republic of Nigeria, under right to personal liberty; for the purpose of sending an executive bill to the National Assembly for immediate repealing or expunging of the unconstitutional provision in the said Terror Act of 2011 as amended.
Our writing the duo of the NJC and the AGF is in recognition of powers and functions accorded them by the 1999 Constitution. We had in the letter, dated 13th of December 2015 and referenced: Intersociety/NG/12/015/002/NJC/AGF/FGN, drawn their attention to relevant Sections of the 1999 Constitution; upon which the gross inconsistency of Section 27 (1) of the Terrorism Prevention Act and the controversial court detention order were found brazenly and rapaciously unconstitutional or grossly incoherent with the 1999 Constitution. Some of the Constitutional provisions under reference are Section 1 (1) that states “this Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria”; Section 1 (3): “if any other law is inconsistent with the provisions of this Constitution, the Constitution shall prevail and that other law shall to the extent of the inconsistency be void”.
Others are Section 4 (5) of the same Constitution that directs: “if any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail and that other law shall to the extent of the inconsistency be void”. Further references were made to the Supreme Court of Nigeria’s landmark judgment in Abacha and Others v Fawehinmi (2001) AHRLR 172 (NgSC 2000); which ruled that “the African Charter on Human & Peoples Rights (ACHPR) is domestically enforceable, with its status higher than any ordinary legislation in Nigeria, but lower than the Constitution.
We further informed that the simple meaning of the citations above is that the 1999 Constitution is above and superior to all other laws of the land; followed by the African Charter on Human & Peoples Rights (in dealing with the citizens’ rights in the course of execution or enforcement of State policies and actions)”. That the laws (Acts) enacted or deemed to have been enacted by the National Assembly of Nigeria as well as the laws made by the Houses of Assembly of States are all inferior to the Constitution and the African Charter on Human & Peoples Rights. In other words, in the event of conflict between the Constitution and any Act of the National Assembly or any of its provisions; the Constitution prevails; and in the event of any conflict between the African Charter on Human Rights & Peoples Rights (signed, ratified and domesticated by Nigeria in 1983) and any Act of the National Assembly; the African Charter prevails. Also in the event of any conflict between any Act of the National Assembly and a Law of a State, the Act of the National Assembly prevails.
We reminded the NJC and the AGF that every Judge in Nigeria is mandatorily kitted with three bibles of fundamental legal knowledge of: (a) rule of law and its two cardinal pillars of audi altarem partem (listen to or hear the other side) and nemo judex in causa sua (refrain from being a judge in your own case); (b) the 1999 Constitution; and (c) the Fundamental Human Rights Chapter in the Constitution and the African Charter on Human & Peoples Rights. That these three bibles of fundamental legal knowledge or three weapons of a Bencher also defy mental senility; and that the three weapons of a Bencher also serve as his or her daily chewing stick or tooth brush; to be used and applied at all times and in all adjudicative circumstances. They were reminded as well that a Judge of the Federal or State High Court is also mandatorily under the judicial oath and the oath of constitutional allegiance; as contained in the Seventh Schedule of the 1999 Constitution.
On the issue of accusation leveled against Citizen Nnamdi Kanu and his IPOB of their involvement in acts of terrorism and terrorism financing, we frowned at such bogus criminal accusation against political citizens expressing their political thoughts peacefully and non violently. We further reminded the NJC and the AGF of dangers of frivolously labeling citizens as terrorists and terrorism financiers; outside the spirit and letters of the Terrorism Prevention Act of 2011 as amended; which is punishable upon judicial conviction with death penalty and life imprisonment; as well as life imprisonment for offenses of conspiracy, aiding and abetting terrorism. We complained bitterly that what surprised and still surprises us was (is) how the DSS came about its allegation of terrorism and terrorism financing against a group and individual(s) expressing political thoughts peacefully and non-violently, even when the same Terrorism Prevention Act of 2011 as amended clearly stated that activities of political parties and expression of political thoughts do not amount to acts of terrorism.
We informed further that Acts of Terrorism are clearly insurrectionist in nature and involve armed rebellion and use of widespread violence against a Government and its population. According to Section 1 of Terrorism Prevention Act of 2011 as amended; acts of terrorism include (i) an attack upon a person's life which may cause serious bodily harm or death; (ii) kidnapping of a person; (iii) destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property, likely to endanger human life or result in major economic loss; and (iv) the seizure of an aircraft, ship or other means of public or goods transport and diversion or the use of such means of transportation for any of the purposes.
And to be properly accused and investigated of involvement in acts of terrorism, Section 2 of the Act clearly stated that for a group to be accused as a terrorist group and individual (s) to be accused as terrorist (s), such group (s) and individual (s) must be presidentially and judicially proscribed; provided their violent activities are clearly in line with the definition of acts of terrorism in Section 1 of the Terrorism Act of 2011 as amended; that in the instant case, nothing of such nature was done till date.
