By Prof Mike Ozekhome, SAN
INTRODUCTION
Politics and Law have been an age-long issue of discourse in governance and leadership. These are pivotal points revolving around every national question. The essence of law is to prescribe laid down standards, rules and regulations for controlling affairs within the State. Intricate in this discourse is the modern idea of the doctrine of separation of powers found in one of the most important eighteenth-century (1748) works on political science, the Baron de Montesquieu’s Spirit of the Laws (1748), which states that:
“There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates … [or] if the power of judging be not separated from the legislative and executive powers.”
In Nigeria, constitutional powers under the 1999 Constitution, as altered, are shared amongst the three arms of government. While the Legislature makes law (section 4), the Executive implements the laws (section 5); and the Judiciary interprets them (section 6).
In a democratic setting, mutual respect within the arms of government is very sacrosanct. No arm of government is allowed to suppress, diminish, intimidate, or make nonsense of the other in all ramifications.
The executive has for too long been a bane on the legislature; but same cannot be compared to the affront it displays against the Judiciary, and the ordinary Nigerians. Little wonder, Alexander Hamilton noted thus:
” …The Judiciary Branch may truly be said to have neither FORCE nor WILL, but merely judgement; and must ultimately depend upon the aid of the executive arm even for the efficacy of it’s judgements.”
However, I have never been a disciple and adherer of the above quote, for I believe that even in silence, the Judiciary remains the shield of all – including the Executive and the Legislature. The rule of law in Nigeria has suffered so much aberration, the most – being the brazen disobedience to Court orders.
In the Military Governor of Lagos State v. Ojukwu SC (1986) 2 LLER 2; All NLR 233, Hon. Justice Mohammed Lawal Uwais JSC (as he then was), on the dangers inherent in disregard for rule of law by the government, had this to say;
“If Governments treat court order with levity and contempt the confidence of the citizen in the courts will be seriously eroded and the effect of that will be the beginning of anarchy in replacement of the rule of law. If anyone should be wary of orders of court it is the authorities; for they, more than anyone else, need the application of the rule of law in order to govern properly and effectively.”
In the same vein, Lord Atkins in LIVERSIDGE vs. ANDERSON (1942) AC 206, opined thus:
“Amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which recent authority, we are now fighting that judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law”.
So many instances abound to show the persistent disobedience of Court orders by the executive arm of government. The executive branch has since become like wizards and witches, operating in a dark coven – witch-hunting some targeted persons in blatant disregard to whatever orders a court may have made. The recent travails of the former Executive Chairman of the EFCC, Abdulrasheed Bawa and the former Governor of the Central Bank of Nigeria (CBN), are not far from executive witch-hunt, bordering on palpable executive lawlessness and rascality. It is indeed pitiable that after all the ills perpetrated by the Buhari-led administration, only these two have been singled out to become EXECUTIVE VICTIMS.
ABDULRASHEED BAWA: WHAT IS HIS OFFENCE?
On February 24, 2021, former civilian dictator and ethnic warlord, President Muhammadu Buhari, appointed the 43 years old Bawa (born April 30, 1980) as the Executive Chairman of the EFCC, to replace the then suspended former chairman, Ibrahim Magu. The young man appeared to have taken to a higher notch, the ante of graft agency governance structure, by reducing media trial, political hype and the “name-and-shame” mantra glorified by Buhari and his Propaganda maestro, Lai Mohammed (who would make Hitler’s Goebel green with envy from his second World War cold grave of the Nazi Germany third Reich (1933-1945). Or, so we thought, until 14th June, 2023, when the new strong man and Sheriff in town, Asiwaju Bola Ahmed Tinubu, came in view. On that Ceasar’s “Ides of March”, Bawa was promptly picked up by Nigeria’s usually hooded secret Police, the Department of State Security Service (DSS). The DSS gave its reason as an invitation relating to “some investigative activities concerning him”. I thought under the National Securities Agency Act, 1986, the DSS is only responsible for national security matters. Do these include economic crimes for which the EFCC (Establishment) Act, 2004, was promulgated, with Bawa heading it? I do not know. Or, do you?
