Oct 22, 2019

Variation of Stringent Bail Conditions not Enough, Why Sowore Deserves no Bail - Richarmond O. Natha-Alade


Following recent outcries and sentiments whipped by Omoyele Sowore, his supporters and the key players in his defence, occasioned by his arrest and detention ordeal, everyone suddenly turned to blame the President of the Federal Republic of Nigeria as a tyrant upon whose authority Omoyele Sowore had been detained and undergoing trial for treasonable felony and terrorism, among other charges. Unfortunately, most Nigerians and persons in this shoe do not know as of fact that President Buhari may not be aware that anybody called Omoyele Sowore is being held, detained and undergoing trial for such offence. Isn’t that interesting? It would be justified in due course.


For my readers to appreciate the purport and essence of this piece vis-à-vis the legal framework of the State Security Service (SSS) and its functions and extents, I hereby give its brief background as follows:

The State Security Service (SSS), self-styled as the Department of State Services (DSS), is the primary domestic intelligence agency of Nigeria. It is primarily responsible for intelligence gathering within the country and for the protection of senior government officials, particularly the President and State Governors. It is one of three successor organisations to the defunct National Security Organization  (NSO), dissolved in 1986. The SSS is under the control of the National Security Adviser.

Ex-President, Ibrahim Babangida in June 1986 issued Decree Number 19, dissolving the National Security Organization (NSO) and re-structuring Nigeria's security services into three separate entities under the Office of the Coordinator of National Security. The State Security Service (SSS) was made responsible for domestic intelligence. The National Intelligence Agency. (NIA) handled external intelligence and counter-intelligence. The Defence Intelligence Agency (DIA) was responsible for military-related intelligence outside and inside Nigeria.

The mission of the SSS is to protect and defend the Federal Republic of Nigeria against domestic threats, to uphold and enforce the criminal laws of Nigeria, and to provide leadership and criminal justice services to both federal and state law-enforcement organs. The SSS is also charged with the protection of the President, Vice President,Senate President, Speaker of House of Representatives, State Governors and Deputy Governors, spouses, certain candidates for the offices of President and Vice President, and visiting foreign heads of state and government. The SSS has constantly adapted to various roles necessitated by evolving security threats in Nigeria including counter-terrorism and counter-insurgent.

The Enabling Law under which DSS Operates
Sequel to the disbandment of National Security Organization by Ex-president Babangida regime in 1986 and the issuance of Decree 19, same lasted and became part of the consolidated Laws of the Federation of Nigeria (LFN) now known as the National Security Agencies Act, CAP 278 of the Laws of the Federation of Nigeria, 1990. Section 2  (3) and (4) of the enabling law specifies the powers and functions to the State Security Service as earlier mentioned and same includes liaising with relevant agencies in the arrest and prosecution of any person found wanting of the provisions of the Act as it relates to security of Nigeria and its elected chief executives and/or Officials. The roles and functions of SSS has been given Judicial Imprimatur in the case of DIRECTOR OF SSS & ORS V AGBAKOBA (1999) LPERLR- 954(SC), at page 22 Paragraphs A-E Me Lord Uwais J.S.C. in a unanimous decision held as follows:

“The duties of the SSS are spelt out under Section 2 subsections (3) and (4) of the National Security Agencies Act, Cap. 278 of the Laws of the Federation of Nigeria, 1990. It provides: "2(3) The State Security Service shall be charged with responsibility for- (a) the prevention and detention within Nigeria of any crime against the internal security of Nigeria; (b) the protection and preservation of all non-military classified matters concerning the internal security of Nigeria; and (c) such other responsibilities affecting internal security within Nigeria as the National Assembly or the President, Commander-in-Chief of the Armed Forces, as the case may be, may deem necessary. (4) The foregoing provisions of this section shall have effect notwithstanding the provisions of any other law to the contrary, or any matter therein mentioned."
In the light of the above, could it be said that the Department of State Security acted ultra vires its power as donated to it by the enabling laws in the arrest and prosecution of Omoyele Sowore accordingly? The answer is not far-fetched, as same is obviously found within the line of law and reasoning.

On the propriety of badging every crime on the President Chest and seeking his intervention in every judicial process that seems of National concerns:

It is not only sad but disgusting, the shared ignorance borne out of irrational temperance and cerebral laxity of many members of the Nigerian populace attributing and heaping all sought of abnormalities, disobedience of court order, mal-administration, societal decadence and general failure of any public institution on the office of the President of the Federation.

The responsibilities attached to the office of the president of a country is so enormous that if he faces foreign policy alone by attending to correspondences, meetings and engagements from the 192 countries of the world, he could never finish, not to talk of being fully involved in activities of 45 ministries, about 380 Boards (above number of days in a year), 210 agencies, Tasking Security reports from all security agencies from all round the Federation, State Governors and Government activities e.t.c; all these outside the duties imposed by the constitution and other enabling laws of Nigeria couple with activities and briefings from other arms of government, which are also at all time critical.

