May 9, 2019

The Nigerian media, constraining laws and justiciability of statute (2)

Femi Falana

This is the second instalment of the paper presented by Femi Falana, SAN, at the Press Freedom Conference in Nigeria on Violent Extremism, Rule of Law and the Media held at Abuja on May 3, 2019

By Femi Falana

THE other day, the Police arrested a journalist, Mr. Samuel Ogundipe of the Premium Times stable for publishing a confidential letter addressed to the then Acting President, Professor Yemi Osinbajo by the iInspector-General of Police.

Femi Falana, SAN

Even though the case was later withdrawn and struck out by the trial court the charge could not have been sustained as the sources of public records obtained from public officers are protected by the Act while the Official Secret Act and other anti media laws cannot be invoked to justify denial to official records. In the same vein, the use of state machinery to intimidate journalists has been outlawed. Consequently, all public officers who feel that they have been defamed are at liberty to sue journalists and media houses as they can no longer charge journalists with any offence under the penal code for embarrassing them.

Right to free and compulsory basic education: When Nigeria had not stumbled on oil wealth, the Obafemi Awolowo regime in western region (now comprising Lagos, Ogun, Oyo, Osun, Ondo, Ekiti, Edo and Delta states) made education free and compulsory for every child. Incidentally, each of the governors in the eight states is a beneficiary of the education-for-all-policy of the old Western regional government.

The media should join issues with such governors and their colleagues in other regions for implementing policies that have restricted education to the children of the rich alone. This has become necessary in view of the fact that the abandoned children of the poor have made it impossible for rich children and their parents to live peacefully in their mansions and ride in their bullet proof limousines without fear.

It is time the governors and their colleagues were reminded that the Universal, Free and Compulsory Education Act has since 2004 imposed a duty on the federal and state governments to provide free and compulsory education for every Nigerian child from primary to junior secondary school. Incidentally, public officers who say that free education cannot be funded by the government are apostles of free market economy. But in capitalist countries where free market is advanced, the system is organized in a way that children of the poor can access education at the expense of the State while the rich can educate their children and wards in expensive schools.

Through the universal health care insurance scheme funded by the State the poor can access health in the public hospitals while the rich can afford to go to well equipped private medical centres in any part of the world. A government that cannot educate its citizens and provide basic necessities of life cannot be expected to govern in an atmosphere of tranquillity. To paraphrase Peter Tosh, the government can no longer talk of peace without justice for the majority of our oppressed people.

The President’s private visit: A fortnight ago, it was announced by the Federal Government that President Mohammadu Buhari had embarked on a 10-day private visit to the United Kingdom. The terse statement has generated some reactions from many groups which have questioned the secrecy surrounding the private visit. The official claim that the President is not on vacation has failed to address the constitutional implications of the privacy of the visit of the Head of the Federal Government which is administered on the basis of accountability and transparency. Under the current democratic dispensation, the movement and activities of the number one public officer in the country cannot be shrouded in secrecy.

Whereabouts  of the President

In fact, the statement made by the Senior Assistant to the President on media affairs, Mr. Garba Shehu to the effect that “the President can rule from anywhere” is a sad reminder of a similar statement credited to a former Justice Minister, Mr. Mike Aondoakaar, SAN, who once said that the President of Nigeria could govern the country from the grave. The latter’s reckless statement was actually made when Nigerians were trying to locate the whereabouts of the President.

However, we have left that era of uncertainty caused by the secret or private visits of the nation’s President. It is perhaps pertinent to remind the Presidency that it was the secret visit of the late President Yar’adua to a Saudi medical centre that led to the invocation of the doctrine of necessity and the subsequent amendment of the Constitution.

No doubt, the President is entitled to embark on local and foreign trips to attend the engagements of family members and friends like other citizens. But the President is not permitted by the Constitution to abandon the enormous responsibilities of his office for 10 days on account of a private visit to the United Kingdom or any other country whatsoever. Since President Buhari’s private visit to the United Kingdom for an undisclosed mission has made it impossible for him to preside over the meetings of the Federal Executive Council and perform other functions of his office he ought to have transmitted a letter to the President of the Senate and Speaker of the House of Representatives in compliance with section 145 (1) of the Constitution so that the Vice President can run the country pro tempore as Acting President.

Having regards to the facts and circumstances of the controversial private visit of President Buhari he is deemed in law to be on vacation or leave of absence for 10 days. Whether the President is on vacation or not it is not in dispute, the issue is that he is unable to discharge the functions of his office for 10 days. To that extent, the President has to comply with section 145 (1) of the Constitution which states that, “Whenever the President is proceeding on vacation or otherwise unable to discharge the functions of his office, he shall transmit a written declaration to the President of the Senate and the Speaker of the House of Representatives to that effect, and until he transmits to them a written declaration to the contrary, the Vice President shall perform the functions of the President as Acting President.”

