Godwin Tsa, Abuja, Tony Osauzo, Benin, Magnus Eze, Enugu, Jeff Amaechi Agbodo, Onitsha, Chinelo Obogo, Chukwudi Nweje and Lukman Olabiyi
The Abuja division of the Federal High Court has given the Department of State Security Service (DSS) approval to detain the convener of #RevolutionNow protests, Omoyele Sowore, for 45 days pending the conclusion of its investigation.
Although the DSS had requested for 90 days, Justice Taiwo Taiwo held that the 45 days period granted by the court is subject for renewal for further number of days after the expiration of the initial period.
He said should the applicant require more time to conclude its investigation after the expiration of the first 45 days, it had the liberty to apply for its renewal.
Justice Taiwo said although the hearing of the application was one-sided as provided by 27(1) of the Terrorism (Prevention) Amendment Act, the use of the word, “may”, in the provision “is directory” and not “discretionary”.
He said he would, therefore, be failing in his duty not to grant the request for a detention order.
Justice Taiwo, said he had to grant the application, “only to the extent” of allowing the security agency to keep the respondent in custody for only 45 days for the applicant to conclude its investigation.”
The matter has been adjourned to September 21 for hearing.
Sowore, publisher of Sahara Reporters and presidential candidate of the African Action Congress (AAC) in the February 2019 elections was arrested on Saturday by operatives of DSS in Lagos and moved to Abuja on Sunday morning and is currently being detained in the custody of the DSS.
Afenifere, Chief Mike Ozekhome, Seyi Sowemimo both SAN, rights activists, Ebenezer Babatope, Tanko Yakassai, Onu Nwaeze and others, have reacted to the order with some of them describing it as bad for democracy and breached of his rights to fair hearing.
Constitutional lawyer, Chief Ozekhome faulted the decision of Justice Taiwo, who he accused misapplying his discretionary powers.
In a written statement, the activist said the court should have ordered Sowore to show cause why he should not be detained for 45 days.
The statement read in part: “What was the extreme urgency in the matter (usually the main ground for granting ex parte orders) that the Judge couldn’t order the Govt (who in any case was already detaining Sowore) to put him on notice? The Court could also have ordered Sowore to show cause why he should not be detained for 45 days.
“I think it was discretion wrongly exercised, not having been exercised judicially and judiciously.In any event, sections 39 to 43 of the Criminal Code and section 410 of the Penal Code which criminalise treason envision a dire situation where an intention to overthrow a government or overawe the president or povernor of a state (called “mens rea”) is accompanied by overt acts (called “actus reus”) such as stockpiling and possession of arms and ammunition to physically carry out an insurrection, coup de’tat,or to use Sowore and his group’s terminology revolution…
“To me, what all this boils down to is an intolerant government that is gravely and pathetically allergic to respect for and tolerance of criticism,the rule of law,individual fundamental rights, political choices, plurality of voices, dissenting opinions and independence of the Judiciary.”
Another senior advocate, Sowemimo described the order as oppressive.
He said government’s application for such a long time to investigate Sowore was an indication that it did not have any information at its disposal to prosecute him.
He argued that FG acted constitutionally to get the order in order not to violate the right of Sowore because there must be a court order to that effect or else it would amount to violation of right
He, however, stated that for court to grant such an order, it should have considered the information provided by the applicant against the suspect.
“There is provision for the order gotten by the FG against Sowore but this should be balanced with the constitutional right of the suspect, the constitutional right of the suspect can be jettisoned if the applicant provides information at their disposal to the court that the suspect is a security threat. But in my opinion, I don’t think FG have any information at their disposal against Sowore. If FG have any information at it disposal, by now prosecution should have started instead of asking for more time to investigate the suspect,” he said.
Another Senior Advocate of Nigeria, Emeka Ngige, said the best approach to resolving the order is through the judiciary and advised Sowore and other aggrieved persons to approach the court to have the order set aside.
“Since the detention order is based on a judicial proceeding, anybody aggrieved can go to court to have it set aside. They can approach the same court that granted the order to set aside its earlier order based on good reasons shown by Sowore’s lawyers. If the court sustains its earlier order, they equally have the liberty to approach the Court of Appeal to set aside the order.”
Ngige argued that the court order should neither be condemned nor Sowore eulogised but that the process which has already started in court should be concluded by the court.