Criticism is cheap, it takes whoever wears a shoe to know where it pinches. It is not only laughable but ridiculous that many men who cannot rule one wife and three children successfully and/or, who cannot attempt to rule two or more wives of same tribe under same roof and who cannot successfully lead a group of 20 men without serious problems are always in the fore front of those who easily criticize and condemn a president who leads above 200 million men and women of different tribes and culture in an African country with extensive land mass and so much complexities as Nigeria.

The above picture is painted to lets appreciate the enormous tasks and importance attached to the office of a president of Nigeria; in the circumstance, could anyone not imagine and satisfy his soul that someone as busy as Nigeria president may not be aware Sowore is being detained or prosecuted? If the SSS are performing their lawful duties and President Buhari never made a comment of awareness, Why fighting the wind?

Sowore is like every normal Nigerian, he has been accused of terrorism, treasonable felony and conduct likely to breach public peace among other offences. I earlier suggested in my earlier article that sowore ought to seek political solution before it is too late.  see: REVOLUTION: Sowore was not properly advised, He may be sentenced to death
https://lordricharmond.blogspot.com/2019/08/revolution-sowore-was-not-properly.html 

Unfortunately, None of Sowore and/or his supporters would help matter. Sowore in his penultimate day in court was seen chanting Revolution in open court, behaving unruly and addressing press men in an inappropriate manner, despite the pendency of his case in court. That in itself is enough to deny him bail; because he has high tendencies to continue in the offence for which he is been charged when released on bail; granting him bail in the circumstance is against the guiding principles of law on bail. The fact of his case is simple, clear and distinguishable from the constitutionally guaranteed right to peaceful and lawful protest. I refer to my last article where I begged to differ from the position of revered learned Silk Femi Falana, SAN. Read  up: #RevolutionNow: Femi Falana, SAN Slipped! He Compared Two Parallel Dead Ends 
 https://lordricharmond.blogspot.com/2019/08/revolutionnow-femi-falana-san-goofed-he.html

Anyone who expects President Buhari to be in over 5, 000 police stations across Nigeria, 500 army and naval bases across the country and about over a thousand EFCC, ICPC, DSS, Civil Defence and other security and enforcement agencies offices/stations spread across the country so that he could intervene in respect of all crimes of anyone arrested and accused of commiting an offense must be subject to mental examination.

Sowore is only one person of the over Two Hundred Million Nigerians who is subject to laws and regulations. The SSS has obligations to perform their duties under the law. Our president is far busy than to being dragged to intervene in the affairs of all criminally inclined persons who are arrested and charged accordingly. There are over a thousand things to be done by office of the President than silly intervention in crimes and prosecution of arrested persons which is just 1% fragment of issues of the entire national concerns.

The shocker is; President Buhari may not even know Omoyele Sowore exists. If there is disobedience of court order, why not ask the relevant agencies concerned and drag their respective heads or coordinating leadership to court for contempt and let them be decisively dealt with, instead of blaming all societal ills across Nigeria on President Buhari. Some would even argue, President Buhari is the reason Bobrisky is cross-dressed, President Buhari is the reason Nigerian police men who arrested Wadume were killed by corrupt army officers, President Buhari is the reason some pastors / Imams are duping and harassing their female members, President Buhari is the reason why lecturers are corrupt and exchanging sex for marks; as a matter of fact, President Buhari is the reason they cannot satisfy their wives in bed. What blame would Buhari not take for being Nigerian President? Many lazy Nigerian Youths with low intelligence quotient and almost no knowledge in anything, who rates BB Naija Show above leadership and matters of importance and national concerns that should ordinarily influence their lives and future would rather blame the president for their misery. Where is the hope for this generation?

The law prohibits President Buhari or any person whatsoever to intervene and influence criminal investigation and prosecution

The position of Law is clear that no one is allowed to obstruct the course of justice, influence same or allow same to be influenced. The law only allows anyone convicted of a crime to be pardoned by the President or Governor if the offence is that of Federal or State respectively; if such president or Governor so wishes under prerogative of mercy arrangement. But that comes only after conviction, not in the process of investigation and prosecution. In the United States and most part of the advanced world, it is an impeachable offence considered to be against the constitution and the oath of office for the president or anyone in authority to influence investigation, not to talk of prosecution.

For there to be a claim of obstruction of justice, a legal proceeding has to be underway. The legal proceeding can be an investigation, a trial, or an inquiry in the pursuit of justice. To obstruct justice, a person must knowingly and/or willfully interfere with the pursuit of justice. This interference could be in the form of a threat to a witness, judge, or other legal officials. Interference could also be in the form of physical harm, undue influence or even hindering in the discovery or apprehension of a suspect for a crime. A person who provides information that they know to be false in the course of an investigation or legal process may also be accused of obstruction of justice.

It is gross corruption and abuse of office which any offender can be arrested and charged under relevant laws to call and ask for the intervention or influence of the president or authorities in criminal process with the sole aim or intention of obstructing the course of justice. It is more damning when same issue is already placed before the court for adjudication.  

It is not enough to heap blames on the president of the nation for any misgivings occasioned by any institution of government, which is expansive and complex beyond any iota of imagination. Our laws and the system must be made strong enough to punish culprits without trading words targeted at blaming the president for all.