Nearly two months later, Bawa remains kept in captivity, in the DSS gulag. I thought section 35 of the 1999 Constitution, as amended, provides for only one day (24 hours) incarceration when there is a court of competent jurisdiction within a radius of forty kilometers from the Police Station; and where there is no court within a 40-kilometers radius from the station, the time is a period of 2 days (48 hours); or any longer period which the court considers reasonable given the particular circumstances of the case. See the case of AMOS & ORS V. DANIEL & ORS (2023) LPELR – 60454 (CA). The DSS, through its Director of Information, Willie Bassey, cited “weighty allegations of abuse of office levelled against him”, as the reason for Bawa’s continued captivity. This continued detention without trial is barbaric, atrocious and unconscionable, to say the least. Are we still living in the early caveman Australopithecus era? I do not know. Or, do you?
Till date, the DSS has not told Nigerians what Bawa’s specific offences are (if any), or the level of “investigation”. Investigation? Mtchew! Even if he committed some infractions of the law, can illegality beget legality? Can two wrongs make a right? Can the DSS continue to be the accuser, arrester, detainer, investigator, prosecutor and the Judge? What is going on here? The last time I checked, even amongst mad people, there is orderliness. DSS, for God’s sake, and for the sake of decency and our constitutional democracy, release Bawa immediately and forthwith. Haba!
GODWIN EMEFIELE – DID HE COMMIT MURDER?
Emefiele’s sad tale has further amplified the saying that, “…he who sups with devil, should have a very long spoon.” The meaning of this quote, varies, but i resolve it in this circumstance to mean, he who dines with the devil should maintain a long distance. Mr Godwin Emefiele, one of the longest serving Governors of the CBN, a refined and brilliant banker, Economist and politician at heart, is simply an “Executive Victim”, or victim of executive lawlessness and rascality. as a result of the unpalatable “feast” he had with the Buhari government. I wish he had had the opportunity to read my “Buharocracy.”- How Buharocracy put Nigeria in throes, by Prof. Mike Ozekhome, SAN.<https://www.thefreelibrary.com/How+Buharocracy+put+Nigeria+in+throes%2C+By+Mike+Ozekhome.-a0752354217>; How Buharocracy put Nigeria in throes.<https://sunnewsonline.com/how-buharocracy-put-nigeria-in-throes-2/>; How Buhari put Nigeria in throes.<https://sunnewsonline.com/how-buharocracy-put-nigeria-in-throes-3/>;Buharocracy: Know ye the Concept.<https://mikeozekhomeschambers.com/buharocracy-know-ye-the-concept-part-4/>. If he had, he probably would have done things differently.
THE MANY YET UNSUBSTANTIATED “SINS” OF EMEFIELE IN CIRCULATION
A flip through many publications of media outlets, shows how Nigerians are so hard on and crazy about Emefiele, majorly because of the hardship some monetary policies he introduced have subjected Nigerians to.
Amongst others, Emefiele has been serially accused of plunging the nation’s currency to a zero level. The Naira which was exchangeable at about N190 against US dollar before Buhari’s arrival, now exchanges for N800.00. that he was allowing unscrupulous elements with access to the import and export window (people who profit robustly from currency arbitrage and round-tripping). He was also accused of attempting to succeed Buhari, irrespective of his occupation of a very vital and juicy office such as the CBN Governor. They accused him of releasing only $17 million, and abandoning $53 million in unpaid debt; of failure to curb inflation despite the amount of trillions spent (the surge in inflation hit 22% in 2023). The most daring to Nigerians was the Naira Currency Swap/printing. N22 trillion was reportedly spent on reprinting which allegedly threatened the corporate existence of Nigeria, and sent so many to early graves. May their Souls rest in perfect peace, Amen.
All these and many more are the scares on Emefiele. I have still not heard anyone accuse Emefiele of stealing trillions of Naira like many of Buhari’s acolytes. I did not hear that he was involved in any coup attempt, or in kidnapping, armed banditry, or armed robbery. I am yet to hear that Emefiele committed murder. Even in these capital offences, a Judge can still grant bail to an accused person under certain circumstances as provided for in section 161 of the ACJA. See the cases of ABACHA V. THE STATE & ORS (2002) 5 NWLR (Pt. 761) 638 and NWAKANMA V. STATE OF LAGOS (2020) LPELR-50107 (CA). So, the questions still remain unanswered: were all these acts complained about in Emefiele’s own accord alone? Could Emefiele have taken these decisions alone without former President Buhari’s backing? Can someone clap with one palm? Why punish the messenger and save the principal sender? Is this not selective justice? Is it because of where he comes from? Could this have happened to a Northerner given the same extenuating circumstances? I do not know. Or, do you?
