IDEAS Radio 27 December 2019

The AGF and Court Orders

Aghogho Oboh: That happens when you are getting to the end of the year.  Everything goes gaga. Hello and welcome to the Public Square!

Rotimi Sankore: The last one for the year.

AgO: Yes, the last one for the year.  And you know what we’re going to be talking about today, shortly, because this is the last one.  And on the IDEAS segment which heralds Public Square: the Rule of Law and the Attorney-General Abubakar Malami Senior Advocate of Nigeria also Minister of Justice, has been in the news for controversial reasons, with the release … well, with the release of Omoyele Sowore and Sambo Dasuki the former National Security Adviser, on his own advice when a couple of weeks earlier he’d said that that was not his business.  But that’s what we’re going to be looking at during IDEAS: the Integrity and Ethical part of that question.

Then we will delve into the politics of 2019, it was a big year, the General Elections happened, as well as off-cycle elections in Kogi and Bayelsa States, remember we covered that wall-to-wall.  Remember, you can join the conversations, we’re on social media, on Twitter, Facebook. On Twitter it’s @PublicSquareNG, @NigeriaInfoFM, @ideasradiong, @AghoghoOboh, @RotimiSankore. Tweet at us at these different handles.  If you’ve got any questions on WhatsApp, comments also on WhatsApp 08095975805. Otherwise here we go with IDEAS.

Ayo Obe: Thank you Aghogho and Rotimi.  I think you should …

AgO: Rotimi says he feels more like dancing today.

AO: Oh, really?!  Well, definitely I have to first of all say ‘Compliments of the Season’. I hope that all IDEAS listeners had a Merry Christmas and that they are looking forward to a Happy, Prosperous, Peaceful etc. etc. New Year.  One of the things that may or may not determine the shape of the New Year is the topic that we’re going to be discussing today Rotimi, which is the apparent volte face by the Attorney-General of the Federation over the issue of compliance with orders of court.  You will recall that a few weeks ago, when the Attorney-General … when there was this very unseemly and disgraceful fracas in the Federal High Court after Omoyele Sowore had been released, and then he had come to court and he … the State Security had attempted to arrest him, and the Attorney-General then later said that he could not order the State Security Service to release Sowore.  But then, just before Christmas the Attorney-General’s office issued a … issued a statement on “the release of Colonel Sambo Dasuki (Rtd.) and Omoyele Sowore”, and … in which they said that they had “reviewed the pending criminal charges against the duo of Colonel Sambo Dasuki and Omoyele Sowore, and that they had decided that the order to … granting bail to the defendants [the two accused persons really], should be complied with and that they should be released.”  So I thought that that raises some issues that you might want to …

RS: Yes, definitely.  I think in fact most people are really wondering and seeking and searching for explanations on why the Attorney-General Malami, just two weeks ago was saying he’s unable to intervene, speak or act on the matter (if that’s the legal term), but then last week, then apparently then did, reversed himself, so it is a big issue about the Integrity of the process.  Whether in fact the Attorney-General and the Presidency were the ones, or involved in asking the DSS to re-arrest or not to release, if apparently they can now ask the DSS to release? And what was the DSS doing disobeying the court orders in the first place?

AO: Well, I mean, I should say if you read the Attorney-General’s Press Release, I have to say, let me be frank, that it would have been better if he had just said nothing and let the people be released, rather than what he has tried to do, which is to hinge the compliance with the order for bail on whether or not they are going to appeal against the orders granting bail, because … the fact is that those orders granting bail were not done yesterday or the day before yesterday, they were made quite some time ago, and …

RS: And multiple times too.

AO:  Yes. And so the Attorney-General’s … if they were going to appeal against the orders granting bail, then unless they had also secured an order stopping the … you know, staying execution of the order granting bail, then that by itself does not really carry much water.

RS: That is, the intention to appeal

AO: Yes, if you intend to appeal, that in itself means nothing.  Even if you appeal, that in itself does not operate as a stay of the order against which you are appealing, unless you also get an order for stay of execution of the order against you or the judgment or order against which you wish to appeal.  So that for the Attorney-General now to come out with a statement saying that we are reviewing the order, is … is strange, and I’ll tell you why. Partly because when (I’m not talking about Dasuki at the moment) but when Sowore was released it was in apparent compliance with the order of the Federal High Court, because the judge trying …

RS: That is, the second judge

AO: Yes, the judge

RS: The second judge’s second order

AO: the judge who was … who had granted the bail had instructed that the government should appear and explain within 24 hours why these releases had not been effected in accordance with the order made by the court, and that was when the release was apparently made.  Now, the release was certainly on conditions. Bail is always on conditions. But what the Attorney-General seems to be saying is that: Well, we complied with the order, but now, we are thinking about appealing. Is that why … does that thinking about appealing now entitle you to now go and arrest somebody?  And on the other hand, if your complaint is that the person has breached the conditions of their bail, does that give you the right to unilaterally revoke the bail? It does not. What happens is that you go …

RS: That’s … in legal terms, that is for the judge.