Interest of Nigeria as a Nation is Paramount than that of any individual
In all, the National interest remains paramount above individual interests. In recent past, many persons who constitutes National threat and who are ordinarily not entitled to bail were granted bail. I recommend that expert advice in deserving cases on security and intelligence issues be duly considered by our courts prior to making orders. Although, the grant or refusal bail is discretionary, yet, the law is trite that every discretionary power should not be arbitrarily used and/or based on the whims and caprices of the user, but must be exercised judicially and judiciously. The rights of parties before the court must at all time be duly considered. The legal principles for grant or refusal of bail should be at all time duly considered as expatiated by Me Lords of the Apex Court in the case of Dokubo-Asari v. FRN (2007) LPELR-958 SC ( Pp. 9-11, paras. B-E)

 "When it comes to the issue of whether to grant or refuse bail pending trial of an accused by the trial Court, the law has set some criteria which the trial court shall consider in the exercise of its judicial discretion to arrive at a decision. These criteria have been well articulated in several decisions of this court. Such criteria include, among others, the following: (i) the nature of the charge; (ii) the strength of the evidence which supports the charge; (iii) the gravity of the punishment in the event of conviction; (iv) the previous criminal record of the accused if any; (v) the probability that the accused may not surrender himself for trial; the likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him; (vii) the likelihood of further charge being brought against the accused; (viii) the probability of guilt; (ix) detention for the protection of the accused; (x) the necessity to procure medical or social report pending final disposal of the case. See: Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270; Abacha v. State (2002) 5 NWLR (Pt. 761) 638; Ani v. State (2002) 1 NWLR (Pt. 747) 217; Ekwenugo v. Federal Republic of Nigeria (2001) 6 NWLR (Pt. 708) 171; Eyu v. State (1988) 2 NWLR (Pt. 78) 602. The criteria are not exhaustive. Other factors not mentioned may be relevant to the determination of grant or refusal of bail to an accused. They provide the required guideline to a trial court in the exercise of its discretion on matters of bail pending trial. My learned brother, Uwaifo, JSC, has this to say on these factors: "In that regard it is proper to consider the nature of the offence, the nature of the evidence in support of it, and the severity of the punishment which conviction will entail. The learned trial Judge took this critical factor as to availability to stand trial into consideration ... These are not matters that should be glossed over. Some of them may not be admissible as evidence in the main trial but they are certainly worthy to be taken into account in an application for bail pending trial." See the case of Bamaiyi v. State (supra) at page 292. In his contribution in the above case at pg 294, Ogbuegbu, JSC, stated: "The court has in most cases, discretion to admit an accused person to bail pending trial, but in the exercise of the discretion, the nature of the charge, the evidence by which it is supported, the sentence which by law may be passed in the event of conviction, the probability that the appellant will appear to take his trial, are the most important ingredients for the guidance of the court and where these are weighty, an appellate court will not interfere. See: In the matter of Etienne Barronent v. Edmond Allian I. E. and B. I. (1852) Dears 51; 118 E. R. K.B. 337 and Re Robinson (1854) 23 L.J.Q.B 286." Per MUHAMMAD ,J.S.C
In same case of Asari- Dokubo which is a reiteration of Bamaiyi case, the Supreme court has emphasized the rights of Nigeria as a Nation as above that of every individuals, hence Per MUHAMMAD ,J.S.C at P. 38, paras. B-E held viz;

"The pronouncement by the court below is that where National Security is threatened or there is the real likelihood of it being threatened, human rights or the individual right of those responsible take second place. Human rights or individual rights must be suspended until the National Security can be protected or well taken care of. This is not anything new. The corporate existence of Nigeria as a united, harmonious, indivisible and indissoluble sovereign nation, is certainly greater than any citizen's liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individual's liberty or right may not even exist."
By law, It should be Nigeria first before any Nigerian or group of Nigerians. Court or any of its officials do not carry gun to fight bandits, Lawyers do not enter Sambisa forests, bloody civilians do not suppress riots or insurgency of huge weaponry, the Journalists do not fight war. Where is Nnamdi Kanu today and what is he doing where he ran to? he jumped bail and persists in his crime while building and encouraging other criminals. What were the gimmicks of El-zazzaky with joint external forces; If not for the wisdom,  exercised by the Kaduna State Judge who gave El-zazakky bail condition and the compliance procedure wisdom exercised by the State? We should at least be sure that if  Abubakar Shekau of boko haram is arrested today, he would not be unleashed on us and/or sent back to us by being released on bail the moment he is caught. Experts’ advice and/or opinions on security / intelligence issues should not be treated with kid glove, but with great concerns and carefulness in giving qualified freedom to individuals whose conduct constitutes threat to national security.

May God endow our Honurable Judges and Justices with more wisdom to read between the lines and do just on matters that affect national interest and security. May we never know the price of peace.

Richarmond O. Natha-Alade is a legal Practitioner and Principal Partner at
Sun Natha-Alade & Partners (SNATHAP)
lordricharmond@gmail.com
www.snathap.com

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