THE TRAVAILS OF EMEFIELE: EARLY ALLEGATIONS AND COURT INTERVENTION
On December 19, 2022, Hon. Justice Tsoho, Chief Judge of the Federal High Court sitting in Abuja, declined an application by the DSS to arrest and detain Emefiele. This was as a result of the allegation leveled on Emefiele in respect of alleged terrorism financing and economic crimes. Emefiele, was accused of funding “unknown gunmen” and members of the outlawed Indigenous People of Biafra (IPOB), by the State Security Service (SSS).
The learned Justice noted that, there was no concrete evidence to substantiate the claims that Emefiele was involved in the alleged crimes. The application was dismissed on the grounds of lack of evidence. The secret Police had no confidence in their own investigation. In other words, it was a mere witch-hunt, the beginning of a long story. Methinks so, don’t you?
Again, on December 29, 2022, Hon. Justice M. A. Hassan, of the Federal Capital Territory (FCT) High Court sitting in Maitama, issued an order restraining the DSS from arresting Emefiele.
The Incorporated Trustees of Forum for Accountability and Good Leadership, as Applicants, had filed an application against the DSS and the Economic and Financial Crimes Commission (EFCC), as Respondents, to restrain the arrest of Emefiele by the two operative agencies.
The Court ruled that the “continuous harassment” of Emefiele over “trumped-up allegations of terrorism financing and fraudulent practices” was unwarranted and oppressive, as there were no evidence to substantiate the allegations of terrorism.
THE JUDICIAL COURT AND PUBLIC COURT
At the FCT High Court, EFCC in a counter affidavit, denied having any business with Emefiele, as he was not under their investigation. In fact, they alluded to the fact that, the continuous harassment of Emefiele was illegal as it was without legal basis.
Meanwhile, Emefiele travelled outside Nigeria before the 2022 Christmas, for his annual vacation, with the imprimatur of his Boss, Buhari. He returned in mid January.
Due to the ugly developments around Emefiele’s crisis, the Presidential Campaign Council of the Peoples Democratic Party (PDP) alleged that some politicians were behind the travails of the now suspended CBN governor.
The leadership of the party said those who were “after” Emefiele should be careful of its implications on the country’s economy: “This is especially on the backdrop of apprehensions that inordinately ambitious politicians that run activities with bullion vans and raw cash are out to destroy the nation’s financial institutions, particularly, the CBN, for their selfish political interests.”
At the peak of these, the Mass Interest Project, a coalition of civil society organisations (CSOs), raised an alarm that the life of Emefiele was under threat. It was alleged that the threat to his life was linked to politicians who were against the new CBN cash policy.
The Emefiele saga raised so much dust and ruckus in the polity that drew the interest of many ethnic organisations. The Southern and Middle Belt Leader’s Forum (SMBLF), while calling for the sack of Yusuf Bichi, the DSS Boss, asked, “What is the evidence that the governor of the Central Bank of Nigeria, Mr Godwin Emefiele, is involved in “terrorism financing”? If the allegations against the CBN governor are genuine, why didn’t the DSS present its findings to the president for consideration and necessary action?”
THE TINUBU – EMEFIELE MEETING, HIS ARREST AND CONTINUING PERSECUTION
The then INEC President – elect, in the course of his inaugural speech on May 29, 2023, made an announcement that fuel subsidies were no longer sustainable in Nigeria. Subsequently, on June 9, 2023, he had a meeting with Mr Mele Kyari, the GCEO of the Nigerian National Petroleum Company Limited (NNPCL), and Godwin Emefiele, the CBN Boss.