AO: You go back to the court this and this is what this person has done, I’m asking that their bail be revoked.  And then the court looks at what is done and decides whether or not to revoke the bail. It’s never a unilateral action.  But the reason why I think it raises issues of Integrity is because the Attorney-General … you know, we’ve discussed before whether the Attorney-General and the Ministry of … the offices of Attorney General and the Ministry of Justice ought to be separated.  At the moment they are not. And that means the Attorney-General has to be able to rise above the politics of the day and give the government dispassionate legal advice. You can give the advice, and you can do your best to find a legal way for the government to do what it wants to do.  But you yourself should not put yourself in a situation where you appear, as seems to be being done here … 

RS: Can I ask you a question on behalf of listeners: What’s the difference between the Attorney-General’s duties and the Minister of Justice?

AO: Well, it’s … I mean in countries where there’s a difference, the Attorney General is a legal, deals with legal matters, and is a legal personality …

RS: For the state.

AO: He gives the Government and the President advice on legal matters.  The Ministry of Justice on the other hand, is the Minister, is like a political person and so they are in a position to be taking political decisions.  Now, the reality is that whether you are a political person or not, your legal advice should never be something that bends in the political winds when you are talking to your principal.  And I think that’s really why the issue of Integrity and Ethics come in. Because the Nigerian public or Nigerian listeners, they understand that there is politics. But they also want to know that the Attorney-General is not giving the President wrong advice.  And that was why …

RS: Politicised legal advice.

AO: Yes.  Advice that …  as they say in A Man for All Seasons that: The advice that you give today needs to be good for tomorrow, otherwise, as they say, “I cannot bring myself to give the former if it is not compatible with the latter.”  And what we are finding is that advice today is one thing, and advice tomorrow may be something else. And that should be of concern to Nigerians because, undoubtedly the buck stops on the desk of the President. He appointed the Attorney-General, just as he appointed all his other Ministers, so if they mess up, at the end of the day, he’s the one that is responsible.  But you’ll remember Rotimi, when we were discussing the issue of the reappointment of Ministers, we did ask ourselves: Does the fact that certain Ministers are being brought back, is that the President’s way of saying that: I’m happy with what they have done? I’m happy with what they have achieved? And that means then that the President who is bringing people back, relies on these people and trusts them, and if they are not saying: Look, this is the situation, it’s … we have to let this person go.

RS: If we can go back to what the clearance or screening process was in the Senate … 

AO: Well, there wasn’t any, it was just ‘Bow and Go’ if you’ve been there before.

RS: Malami made a statement then, he said in his opinion that National Security is superior to individual human rights, which the President had also repeated.

AO: Well, that … you see … it’s …  If that was what he said, you may not quarrel with it, but you see, what the President was reported, that was in the speech that the President read, was that “National Security trumps the Rule of Law.”  You see under the Constitution, it says … it guarantees us certain fundamental rights but then it goes on to say “Nothing in these …” and it mentions the relevant sections, “shall negate anything reasonably necessary in a society …” and so on, so that … if the …  I need to perhaps find the relevant section, which will take me a bit of time, but it’s essentially saying that if there are reasonable things, for example, it could be security, it could be moral … public morality, public safety, public health and so on, there are certain circumstances in which you cannot enjoy your human rights absolutely, for example if you are suffering from a contagious disease, then the government can deprive you of your right to personal liberty, even though the Constitution has guaranteed it.  So that in itself … it’s …

RS: But under well known guidelines?

AO: The point is, there are no guidelines as such.  But the point is that it’s not so much that those things can’t happen, it’s that when the perception that most of us have, is that that … that … if that’s what he’s relying on, it’s now being applied to “embarrasses the government”, “may make the government look stupid” and so on and so forth: the kind of thing that they want to introduce with the Social Media Bill and so on; that if those are the … that is the basis, then it becomes questionable.  But, as I said, what the President was … what the complaint about what the President said is that he said that it is subordinate to the Rule of Law, and that is not provided for in the Nigerian Constitution, and I dare say that if that is the advice that has been given, then the Attorney-General needs to retrace his steps.