It is now the law that the President is required to send a letter if he is going to be away from duty post for up to 21 days. Section 145 (2) will be automatically invoked to transfer the powers of the President to the Vice President as Acting President if the President is unable to transmit a letter to the leadership of the national assembly once he abandons his duty for 21 days. In other words, while the President shall transmit a letter to the national assembly whenever he is proceeding on private visit or vacation even for one day he is not required to transmit any letter under section 145(2) of the Constitution.

Emefiele’s reappointment good news for farmers- NECAS Chairman

The salaries and allowances of federal legislators

Recently, the media reported that the outgoing Senate president had given details of the budget of the National Assembly. But the jumbo emolument of the senators was not disclosed in the so called details. Since then, Senator Sola Adeyeye has confirmed the disclosure by Senator Shehu Sani that the running cost of each senator is N13.5 million. But the distinguished senator wants us to thank him for influencing former Senate president, Senator David Mark to reduce the running cost from N20 million to N13.5 million. It is doubtful if Senator Adeyeye is not aware that the fixture of the running cost is a violent violation of section 70 of the Constitution which has vested the Revenue, Mobilisation, Allocation and Fiscal Commission with the responsibility to fix the salaries and allowances of members of the National Assembly.

How Buhari junta obeyed court orders to release detainees from custody

Buhari moves to reappoint Emefiele as CBN Gov

At the 30th anniversary ceremony of the Committee for the Defence of Human Rights held in Lagos last week, I did say that whereas the Buhari military junta complied with orders of courts for the release of detainees the same could not be said under the current political dispensation. A senior lawyer in the civil rights community has accused me of trying to flatter a military junta which ousted the jurisdiction of the courts with respect to civil liberties. But since we are dealing with a serious aspect of the struggle of the Nigerian people against military and civilian despotic rule it is pertinent to put matters in proper historical perspective in responding to the charge.

Apart from handling fundamental rights cases under the Buhari military dictatorship I was detained without trial under the obnoxious State Security (Detention of Persons) Decree No. 2 of 1984. However, I can say without any fear of contradiction, that all those whose detention was declared illegal by the courts were released by the military dictator. Ironically, the elected Buhari administration has continued to ignore the orders made by municipal and regional courts for the release of detainees. In the same vein, the orders of courts admitting criminal suspects to bail have been treated with contempt. Since some of the victims of such abuse of power are my clients I believe that I am in a vantage position to speak authoritatively on the subject matter.

During the military era the Constitution was suspended while fundamental rights were put in abeyance. In particular, the Armed Forces and Police (Special Powers) Decree No 24 of 1967 legalised the arrest and detention of any person involved in the breach of national security. The law became spent and was repealed to pave way for democratic rule in the second republic. But when the military returned to power in December 1983 the State Security (Detention of Persons) Decree No 2 of 1984 was promulgated by the Buhari junta to authorise the detention anyone who contributed to the economic adversity of the nation or who was concerned in act prejudicial to state security or in preparation or instigation of such acts.

For the avoidance of doubt, Section 4(1) of Decree No 2 had provided that “No suit or other legal proceedings shall lie against any persons for anything done or intended to be done in pursuance to this Decree.” Notwithstanding the ouster of the jurisdiction of the courts, a number of judges did not hesitate to order the absolute or conditional release of detainees whose arrest and incarceration could not be accounted for under the preventive detention legislation. Some of the habeas corpus or fundamental rights cases decided by the Lagos State High Court during the period include the following:

  1. Lamina Lawal Arowoye & 6 Others v. Inspector-General of Police (Suit No: ID/14M/84)

The 7 Applicants were detained under Decree No 2 at Ita Oko detention centre. The detention of the detainees was challenged at the Lagos high court. In the judgment delivered by Wale Oshodi J. on 6/4/1984 the detention was declared illegal, null and void on the grounds that that “The Decree No. 2 of 1984 provides that the detainees must be concerned in act prejudicial to State Security or in preparation or instigation of such acts. But the purported Orders Exhibit ‘A’ to ‘G’ stated that the detainees were detained for acts prejudicial to public order”.

Release from  detention

  1. In Chief Sunday Ogunyade v. The Inspector-General of Police & 2 Ors. (Suit No: ID/15D/84)

The Applicant were detained at Ita Oko detention centre under Decree No. 2 of 1984. They sued the defendants to justify their detention. In the judgment delivered on 11/5/84, G.O. Obadina J. (as he then was) ordered that the Applicant be discharged and released from detention forthwith on the grounds that “the signature on the Order, Exhibit ‘A’ is in a photocopy. The Order was not certified as required by Section 110 (1) of the Evidence Act that it is a true copy of the Order made by the Chief of Staff, Supreme Headquarters. In the circumstance, one cannot resist having a doubt as to whether the Chief of Staff knew anything about the detention. Doubts of this nature should not feature in a matter that affect the liberty of a citizen. I am therefore of the view that the Order, Exhibit ‘A’ is thoroughly defective on its face and I therefore declared that it is illegal, null and void and of no effect”.

  1. Maxwell Okudoh v. Commissioner of Police, Lagos State Police Command (Suit No: M/32/84)

The Applicant was detained at Mushin Police State in Lagos under Decree 2 of 1984. He approached the Lagos high court to secure his release from custody.