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President Buhari and his ‘Guantanamo’ Argument

Dr. Ugoji Egbujo

President Buhari took law to a gathering of lawyers. And he came clutching what looked like  a supreme court decision. When did  the president develop appetite for legal gymnastics?  And he is now striving to be a contortionist. Igbos know that a frog doesn’t make dashes in the afternoon in vain.

The president, despite the look of detachment, must be wary of the ghosts of a distant past. He prefers the new status of a born again democrat. But that status sits uncomfortably with  instances of blatant  disobedience of court orders. So he came to  the learned men not to seek forgiveness but to exonerate himself.

If the president didn’t misspeak then he wanted the lawyers to know that the security of the country could trump individual freedoms in special circumstances.

And that the law permitted indefinite detention of dangerous suspects to safeguard the society. He bragged that he was   supported  by the supreme court. He was evidently honest about his convictions. But I would be surprised if he sought and got the support of his vice president for this awkward position. Because what the president unwrapped before the lawyers was everyday legal chewing gum presented as holy communion.

President Buhari

If the president had broadened his consultations and looked before leaping he would have saved himself  the assault by millions of raised eyebrows.  Professor Osinbajo would have told him the ordinary truth. Every accused person is entitled to bail.

That is the law. Because he is innocent, and  consequently, his freedom should not be denied, until he is found guilty. Yes,  the law  prioritizes the safety of the society over the freedom the accused. But it hands the  ultimate discretion to grant bail to  judicial officers.

In deciding whether an accused person retains an entitlement to bail the judge weighs  a number of issues. Chief amongst them is whether the accused would constitute a significant  security risk to the society based on preliminary evidence and the charges levied against him. If he is an obvious potential  security risk the court would naturally deny him bail. It’s an objective assessment, and the judge gives reasons for his ruling.

When a judge admits an accused person to bail then he has assessed the accused and found him relatively harmless to the society, the continuity of the case and the body of evidence and witnesses. This assessment of risk to public safety as it  relates to accused persons can only be done by judges. The constitution fashioned it that way to curb arbitrariness.  If the president or anyone else has reasons an accused must not be admitted to bail then he must present them to the presiding  judge for consideration through the prosecutors.

When a judge admits a Lagbaja  to bail and the government feels that the judge is in error then the government must appeal the bail ruling. What the government can’t do is to disregard the ruling and pretend that the president or the DSS DG has the capacity to make the assessment better than a judge.  And keep Lagbaja in a dungeon.

So Buhari’s postulation is correct to  the extent that individual rights can be curtailed. But his assumption that he can determine when an accused can be detained indefinitely is flawed.  The usurpation of the role of judges  and disobedience of court orders  by the executive is not supported by the Supreme Court decision he seemed to be clutching to that day.

The president cannot assume emergency powers  without declaring a state of emergency. And a state of emergency would need the support of two thirds of members of the National Assembly.  Let’s leave Dasuki and the Shiites leader out of this. So that we don’t get people unduly emotional.

Imagine that in 2014 the then President Jonathan, rattled by ‘Febuhari,’ received such perverse  legal wisdom from a retired general. And troubled by paranoia and nudged by a standing legion of conspiracy theorists, he assumed such extralegal powers to protect national security from dangerous men. Remember that  there were many fables about Buhari being the sponsor of Boko Haram those days. Many in the ruling PDP  believed that Boko Haram and  the abduction of Chibouk girls were all scripted to embarrass Jonathan. So such a  President Jonathan could have ordered the DSS DG to arrest Buhari ,the  leader of the opposition then.

Then imagine that the DSS DG then had the guts of Mr Lawal Daura. He would have locked  the suspect  away and not briefed the press. The opposition would  have wailed endlessly, and called on their ancestors and the United Nations. They would have  run from pillar to post and then to court.  The DSS probably would  have manufactured piles of evidence to support their delusion that Buhari,despite having been bombed by a faction of the insurgency, was  a master mind of the insurgency.

The prosecutors  would have done the bidding of the misinformed president. They would have asked the court to allow the DSS hold him till eternity for national security reasons. The court would have  shook its head in disbelief and granted him bail. But an irked  DSS would  have pretended the court made no ruling and kept  General Buhari in detention. And when asked, the then  president would have  defended the decision of the DSS to disobey the court and would have cited a certain  ruling of the Supreme Court that national security could trump individual freedoms.

That would have been absurd, ridiculous. But that is the position President Buhari canvassed as law before lawyers at the NBA conference a few days ago.

The rule of law treats the decision of a court of competent jurisdiction as law until  it is set aside by a  superior court. And everyone is bound by law. Even if the president is now a doctor of jurisprudence he must rely solely  on judges to interpret the law for him. While individual freedoms could be subject to national security, the law is clear that the powers to make the determination rests with the courts.

Those who support indefinite detentions because of national security always allude to Guantanamo. The US has detained enemy combatants without trial in Guantanamo bay, Cuba. That facility isn’t meant to hold US citizens. And no one detained on US soil can be kept against the orders of a court even if he is a terrorist.

We must strengthen the laws. And entrench the principle of separation of powers.  Tomorrow is pregnant. Multiparty democracy can’t thrive in Africa if  presidents can order the indefinite detention of citizens and defy courts orders for their release regardless of reason. Tables can  turn pretty quickly. And neither Tinubu nor Oshiomhole would  want to  become  such sitting ducks.


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