SAYS DISOBEDIENCE OF COURT ORDER IS INVITATION TO ANARCHY AND NEVER IN THE INTEREST OF THE PUBLIC
A prominent Civil Rights Advocacy Group- HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) has condemned the Federal government of President Muhammadu Buhari for it’s arbitrariness and lawlessness in the handling of the legal matters involving the leader of the Islamic Movement of Nigeria (IMN) Sheikh Ibraheem Ekzackzaky and the former National Security Adviser Colonel Sambo Dasuki.
HURIWA has also described as lawlessness and an abuse of court process for a Federal High Court Judge to grant from the backdoors the ex parte order to the President to proscribe the Islamic minority group- Shiites Islamic Movement only because the members protested the unlawful detention of their leader by the President for over three years against a binding bail order of the same Federal High Court.
HURIWA described the declaration as a terror group by government of the Islamic Movement of Nigeria as an act of despotism and wondered why the Federal High Court whose bail orders the President disrespected could at the same time let itself be used as an instrument of authoritarianism in seeking to criminalise civil protests by the Shiites Islamic group. “The action of the Federal High Court in granting the ‘jankara market’ injunction against Shiites Islamic Movement is a great disservice to our constitutional democracy and will harm the image of the judiciary for a long time to come”.
HURIWA also specifically carpeted the ministerial nominee Abubakar Malami the ex-justice minister for defending his unjust and illegal counsel to President Muhammadu Buhari to disobey court orders releasing on bail the duo of El-Zaczacky/wife and Colonel Dasuki. HURIWA calls the performance of Malami at the ministerial confirmation hearing as the ‘display of the arrogance of power’ even as it reminded Malami that power is transient.
In a statement by the National Coordunator Comrade Emmanuel Onwubiko and the National Media Affairs Director Miss Zainab Yusuf, HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) stated as follows:
“At the Senate’s screening on Friday, July 26, 2019 the immediate past Attorney-General of the Federation, Mr Abubakar Malami justified the continuing detention of certain persons in disobedience of several court orders. Quoting him verbatim:
“Minority Leader spoke of section 36, 37, 39, among others of the Constitution as it relates to the rights of individuals which he believes I have a responsibility to protect. I concede that I have a responsibility to or I have had a responsibility as the Attorney general of the Federation to protect individual rights. But looking at the provisions of section 174 of the Constitution of the Federal Republic of Nigeria, I want to reiterate and state further that the office of the Attorney General is meant to protect public interest and where the individual interest conflicts with the public interest, the interest of one hundred and eighty million Nigerian that are interested in having this country integrated must naturally prevail and I think that position has been very well captured by the apex court that has stated in the case of Alhaji Asari Dokubo v. the Federal Government of Nigeria that where an individual interest conflicts the public interest, the public interest naturally prevails”.
It is important to begin from the premise of Mr Malami. The so-called Section 174 Constitution of the Federal Republic of Nigeria (CFRN) 1999 (as amended) does not confer unlimited powers but only gives the Attorney-General of the Federation wide powers in very limited area, namely to “institute and undertake criminal proceedings’’, “take over and continue any such criminal proceedings” and “discontinue at any state before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person”. Section 174(3) CRN then clearly states that:
“In exercising the powers under this section, the Attorney-General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of the legal process”.
Moreover, it is obvious from the foregoing provision, which unfortunately has been twisted by Mr Malami,that the discretion of the Attorney-General cannot interfere with a conclusive judicial decision like a judgment or order. The power of the Attorney-General under section 174 of the CFRN does not extend to deciding whether or not a party who has been granted bail should be released or not. The opinion and practice of the former AGF is not only misconceived in law but also an affront on the court, which a law officer should not be associated with.
The case of Alhaji Asari Dokubo v. Federal Government of Nigeria cited by Mr Malami does not support his position in any way. First and foremost, it must be mentioned that both the Federal High Court and the Court of Appeal REFUSED the bail of the Defendant in that case and the eventual decision of the Supreme Court was based on two KNOWN principles of law: the criteria for grant of bail and the rule that an appellate court would not interfere with a concurrent finding of lower courts. It was the decision of the court not to grant bail.
The case is quite different from the situation being dishonestly propounded and dangerously brandished by the present day government. This, again, raises the question of whose duty and responsibility is it to determine what public interest is? This is purely a legal question which only the courts have powers to answer.
It must be stated that judicial powers in Nigeria are vested in the courts by virtue of section 6(1) of the CFRN and not the executive arm of government. For avoidance of doubt, section 6(6) of the CFRN clearly outlines the items to which the judicial power relates to includes all forms of dispute. It is not in the good image of the executive to lose a matter in court and go on a destruction voyage of self-help in the name of public interest.
Refusal to obey court order is contempt of court and no more. It is equally not logical to cite the decision of a court as the basis for disobeying the decision of another court. The known law is that however stupid a decision of a court is, it has to be obeyed. The options left to an aggrieved party are either to apply to set it aside or appeal against same. Anything otherwise is contempt of court, which is an invitation to anarchy.
In the case of Luois B Ezekiel Hart v. Chief George I Ezekiel Hart, the Supreme Court of Nigeria held thus:
“It is contempt to disobey a judgment or order…..
To allow Court orders to be disobeyed would be to tread the road toward anarchy. If orders of the Court can be treated with disrespect, the whole administration of justice is brought into scorn …. If the remedies that the Courts grant to correct… wrongs can be ignored, then there will be nothing left for each person but to take the law into his own hands. Loss of respect for the Courts will quickly result into the destruction of our society.”
The primary way in which the law guarantees both individual rights and the public interest is by granting the right of every individual to certain basic rights. The secondary way in which the law maintains a balance between individual rights and the collective or public interest, is to specifically provide for individual rights subject to broad range of exceptions. This is the pattern in every society’s legislation, be it the grundnorm, primary or subsidiary legislation. Also worthy of note is that public interest does not exist in vacuum, it is the aggregate interpretation of law or set of laws and not some arbitrary practice or display of personal idiosyncrasy of a leader. Public interest does not derogate from but aligns with the rule of law otherwise the enforcement of any such so-called “public interest” will be a negation of the will of the people who are assumed to be the makers of the law. “
HURIWA therefore based on the above legal opinion absolutely condemns in it’s entirety the decision of the current administration to persistently disrespect court orders on these citizens. Also the decision to procure an ex parte declaration of Shia as a terrorist group is a breach of the constitution which guarantees freedom of Religion in chapter 4 of the constitution.
HURIWA accused President Muhammadu Buhari of abuse of office by using undue advantage of his office to de-legitimise a group of the same faith group only because they are minority whereas the President is Sunni which is majority amongst the Islamic faith group. This declaration of Islamic Movementof Nigeria is an attempt to use the powers of the Nigerian state to achieve personal agenda of a religious group opposed to Shia.