Immediately the meeting was over, the suspension of Emefiele was announced. What followed on June 10, 2023, was unverified news about his arrest by the Secret Police and DSS. At first, the DSS denied his arrest; but within a couple of hours, its spokesperson, Peter Afunanya, tweeted thus, “The Department of State Services (DSS) hereby confirms that Mr Godwin Emefiele, the suspended Governor of the Central Bank of Nigeria (CBN), is now in its custody for some investigative reasons.”
Afunanya did not provide details of when and how Mr Emefiele was arrested and where he was being kept. It was however gathered that, the banker was picked up from his home in Lagos and then flown to Abuja, guarded by a detachment of operatives. Thereafter, he was driven to the SSS’ headquarters in the Asokoro District of the nation’s capital. Seeing a whole CBN Governor in chains being led like a common criminal is indeed a national disgrace and scandal. I was greatly embarrassed as a Nigerian.
EMEFIELE HEADS BACK TO COURT
Consequently, Emefiele instituted a rights action against the DSS. Delivering judgement, Justice Muazu, held that Emefiele’s continued detention without trial, amounts to a gross violation of his fundamental human rights; but however, that Emefiele failed to prove that his arrest, detention and investigation were unlawful since they were based on a valid court order. Justice Muazu said: “Detention, no matter how small, can amount to a breach of fundamental rights, “Though I am in sympathy with the applicant (Emefiele), but my sentiment will not go far to deliver judgement by granting all the reliefs sought by the applicant”.
“The applicant has not shown that his arrest, detention and investigation were unlawful. “However, I am concerned that the application is not without merit. The applicant is entitled to fair hearing”.
“At this point, the continued detention of the applicant cannot be justified in the absence of any charge against him”.
“Consequently, I hereby make an order, directing the respondents to within one week, charge the applicant to court or release him on administrative bail.”
Yet again, following another application, Justice Kawu also made an order setting aside any purported warrant of arrest obtained or procured by the Respondents, especially the DSS, for the arrest of Emefiele in connection with the allegations of terrorism financing, fraudulent practices, money laundering, threat to national security, before any court.
The court further granted an injunction restraining the respondents, particularly the DSS from arresting, detaining, or interfering with Mr. Emefiele’s personal liberty and freedom of movement; and that he is released from detention.
THE SUDDEN NEW CHARGES AGAINST EMEFIELE: AN AFTERTHOUGHT?
Like a Fandango, the DSS subsequently switched the charges levied against Emefiele to mere illegal possession of unlawful arms. He was accused of illegally possessing a single-barrel shotgun (JOJEFF MAGNUM 8371) without license. On Tuesday, July 25, Emefiele pleaded not guilty to a two-count charge filed against him, before a Federal High Court in Lagos State.
The bail application by Emefiele succeeded, irrespective of the opposition of the Federal government.
In his ruling, Justice Nicholas Oweibo, the presiding Judge, said the charges against Emefiele are bailable. He granted Emefiele bail.
The presiding Judge however ruled that the surety must have landed property within the jurisdiction of the court and must depose to an affidavit of means. Emefiele was also asked to deposit his international passport with the court registry.
The Judge also ruled that the CBN governor should be remanded in the correctional centre, pending perfection of his bail conditions. The case was then adjourned to November 14, 2023 for continuation.
THE GANSTERISM OF THE DSS IN A LAWLESS ERA
The operatives of the Department of State Services (DSS), re-arrested Emefiele, in the premises of the Federal High Court, Lagos, few hours after he was granted bail by Justice Nicholas Oweibo. The days of the locusts are here once again!
The attempt at re-arrest caused a cacophony when Emefiele came out of the courtroom, led by a Squadron Commander from the Nigerian Correctional Service (NCoS). The NCoS was promptly intercepted by DSS operatives, which caused the retreat of Emefiele back into the courtroom.
This happened while Emefiele’s lawyers were busy perfecting his bail conditions. Ruckus ensued when a DSS personnel engaged in fisticuffs over who should take custody of the former CBN governor. It became a fight, as the DSS officers beat up the NCoS Squadron Commander, when he made an attempt to resist DSS from taking Emefiele away from him. He was thoroughly manhandled, his clothes torn.
