Godwin Tsa, Abuja
Detained puublisher of Sahara Reporters and presidential candidate of the African Action Congress in the February 2019 elections, Omoleye Sowore has asked the Federal High Court to vacate its order granting the Department of State Services (DSS) permission to detain him for a period of 45 days.
Justice Taiwo Taiwo who granted the exparte application equally ordered that 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.
But in a motion on notice filed by his counsel, Femi Falana (SAN), Sowore asked the court for an order setting aside, discharging and/or vacating the ex parte order directing his detention for a period of 45 days made on the 8th August, 2019.
The motion brought pursuant to sections 6 (6) (B), 35 and 36(4) of the 1999 constitution and section 293 of the Administration of Criminal Justice Act, 2015 is anchored on that ” the said order of the Honorable Court breached the fundamental right provisions of the 1999 Constitution (as amended).
“The detention of the respondent/applicant for an initial 4 days period before the grant of the ex-parte order is illegal by virtue of Section 35 of the 1999 Constitution (as amended).
“The order ex-parte brought pursuant to Section 27 (1) of the Anti-Terrorism Act, 2013 was obtained by the applicant/respondent to legalise an illegal detention by the applicant/respondent.
“The applicant/respondent dumped the video evidence in support of its application on the Honourable Court whilst the learned trial judge watched same in his chambers and not in the open court.
“The respondent/applicant was arrested on Saturday 3rd August, 2019 before the planned protest that took place on Monday 5th August, 2019 while he was already under the custody of the Applicant/Respondent.
Falana equally argued that ” the persons who participated in the protests of 5th August, 2019 have been charged with unlawful assembly at the Magistrate Courts at Ebute-Metta, Lagos State and Calabar, Lagos State.
He submitted that “the Applicant/Respondent motion exparte filed 5th August, 2019, did not disclose any fact capable of linking the Respondent /Applicant to any terrorism activity.
That in the same vein the motion filed 5th August, 2019 did not in the supporting Affidavit allude to facts linking the Respondents/Applicants to any terrorism activity.
The Applicant’s detention has exceeded the maximum period a court of law can allow the Respondent to detain the Applicant in accordance with the provisions of Section 35 (4) (a) of the Constitution of Nigeria (AS AMENEDED) 2011 which only empowered the Applicant/Respondent to detain the Applicants for a maximum period of two months from the date of their arrest.
That the Order made on 8th August, 2019 was based on a wrong presumption and mistake that the Complaint against the respondent therein relates to terrorism.
That by virtue of Section 293 of the Administration of Criminal Justice Act, 2015, an application for the remand of any suspect is to be made before a Magistrate Court.
By virtue of the actions of the Applicant/Respondent, the Respondents/Applicants right to life, dignity of human person, health and freedom of movement are under threat as same is currently being violated by the Respondent without any justification known to law.
In his ruling, 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.”
I have gone through the processes before me and also the relevant sections of the law. Especially section 35(1); 35 (3), 35 (4) and 35(7) of the Terrorism Prevention Act as well as the NSA Act.
” Section 35 of the 1999 constitution dealing with the liberty of a citizen is not absolute.
“However, decisions of courts must be backed by existing laws and fact. The court has to look at the fact presented before it, which at the moment is one-sided.
” This type of application is backed by law and it is therefore not strange in law.
“I have watched the evidence attached. Two key words are important in considered this application.
“One is that the facts contained in the application are allegations which must be proved beyond reasonable doubts.
” The other is allegations. There is no doubt that the responded is entitled to personal liberty under section 35(1) of the 1999 constitution.
“The nature of the offence of terrorism which the responded is been investigated is grave. The gravity of the offence is that it is an affront to the peace of the society, it has psychological effect on members of the society.
” The offence further threatens the stability of the state.
“However, the facts contained in the application are allegations which must be proven at a certain time.
” I am of the view that section 37 (1) of the Terrorism Prevention Act, the use of the word may connotes that the court has discretion in this matter.
“The law is long settled that the word “may” may not sometimes be discretionary. In the instant case, I am of the view that the use is discretionary and not mandatory.
“I shall therefore grant this application only for a period of 45 days subject for renewal for further number of 45 days by the DSS.
Sowore, who is the puublisher of Sahara Reporters and presidential candidate of the African Action Congress in the February 2019 elections was arrested in the early hours of Saturday by operatives of the Department of State Services in a hotel in Lagos.
The state agency said Sowore was arrested on account of the #RevolutionNow protest which he had spearheaded.
Sowore was moved to Abuja on Sunday morning and is currently being detained in the custody of the DSS.
The exparte motion by the DSS marked FHC/ABJ/CS/ 915/19 is seeking the order of the court to detain Sowore beyond the 48 hours of his arrest required by law.
The application was brought under section 27 (1) of the Terrorism Prevention Act 2013 and was supported by a seven paragraph affidavit deposed to by Mohammed Bello.
Attached to the application were two video clips marked exhibit SS 1 and SS 2 respectively.
While exhibit SS1 is a video statement by Sowore with Nnamdi Kanu, exhibit SS 2 showed statement by members of the proscribed Islamic Movement of Nigeria (IMN) that they were going to join forces with Sowore to bring down the government.
Meanwhile, the matter has been adjourned to September 21 for hearing.