We also observed that unconstitutional laws & court Orders are on rampage in Nigeria and condemned strongly the order exparte issued on 10th November 2015 by Hon Justice Adeniyi Ademola of the Federal High Court Six, Abuja Division for ninety days and above detention of Citizen Nnamdi Kanu on phantom allegation and investigation of his involvement in terrorism and terrorism financing; which we saw as not only a height of miscarriage of justice and brazen affront to the sanctity of the judiciary, but also threats to rule of law and the fundamental human rights of the detained citizen. We also saw it as a coup against the supremacy of the 1999 Constitution and grave disrespect to the Fundamental Human Rights Chapter of the 1999 Constitution and the African Charter on Human & Peoples Rights.
Surprising and shocking, too, was the fact that the order exparte, which, by convention, has short lifespan and ought to have elapsed by effusion of time after seven or fourteen days was still made by Hon Justice Ademola Adeniyi to subsist till date; with high possibility of its renewal ad infinitum and that the Judge could issue or grant such order, which has the capacity to terminate the life of the accused/detainee and have gravely undermined his fundamental human rights particularly his constitutional rights to fair hearing and personal liberty; without bordering to hear the other side or the accused/detainee. We held further that the Judge had no excuse over his failure to identify or take the judicial notice of the brazen inconsistency of Section 27 (1) of the Terrorism Prevention Act of 2011 as amended with Section 35 (4) (a) (b) of the 1999 Constitution. We asked: where lies the Judge’s sense of judgment and discretionary powers in the instant case?
The grave inconsistency of Section 27 (1) of the Terrorism Prevention Act of 2011 as amended; with Section 35 (4) (a) (b) of the 1999 Constitution was highlighted and placed side by side to the effect that while Section 27 (1) of the Terrorism Prevention Act contradictorily provided that: “the court may, pursuant to an exparte application, grant an order for the detention of a suspect under this Act for a period not exceeding 90 days subject to renewal for a similar period until the conclusion of the investigation and prosecution of the matter that led to the arrest and detention is dispensed with; Section 35 (4) (a) (b) of the 1999 Constitution under right to personal liberty; firmly directed that: “any person who is arrested or detained in accordance with sub section 1 (c) (suspicion of having committed a criminal offense carrying capital punishment) of this section shall be brought before a court within a reasonable time, and if he is not tried within a period of: (a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or (b) three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any other further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date”. We saw the former as a clear return of Decrees Nos. 2 and 4 of 1984.
At the end, we called on the AGF: to as a matter of uttermost immediacy and; inexcusably prepare and send an executive bill to the National Assembly for repealing of the unconstitutional Section 27 (1) of the Terrorism Prevention Act of 2011 as amended in 2013; highlighted above, owing to its grave inconsistency with Section 35 (4) (a) (b) of the 1999 Constitution and the African Charter on Human & Peoples Rights. The AGF was also urged to critically study other provisions of the Terrorism Prevention Act of 2011 as amended and ensure that all of such provisions are brought in tandem or made to be consistent with the 1999 Constitution.
On the part of the NJC/CJN, we called on the hallowed body/office to thoroughly investigate the roles of Hon Justice Ademola Adeniyi of the Federal High Court Six, Abuja Division in the consideration and issuance of the highly controversial and unconstitutional order; on the grounds of its grave inconsistency with the 1999 Constitution and gross failure of the Judge to consider the natural justice dictum of audi altarem partem (listen to or hear the other side) in consideration and issuance of the order. We noted that the Judge’s possible defense of ignorance of these two ground premises would be inexcusably impeachable and that the Judge ought to know the difference between ratio decidendi and orbiter dictum; and that it is not every issue that goes through the court process that comes out in the same shape and content. We demanded that Hon Justice Adeniyi Ademola should be appropriately sanctioned at the end; to serve as deterrent to others.
We also renewed our call for immediate and unconditional release from unconstitutional captivity of Citizen Nnamdi Kanu and an end to the return of indiscriminate use of trumped-up criminal charges or accusations by State security agencies under the executive midwifery of the Buhari’s Presidency to arrest and detain citizens in perpetuity and grossly deprive them of their constitutional and fundamental human rights to human dignity, personal liberty, freedom of movement, association and peaceful assembly; expression and fair hearing.
Emeka Umeagbalasi (Board Chairman),
Obianuju Igboeli, Esq. (Head, Civil Liberties & Rule of Law Program)
Chinwe Umeche, Esq. ( Head, Democracy & Good Governance Program)
Other members of the Southeast Based Coalition of Human Rights Organizations (SBCHRO)