*It is difficult to fight corruption aggressively without a few excesses but disobedience of court orders under any guise is a naked dance in the market square.
By Dr. Ugoji Egbujo
T he ascension of Buhari is a lucky break for the country. Everyone , including the judiciary, must support the current efforts to bring treasury looters to book, make crime expensive and restore order
The president , we are told, is entitled to his opinion. But opinions can be wrong, very wrong. An official’s suitability for a public position can be assessed by the quality of opinions he holds. The president thinks that a certain man who has been granted bail by a high court is a flight risk. So the court has to be disobeyed or disregarded, somehow?
An expressed opinion of the president is not the opinion of a barber in Oshodi. It’s unhealthy to imply that the courts are lenient on corruption. It is ridiculous to suggest they can’t do their job well. The president is perhaps well intentioned but certain safeguards must remain sacrosanct, inviolable. A president’s expressed opinion can make what was once viewed as a wave of overzealousness or tactlessness look like state policy.
The constitution thinks that all accused persons are innocent until the state can prove its charges against them. If they are innocent then I think they possess same citizen rights as the president. The rule of law is meaningless if the president , like all citizens, isn’t subject to the law. Being subject to the law entails legal obligations , and rights in legal protections. And the constitution thinks that the president should defend and promote the rights and freedoms of all citizens including the liberties of accused persons even as the government insists that treasury looters must not be spared.
But because the law suspects that there may be accused persons whose admittance to bail would jeopardize public safety or the judicial process , it has room for judges to refuse bail to a small category of accused persons . That exception doesn’t change the character of bail as a right , after all most rights recognized as rights aren’t absolute. Powers have been separated for good reasons, monarchies were tyrannical. So when a judge trained to sift facts and apply the law grants bail to an accused he thinks the accused does not pose significant threat to public security and to the judicial process regardless of what the prosecution may believe.
In granting bail , the judge exercises powers vested in him by the constitution to protect citizens from the presumption of guilt, from the exuberance and tyranny of prosecutors/executive. Constitution democracies think that a judge is better suited to decide who should be granted bail than a president. The idea that the president in being elected has a mandate that entitles him to shove obstacles posed by the law aside while seeking perceived common good is erroneous. The powers of a judge are given her by the people.
But ordinary citizens are allowed to disagree with judicial decisions. The president is a citizen , we have been reminded, and he has expressed displeasure with bails granted some persons. But the ordinary citizen is not permitted to disregard the decision of a judge. The constitution forbids the president , and his officials, that prerogative.
He has to abide by judicial pronouncements while he seeks judicial redress, if available. He is not permitted to hold the decision of a competent court in contempt. The president can hold a negative personal opinion about the decision of a court but he is charged by the constitution to uphold the law and promote justice. The law is what the judiciary says it is. Promotion of justice entails not just submission to court decisions but the mobilization of the citizenry to obey the courts and respect judicial pronouncements as a matter of high civic duty.
When crime fighting agencies and their prosecutors in Nigeria find zeal they dwell on dramatization of arrests and investigations. They play to the gallery, display coarseness and humiliate suspects . They trample on rights of accused persons by placing real and imagined evidences before courts to seek their remand in prison custody.
They often lack the painstakingness to investigate diligently and lack the resilience and stamina for proper determined prosecutions . So when a suspect is granted bail they literally expire and the case stagnates, drifts and dies. They feed the frenzy by their sensationalism but undermine real efforts to restore order by their ineptitude. The judges are not saints but when prosecutors come with commotion and no substance what can they really do?
This is the season of anti-corruption. The season when rights of accused persons can be trampled and any moans drowned by cheers. The treasury has been looted. The public is incensed and baying. Some have suggested that the niceties of rights and rule of law can be dispensed with to deal with looters and other trouble makers , to banish impunity. Some of them are those who haven’t stopped referring to our president as a dictator. The president must be careful.
Against the background of existing defects in our criminal justice culture and the mood of the public and the zealotry of crime agencies , that president Buhari’s opinion on bail is particularly dangerous. The president whose body language, we are told, moves mountains, has, in voicing this opinion , inevitably nudged the judiciary in the direction of punitiveness and circumscription of the rights of accused persons. It could prove telling because our judiciary is fairly pliable.