I would say, that it did seem to me that when, at the Nigerian Bar Association Lagos Branch Human Rights Summit, Femi Falana gave so many instances of occasions when the military dictatorship which had been headed by General Buhari had obeyed court orders, he then went on to say that: “And if any lawyer, any member of the Nigerian Bar Association, is advising the government that it can pick and choose which orders it wants to obey, then we should … that person needs to be sanctioned by the Bar Association.”  And of course, if you find yourself under sanctions by the Nigerian Bar Association, that may prevent you from being in a position where you can occupy the position of … it may be that that made the Attorney-General look at the way he was saying and what he was saying, and retrace his advice and try and dress it up with this: “We were considering appeal and we’re still considering appeal”, but the reality is that the language doesn’t really cover it.

So I felt that that … that against the first statement that “We cannot give the DSS instructions”, of course, as I always say Rotimi, that when someone had been doing wrong and they retrace their steps, we should be happy because as the Good Book says “There is more joy in heaven over one sinner that repenteth than over 99 that always do the right thing,” but in this case, the nature of the repentance is a little bit … iffy.

RS: Before we go, one … something that’s come up today.  One of the President’s spokespersons then stuck his foot in the already muddied waters and …  I don’t know what his intention is or was, but he then said: Oh, they were … Sowore and Dasuki were actually released on compassionate grounds, and that people should not … suggest that it was any legal or social pressure from …

AO: Well of course, you see …

RS: … from inside the country or externally.

AO: The problem is of course that the Federal Government took its time about making the decision that it made, and by then, statements had been made in the United States, there had been a press conference with Sowore’s wife, the order, …  a letter had been written by … 

RS: Members of Congress

AO: … Members of the Congress in the United States.  And of course, I don’t like to think that it was in response to such pressure, but the fact is that whether correlation is causation is a moot question in this point  because all of those things including pressure at home, complaints at home, pressure from abroad, complaints from abroad, they had all happened before the Federal Government got its finger out and did the right thing.  Now, as I said, we should always try encourage people who have started to do the right thing, to continue to do the right thing. The Presidential spokesperson, these are the same people who were telling us that the SSS does not have … the DSS does not have to tell the President what it’s doing, and this is  a very disgraceful type of thing. And of course, you can see already, that it’s going to be the defence that Dasuki is going to bring up, when he comes to, well, now that he’s been released, because his position had been: If I’m, when the government shows that it’s will obey the court that I can trust the court to hear my case.  And his case is that: Security vote … is security vote. At any rate, I will just say that it’s a two-edged sword, that this idea that the President should be … should close his eyes and pretend he doesn’t know what is happening. That’s how, as I’ve said before, when President Buhari was overthrown in 1985 and the DSS cells were opened up, it was a disgrace to the country, and it was a disgrace … and it tarnished his record.  

RS: Yes, I remember, at the time, although at the time they said that the po’ (as we call it) was not being used for toileting and eating, but the fact that that’s what people were actually eating from, it was not … I mean, people did not like the idea at all,   that even if people were prisoners, even if the po’ was brand new … why should people’s food be put in it? So I mean even those kind of details … didn’t endear people at all to …

AO: No, so I think that these spokespersons, and quite frankly, a whole load of people on social media who for one reason or the other feel that they must always back the President to the hilt: it doesn’t always help, because sometimes you back somebody to the hilt, and then, when they change, you are kind of left hanging in the wind, so I would say that …

RS: As indeed has happened to all those people who kept on justifying and arguing “Sowore was rude, he should be tried for treason, he can’t be released on bail!”

AO: Well, he’s being tried, and the court had decided to release him on bail in view of the charges that he faced, and that’s really all that is required.  If the government has the evidence, certainly it should bring up the evidence and let the matters go to trial. 

RS: Ok.  Thank you so much Ayo for the legal insights …

AO: So I just would say that it’s not always that Ethics, Integrity and Accountability delve … hang around matters of money.  The way that in which we use power that is entrusted to us by the public is a matter of IDEAS as far as I’m concerned, and if you abuse that power then it can become a matter of corruption, and to point that out is a way of fighting corruption.  Because of the power to corrupt and the tendency of absolute power to corrupt absolutely: we want to help the government always resist that tendency.

RS: I hope they will resist in 2020.

AgO: Alright.  So Public Square will continue right after the break.  Please don’t go anywhere, we’ll be right back.