The Role of Law in Maintaining Sanity and Preventing Impunity in a Democratic Setting (Part 7)

Introduction

In our last outing on this treatise, we x-rayed impunity and disregard for rule of law, as manifested in disobedience of Government and regulatory bodies to court orders. Today, we shall continue with and conclude same. Come with me. 

Impunity and Disobedience to Rule of Law and Court Orders (Continues)

Cases of disobedience to court orders and illegal detention, continue to recur. In fact, in what could be properly termed “selective obedience to court orders”, what the Government does is to choose the judgement/court orders to obey and the ones to disobey. Prominent among such cases was that of the former National Security Adviser, Sambo Dasuki. Mr Dasuki, who was facing multiple charges for alleged diversion of $2.1 billion and illegal possession of fire arms. Although he was granted bail on at least six different occasions by various courts, the Nigerian Government persistently refused to comply with the court orders.

In the wake of his trial, a Federal High Court in Abuja, presided over by Justice Adeniyi Ademola in 2015 ordered the release of Mr Dasuki’s passport, and granted him permission to travel abroad for medical treatment. This order was never obeyed by the DSS. Again, on the 18th day of December, 2015, Dasuki and four others were granted bail with a similar condition to provide a bond of N250 million this time, by Justice Hussein-Baba Yusuf. All the conditions were fulfilled; the court order was also flouted by the Nigerian Government.

In a related case, the same Dasuki, together with former Minister of State for Finance, Bashir Yuguda; former Sokoto Governor, Attahiru Bafarawa; and three others were charged before the High Court of Federal Capital Territory, presided by Justice Peter Affen, by the Economic and Financial Crimes Commission (EFCC) on 22-counts of breach of trust, misappropriation and diversion of funds to the tune of N19.4 billion. They were granted bail on December 21, 2015 in the sum of N250 million each and two sureties, in like sum. All the conditions for his bail were fulfilled, yet the DSS refused to release Dasuki. Consequently, Dasuki approached the ECOWAS court which on October 4, 2016 ordered the release of Dasuki and awarded damages in the sum of N15 million against the Nigerian Government for his illegal and arbitrary detention. Reacting to the said ECOWAS order, the then Attorney-General of the Federation and Minister of Justice, Abubakar Malami, insisted that the Federal Government was not under any obligation to respect it. Reprieve eventually came, Dasuki was released when the Government relented following sustained pressure.

As if the above was not bad enough, the case of Ibraheem El-Zakzaky, the leader of a Shite group, Islamic Movement of Nigeria is also instructive. Mr El-Zakzaky was arrested by the military on December 14, 2015 following a clash between his group (IMN) and officers of the Nigerian Army. He was detained without trial for years, before he was eventually arraigned in Kaduna State. Mercifully, the court ultimately absolved him of all charges, but not before the Abuja Division of the Federal High Court, presided over by Justice Gabriel Kolawole ordered his release on the 2nd of December, 2015, the Judge berating the Nigerian government for violating his rights. The court also awarded sum of N50 million in favour of the detainees, and that accommodation be provided for them and their family. Despite warnings by the court that the Nigerian Government would face further sanctions if it refused to abide by the order for the release of Mr El-Zakzaky and his wife, that decision was never complied with. 

In the same vein, in July 2016, the Supreme Court confirmed the nullification of the controversial transfer in 2006 of the Aluminium Smelter Company of Nigeria (ALSCON) to a Russian firm, the United Company RUSAL. The Government simply ignored the order. To be sure, the violation of the ruling of Nigeria’s Apex Court on the matter did not, however, start with the present administration. This is because the 2016 judgement was the third by the Supreme Court since the questionable sale of the aluminium plant to the Russians by the Bureau of Public Enterprises (BPE) in 2004. 