The situation became so messy and ugly that both the DSS personnel and the NCoS officers corked their guns and were ready to shoot, as court workers and journalists scampered for safety. However, the NCoS retreated following immediate direction from the Controller-General of the NCoS in Abuja. Supposing they had shot live bullets and Judges, litigants, members of the public and operatives of the DSS and NCoS got killed, what next? I do not know. Or, do you?
All this madness took place after the learned trial Judge had directed that custody of Emefiele should be in the correctional centre and not with the DSS. Many Nigerians appreciated this serious situation, but made a mockery of the whole system. Others however trivialized it by concluding that Emefiele’s custody was important because “them know say anywhere him lap, joy go touch boys”. Nigerians!!!
EARLIER CHARGES
The earlier allegations against Emefiele but which were never pursued revolved around some legislations. Terrorism (Prevention and Prohibition) Act, 2022. These have to do with terrorism financing, which under various sections carries sentences ranging from fine to life imprisonment and 20 years imprisonment; and up to winding up a company that is involved.
On the other hand, the Robbery and Fire Arms (Special Provisions) Act, in section 3, and section 428 of the Criminal Code Act, provides for punishment for illegal possession of firearms to a fine and less than 10 years imprisonment.
THE RE-ARREST CULTURE BY NIGERIAN LAW ENFORCEMENT AGENCIES
One of the commonplace routines by law enforcement agencies in Nigeria, which is gradually snowballing into an established culture is the act of arresting an accused person immediately after being granted bail by a Court of competent jurisdiction. This may be seen as a practice to prevent the defendant from disappearing into thin air. But, is this the whole truth behind these sharp, illegal and unethical practices? I answer in the negative, No! What about you?
WHAT DOES THE LAW SAY?
Truth is that these unwholesome acts arise due to the ineffective and inefficient machinery, investigative measures and mechanisms prevailing in the various agencies.
It is pitiable that our criminal investigative departments have since imbibed the culture of lack of diligence and dexterity, resulting to illegal practices and violations of the fundamental rights of citizens. This makes mockery of constitutional safeguards. The culture of arrest before investigation runs contrary to so many fundamental principles of human rights in the Administration of Criminal Justice. Odemwingie Uwaifo JSC (as then was), in Fawehinmi v. IGP (2002) 7 NWLR 606 at 681, said, “In a proper investigation procedure, it is unlawful to arrest unless there is sufficient evidence upon which to charge and caution a suspect. It is completely wrong to arrest, let alone caution a suspect, before the police look for evidence implicating him.”
In NDLEA & Ors v. Bwala (2022) LPELR-56566(CA), on whether arrest and detention before investigation is unconstitutional, Justice FOLASADE AYODEJI OJO, JCA (Pp 26 – 27 Paras F – C), held:
“It has been settled in a line of judicial authorities that it is unlawful to arrest a person until there is sufficient evidence to charge and caution him and that it is unconstitutional to arrest a person pending investigation. In other words, it is unlawful to arrest a person when investigation of the alleged crime is still on and there is no prima facie evidence that the suspect has committed the offence or reasonable suspicion that he has done so. Arrest and detention before investigation is unconstitutional. See FAWEHINMI VS. INSPECTOR-GENERAL OF POLICE (2002) 7 NWLR (PT. 767)606, DURUAKU VS. NWOKE (2015) 15 NWLR (PT. 1483) 417 AND OGOR VS. ROLAND & COMMISSIONER OF POLICE (1983) 1 NCR 343.”
EMEFIELE’S RE-ARREST AFTER THE COURT ORDERED HIS RELEASE: THE LEGAL REGIME
It was gathered that, after Emefiele was granted bail on terms, and his lawyers were perfecting the bail conditions, upon stepping out of the Court room, he was apprehended and arrested again for fresh charges by men of the DSS. Like they always do, he may now be charged with an entirely fresh set of offences, even without prior investigation of same. What kind of piecemeal prosecution (sorry, persecution) is this? Is this how to run a country governed by constitutional safeguards? I believe not. Or, do you think so?