In his own reaction, President of the Committee for Defence of Human Rights (CDHR), Malachy Ughumadu said the ordeal of Sowore is nothing short of DSS’s misguided mischief to legitimise an otherwise illegal action through the courts.
“Clearly, we have all condemned the illegal arrest and detention of Mr. Sowore in the circumstance that it was made which was rightly characterised as a breach of his fundamental rights. To be sure, you cannot place something on nothing and expect it to stand.
“Thus, while the court may have found a way of justifying the continued detention of Mr. Sowore, it does not detract from the illegality of his arrest and detention in the first place. When did the FG change the charge from treason and treasonable felony to anti-terrorism? This unholy wide fishing of both a charge and evidence is despicable against a person whose rights have been violated,” he said.
Also reacting, spokesman of the Edo Civil Societies Organisations (EdoCSOs), Osazee Edigin, observed that the court may have taken into account the provisions of the Administration Criminal Justice Act turning down the 90 days detention sought for by the Department State Security Service (DSS).
But Mr. Dele Igbinedion faulted the detention, saying the DSS with all its paraphernalia ought to have concluded its investigation before charging Sowore to court.
“You do not arrest before you investigate. You investigate before arrest. The whole process reveals the DSS as a clueless organisation. Any organisation worth its salt in security service would not have gotten itself in a mere protest against condition of living. Was Sowore found with a gun? While I do not subscribe to Sowore’s style, he is entitled to freedom of expression. The court should not have allowed itself to be used to legalise an illegal decision. If the court wants to remand, should not be more than 14 days according to the Administration of Criminal Justice Act.”
The National Legal Adviser of the African Action Congress (AAC), Inibehe Effiong, has vowed to challenge and ensure the vacation of a court order.
Effiong described the trial as illegal and said government is chasing shadow by its actions.
“We are saddened by the decision of the court because our position remains that the basis for which Sowore was arrested was not tenable in law. If we hear the DSS clearly, it is saying Sowore is calling for revolution, but we are saying you cannot bring that within the context of treason.
“Even at that, if you have already convicted him in the media, why do you need either 90 or 45 days to investigate again? While we believe that the judge exercised his discretion, the decision we have taken is that we would look at the decision made today and I can assure you that we will go to court to ensure that the order is vacated.
“Going by the recent anti-democratic developments, we are very sure that this country is being taken backward because what the government is saying is that dissent cannot be tolerated. If you say somebody has committed a crime for calling for revolution, you have to look at the intent. This is what is called mens rea in law and the action in law.”
Yoruba socio-cultural organisation, Afenifere, in a statement signed by its spokesperson, Yinka Odumakin, said the action represents a new phase in the ‘obstruction’ of democracy.
“We express great concern over the 45-day detention without trial granted granted the DSS by a Federal High Court on Omoyele Sowore over his call for a protest. The order represents a new phase in the orchestrated conscription of the democratic space in Nigeria. We are aware of that obnoxious provision in the Terrorism Act, but it can never assume superiority over the Constitution which stipulates that a citizen cannot be detained for more than 48 hours before being charged to court.
“Sowore was arrested before he could commit an offence and the DSS seems to want to go shopping for evidence to prosecute him. Having failed to allow him to commit the offence before he was arrested, the DSS should free Sowore or charge him to court so the judicial process can take its course. As it is, he is only being held illegally using the legal process. Our advice to government is that it should understand and act in conformity with the democratic tenets in dealing with the rights of Nigerians.”
Elder statesman, Tanko Yakassai, said the country, and so, he is not practising democracy and is not surprised by the actions of the Federal Government.
“It is the prerogative of the court to set bail conditions for anyone in detention based on the facts on ground. But that being said, we know the antecedents of President Muhammadu Buhari as a former military officer and how intolerant he is of any form of opposition, so I am not surprised at what is playing out. I have always said it and I will continue to say that we are not practising democracy, we are back to military dictatorship and for someone like Buhari, when you mention the word ‘revolution’, the assumption is that you want to topple his government. In a democracy, everyone has the freedom to protest misgovernance but when you say you are staging a revolution, the government will become agitated because they will think you want to topple them.”
Lawyer and former minister of transportation, Ebenezer Babatope, also flayed the court judgment as embarrassing, saying it showed the high level of intolerance of the government.