For example, in June 2004, a Nigerian-American consortium, Bancorp Financial Investment Group Divino Corporation (BFIG), led by Reuben Jaja, was declared winner of the bid for the plant by the National Council for Privatisation (NCP). However, the BPE cancelled the outcome of the bid and disqualified the consortium in controversial circumstances, accusing it of failure to meet the deadline for the payment of 10% of the bid price it offered, in line with stipulated guidelines. BFIG challenged it in court, seeking the enforcement of its right in line with the terms of agreement reached in the pre-bid technical conference by all bid parties. After a prolonged legal battle, the Apex Court on July 6, 2012, unanimously annulled the transfer of the plant to UC RUSAL, with the court declaring as illegal, null and void, BPE’s decision on the basis of the agreement purportedly reached at their negotiations in 2006. The court reinstated BFIG as the authentic winner of the bid.

It was not over, however, as BFIG returned to the court in 2014 with another application, seeking the interpretation and enforcement of the subsisting order against UC RUSAL. BPE, joined UC RUSAL, to oppose the application. However, the Supreme Court, in another judgement in September 2014, directed BPE to “fully enforce and give effect to the meaning and intendment of the (previous) judgement of the Supreme Court. Still, UC RUSAL ignored the order, and proceeded to file yet another application in November 2015, asking the Supreme Court not to only review its July 6, 2012 judgement, but to set it aside altogether, and confirm UC RUSAL as the owner of ALSCON. Expectedly, on July 11, 2016, the Supreme Court again, in a unanimous decision dismissed the application.

However, in flagrant disregard of the Supreme Court’s decision, the then Minister of Mines & Steel Development, Kayode Fayemi, in April 2017 visited ALSCON, when he was shown around the plant by Dimitriy Zaviyalov, the Managing Director of UC RUSAL, the same firm the Supreme Court repeatedly sacked, with the Minister not only undertook to work with the Russian firm to reactivate ALSCON, but also assured Mr Zaviyalov, that Government would encourage the Supreme Court to expedite action on the ruling, to free the complex of any encumbrances.

 The impunity and disobedience of the rule of law, especially on the aspect of refusal to obey court orders, which was prevalent under the Buhari administration, was strongly condemned by well-meaning Nigerians, especially within the legal profession, including the erstwhile the Chief Justice of Nigeria, Walter Onnoghen, who described the failure of government or any party to adhere to court judgements as outright impunity. According to him:

“Anyway, disobedience of a court order is an act of impunity,”

He further opined that the problem of disobedience of court orders, was a matter for the legislature and the executive to address. His words were echoed by a Senior Advocate of Nigeria, Rotimi Jacobs, who asserted that the phenomenon was an abuse of democracy and an invitation to anarchy, adding that:

“My reaction to it is that the court, government, parties, Nigerians must comply with court orders. That is a constitutional duty imposed on every one as stipulated in Section 287 of the Constitution. The section says that judgements of every court of law must be respected. Judgements by high courts; court of appeal and supreme court; must be respected by all persons and authorities. There are also obligations that are imposed on everyone. There is a duty on everyone to obey court orders. And, on no account, should anyone fail to obey court orders. I think the journalists should also investigate why the judgements have not been obeyed. Secondly, have they appealed those judgements? I don’t think any democratic government that is worth its salt should disobey court orders, because it is the basis. If you disobey court judgements, you ridicule the Judiciary, the Constitution, you ridicule everybody, and it is an invitation to anarchy”

Similarly, a former Chairman, National Human Rights Commission, Professor Chidi Odinkalu, berated the Buhari administration for its selective obedience to court orders, stating the implications of the ugly trend, in the following words:

“It is as if government is picking and choosing what court judgements to respect, and the ones not to respect. There are many problems with that; one of which is that people will begin to feel that courts no longer matter. In that case, the only thing that matters is that if you can overcome somebody then you win, but if you cannot, then you will lose. That becomes a circumstance of rule of war, not rule of law. Investors will not invest in the country, because investors want an environment where rules exist and are respected. That is to say if you are on the side that is favoured by the President’s body language, then people will respect you because you can muster political force, but if you are not and you are accused, then you are endangered. When things get to that point, then it is dangerous.” (To be continued).

THOUGHT FOR THE WEEK

“I firmly believe in the rule of law as the foundation for all of our basic rights”. (Sonia Sotomayor)