In Military Governor of Lagos State v. Ojukwu (2001) FWLR (Pt. 50) 1779 at 1801, on the Rule of Law—Supremacy of Law and the need for government to conduct its affairs with regards to the law, the Supreme Court, per Andrews Atutu Obaseki, JSC (as he then was), had this to say: “The Nigerian Constitution is founded on the rule of law the primary meaning of which is that everything must be done according to law. It means also that government should be conducted within the frame-work of recognized rules and principles which restrict discretionary power which Coke colourfully spoke of as ‘golden and straight method of law as opposed to the uncertain and crooked cord of discretion’ (see 4 Inst. 41). More relevant to the case in hand, the rule of law means that disputes as to the legality of acts of government are to be decided by judges who are wholly independent of the executive. See Wade on Administrative Law 5th Edition p. 22-27. That is the position in this country where the judiciary has been made independent of the executive by the Constitution of the Federal Republic of Nigeria 1979 as amended by Decree No. 1 of 1984 and No. 17 of 1985. The judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law. It is both in the interest of the government and all persons in Nigeria. The law should be even handed between the government and citizens.”
In UBA PLC & Ors v. Durunna (2015) LPELR-25625(CA), Frederick Ozoakpono Oho, JCA, said, “…this practice of making arrests first before looking for evidence in a manner of speaking is like placing the “cart before the horse” instead of doing it the other way round…”
The subsequent re-arrest and detention of Emefiele is in utter disobedience of the Court order granting bail to Emefiele. For how long, shall we continue to tolerate law enforcement agencies that thrive on the imprimatur of executive lawlessness? For how long? Why can they not learn to obey court orders under our tripartite separation of powers, doctrine popularized in 1748 by leading French Philosopher, Baron de Montesquieu?
In AKINYEMI v. SOYANWO & ANOR (2006) LPELR-363(SC), on whether an order of court must be obeyed, FRANCIS FEDODE TABAI, JSC, at Pp 15 – 15 Paras C – E, had this to say:“It is a settled principle of law that every party to a suit, and indeed every citizen, has an obligation to obey the subsisting Court decision or order in the suit unless and until it is set aside. And the party’s obligation to obey the decision is without regard to his perception about the irregularity or illegality of the decision as long as it subsists. See Alhaji Audu Shugaba v. Union Bank of Nigeria Plc. (1999) 11NWLR (Pt. 627) 459 at 477 where this principle was re-enacted. See Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539; Nigerian Army v. Gloria Mowarin (1992) 4 NWLR (Pt. 235) 345.”
In OKEKE V. IGP & Ors (2022) LPELR-58476(CA), pronouncing on whether the Police can deprive citizens of their liberty while the case against them is still being investigated, CHIOMA EGONDU NWOSU-IHEME, JCA at Pp 9 – 9 Paras D – E, echoed:
“The law does not give the Police unbridled power to deprive citizens of their liberty while the case against them is still being investigated. See EVANGELIST BAYO JOHNSON V. E. A. LUFADEJU & ANOR (2002) 8 NWLR (PT. 768) PG 192 at 218 B – C.”
CONCLUSION
It is clear to me that Mr. Godwin Emefiele’s rights have been grossly and wantonly violated with impunity under the thin guise of investigation. What manner of investigation? The order of the Court granting him bail has since been rendered futile by his subsequent re-arrest and detention. The DSS’ wanton acts of brigandage throws us back into the ignoble Hobbessian State of Nature, where life was short, solitary, nasty and brutish. So disgusting. So shameful. So horrific.
Godwin Emefiele’s offences (and Bawa’s, if any), as already charged, are bailable (see sections 35 and 36 of the 1999 Constitution as amended). As regards Bawa’s alleged offences, we still do not even know till date. By the way, who is afraid of Emefiele? And who is afraid of Bawa? And why? I do not know. Or, do you? Both Emefiele and Bawa have presumption of innocence enuring in their favour (section 36(5) of the 1999 Constitution as amended). See DAUDA V. FRN (2018) 10 NWLR (pt. 1616) 169 and NKIE v. FRN (2014) LPELR-22877 (SC). Two options are available here to this wobbly and fumbling government that is fast donning the garb of military (sorry, civilian) dictatorship and absolutism: charge Emefiele and Bawa to court; or RELEASE them promptly and unconditionally. Please, sirs/mas, let my people go. Let Emefiele and Bawa go (Exodus 8:1).