“What revolution are we talking about? Is it possible for one unarmed man to carry out a revolution against a government? It is an overkill to detain him and say he should remain in custody for the next 45 days. It is a very sad and embrassing development for our democracy. It is an indication that our government is very intolerant of opposing views.”
The Convener, Free Nigeria Movement, Raphael Adebayo, said Nigerians were appalled by the court order which he described as unjust.
He said the ruling was a testament to the entrenched injustice in the country which the #RevolutionNow protests intended to end.
“Any society where it is easier to persecute ordinary citizens than it is to prosecute a thieving elite is a society heading towards anarchy.
“By ordering the DSS to further detain Sowore, the court has made it clear that it is far from being an institution of justice in which the people can trust.”
Although Enugu-based rights lawyer, Olu Omotayo flayed the law on which the DSS wants to prefer charges against the Sahara Reporters’ publisher as draconian and equivalent to the obnoxious Decree 2 of the military era, he said Sowore was not properly advised because he should not have used the word revolution.
“If we look strictly at the legal perspective of the law on terrorism and the treasonable felony they want to charge him for, with the support of the court, I think the law says they can keep anybody for about three months while investigation goes on.
“This is part of the problem of the legislature. The law is similar to the obnoxious Decree 2 of 1984. I had written and kicked against it when it was a bill. The Act takes away the rights of the people. The problem is that the legislators don’t employ competent people to advise them. If they didn’t understand it; they should have asked. That’s why we are all suffering it today. It’s already a law and unless when it’s amended; there’s nothing you can do.
“So, the issue now is that Sowore did not consult very well. If he did, he should not have used the word, ‘revolution’, maybe he would have used say words like occupy. He cannot be seeking the protection of the provision of the constitution as it relates to fundamental human rights, for a constitution by his pronouncement of revolution he was seeking to over throw.
“That’s from legal perspective. But from the activism perspective; what he did was just a protest and not a revolution. So, they’re just punishing. What is going on is equivalent to killing a fly with a sledge hammer.
Also, Centre Against Brutality and for Safety of Journalists in Africa (CABSOJA) said the ruling was a complete abuse of the discretionary powers of the Court which it ought to exercise judicially and judiciously.
The convener of the group, Ugochukwu Ezeikel-Hanks, said in making orders at the back of a party, the court ought to consider the competing rights of parties to justice.
“In doing so, the facts before the Court should be carefully and cautiously considered to determine what is more equitable or justiciable in the circumstance of the case. In the case of Sowore, what are the facts presented before the Court to show prima facie that there were both the mens rea and some form of action towards over throwing the government of the Federal Republic of Nigeria. Our view is that the Judge ought to have, at best, direct the DSS to put the Defendant on notice. The essence of law is to ensure justice and the Court should not unwittingly allow itself to be used to abuse the rights of citizens. There is no urgency and the DSS has the option to charge him to Court. Their action smacks of bad faith and one expected the judge to see through it. It is unfortunate and we totally condemn it,” the rights lawyer stated.
For the Human Rights Liberty, Access and Defenders Foundation and Access (HURIDE), the court ruling was inhuman and a threat to democracy.
HURIDE Chairman, Dede Uzor said: “Sowore didn’t constitute a threat to our democratic development; he just called for protest over injustice, tyranny, economic failure in the country.
“How can a court of competent jurisdiction give such order that a citizen should be detained for nearly two months? It is threat to our democracy. It is not acceptable, it is kangaroo court ruling and it cannot stand as far as we are concerned. The human rights organization will appeal the ruling.”
However, the National Council for Democratic Development (NCDD) threw his weight behind government’s action.
NCDD National Coordinator, Onu Nwaeze Prince, condemned in strong terms, call for revolution and any unconstitutional action against the government of President Buhari.
“We are against any actions that will overheat the polity as the protests or call for Revolution Now is needless and borne out of selfish desires of evil sponsors and actors within and outside Nigeria. Of note, where the convener, as a presidential candidate of AAC in the just concluded elections, we believe he got his democratic rights to be voted for but was rejected by Nigerians.
“That we appreciate and support the prompt action undertaken by the DSS.
“That as a foremost vanguard for rights of every Nigerian for a democratic space, we acknowledge every citizen’s rights to protest and freedom of association but such rights, as the case here, should not be used to destroy the peace and stability of the country.”