The repercussions can be wide. Prison inmates live in unspeakable conditions. Our prisons are choked. The majority of inmates are accused persons on trial, yet innocent, who haven’t been granted bail. The president’s opinion will not send a message of prison decongestion to the judiciary.
When a judge grants an accused person bail he emphasizes the innocence of a yet to be convicted person. When prosecutors seek the remand of persons on trial in custody they must shoulder the enormity of the duty to show why the freedom of an innocent man must be curtailed. When a president publicly disagrees with the decision of a judge to grant bail to an accused person he must worry about the consequences of holding judges in contempt and of precipitating a rash of bail refusals.
If his opinion has the potential of validating the roguishness of some agencies that have disregarded decisions of high court judges , then it is especially dangerous. If the president’s opinion is read as support for agencies that have flagrantly disobeyed orders of court , then those visibly worried about about the return of tyranny are not paranoid.
When law enforcement agencies in broad daylight disrespect decisions of judges every right thinking citizen should show concern. When the president tacitly endorses the rascality of these wayward agencies by suggesting that the decisions of judges may sometimes not be worthy of respect then disaster looms. The president must clarify his position.
It is true that when crime has taken control of the street due process concerns give way to crime control ethic. It is true that where the criminal justice structures are weak and where impunity is entrenched a few excesses would be tolerable for the restoration of order. It is true that the people elected Buhari because they wanted someone tough on corruption and crime. But if there is any one president with whom disobedience of court order should not be associated then it should be Buhari. Haunted by a certain past and surrounded by skeptics and wary believers, Buhari should be fleeing from all appearances of tyranny.
“Didn’t they say he is born again?”- his opponents have started mocking. An alcoholic desirous of proving his redemption stays away from everything green, and far away from green bottles. The president is determined to stem corruption but he should also be interested in foreclosing tyranny. It is difficult to fight corruption aggressively without a few excesses but disobedience of court orders under any guise is a naked dance in the market square.
When prosecutors know their onions and discharge their duties dispassionately , they will focus on getting quick convictions; they will rely less on remands as punishments. I do not support the activities of Nnamdi Kanu and his IPOB. I think that there exist in public domain sufficient evidence to charge him for serious offences.
I think that his investigation should have been concluded before his arrest and there was no need to keep him detained for months before bringing him before a high court. In disregarding orders of courts to let him out on bail, in keeping him detained for so long, in feeding his supporters with excuses to cause needless commotion in many parts of the country agitating for his release , the government politicized a straight forward , simple case.
There is another worrisome trend. A suspect is charged and granted bail. He is then rearrested, charged again for new offences, and granted bail. And he is re-arrested again on ‘fresh charges’ . It is legally acceptable that a suspect can be charged for many offences and every time he is charged he may be arrested and has to seek bail afresh. But justice ought not to be persecutory. Justice should be fair to the accused. Any bunch of offences can be split into a multitude of charges if malice is the motive.
The prosecution can decide not to consolidate a 50 count charge and rather take them singly, separately , one every month; the accused can spend the better part of 12 years being arrested and securing bail. That may not be illegal but that would be persecutory. Criminal justice must seek to punish quickly and reintegrate. Criminal justice is societal moral lesson.
When Ribadu, imbued with patriotism, ran EFCC with vigour and determination, he trampled on rights and freedoms in his effort to change the society. Because the EFCC was not founded on values, it routinely flouted rules and broke laws. It failed to evolve into anything enduring but remained a pliable tool fit for good and bad purposes. When circumstances changed, as circumstances often do, and Ribadu became prey rather than predator, he could not submit himself to the justice he patented.
He sought refuge in rights and rule of law and fled into exile. Under Ribadu, EFCC kept some Nigerian youths in illegal detention for upwards of 2 years without trial. If Ribadu was certain he would be tried quickly and fairly he may not have fled to exile. When institutions are founded on solid values everyone benefits , ask Nuhu Ribadu.
The ascension of Buhari is a lucky break for the country. Everyone , including the judiciary, must support the current efforts to bring treasury looters to book, make crime expensive and restore order. But rights and freedoms of no citizen must be sacrificed on the altar of ‘anti-corruption’. The anti corruption war is best fought lawfully. Our institutions must be built on sound values.