By Oluwapelumi Mojolaoluwa Mofoluwawo, LLB, BL, LLM (UK)
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Fundamental Human Rights are inalienable rights conferred on every citizen of any country in the world, by virtue of their being human. These rights are usually contained in the Constitution of every country and in Nigeria, can be found in Chapter 4 of the 1999 Constitution, S33 to S46 in particular. Some of these rights include right to life, right to dignity of human person, right to freedom of expression and press, right to personal liberty, right to fair hearing amongst others. National security on the other hand is a broad, perennially evolving concept that encompasses the protection of a nation’s sovereignty, territorial integrity, and its citizens’ well-being from external and internal threats. It includes but is not limited to military defense, economic security, diplomatic relations, intelligence, cybersecurity and counter-terrorism inter alia. Essentially, national security involves ensuring a peaceful, safe and stable socio-economic and political environment for citizens. However, these two ideals do not often agree.
For instance, in cases of terrorism, insurgency, civil unrest/disorder or other serious offenses that threaten national security, the government often denies suspects bail, to prevent them from interfering with investigations, intimidating witnesses, or committing further offenses. But in some cases, the charges are trumped up and the refusal to grant bail merely serves as punishment to the defendant, and a deterrent to others. This raises the crucial question of balance. How do we balance the individual’s right to liberty with the government’s duty to protect national security? What constitutes a “serious offense” that warrants denial of bail in the context of national security? Are there sufficient safeguards to prevent abuse of the bail denial power? Alhaji Mujahid Dokubo-Asari v Federal Government of Nigeria is a decision that mirrors the intricate balance between the sanctity of human rights and the importance of ensuring national security. The decision, which was not on the substantive matter but on the bail application brought by the defendant in a treasonable felony matter, highlights the complex interplay of the fundamental principles of human rights and national security, particularly in the context of treason and public order.
In 2005, Alhaji Mujahid Dokubo-Asari was arrested and charged with conspiracy, treasonable felony, managing an unlawful society, publishing false statements and, being a member of an unlawful society. He sought bail, which was denied by the trial court. He then appealed to the Court of Appeal and Supreme Court respectively and was as well denied. The meat of his appeal each time was whether or not he was entitled to his constitutionally protected right to bail, and whether the denial of bail was justified on the basis of the prosecution’s claim that his actions and statements constituted a threat to national security.
Bail is a temporary release of a person accused of a crime, pending the determination of the case. In Nigeria, the right to bail is enshrined in the Constitution and further elaborated upon in the Administration of Criminal Justice Act (ACJA) 2015. Section 35(4) of the Nigerian Constitution guarantees the right to bail for persons arrested and detained for an alleged criminal offense. This is in addition to the presumption of innocence provided for by S36 (5) of the Constitution. Section 158 of the ACJA also reinforces the presumption of innocence until proven guilty, making bail the norm rather than the exception. Thus, by law, bail is a right subject to certain conditions, which may be imposed by the court such as the provision of sureties, restrictions on movement, and a deposit of a sum of money. Likewise, bail may be refused in specific circumstances and upon certain considerations. Some of the most important considerations by the Nigerian courts in granting or denying a defendant bail are the:
- Nature of the offense
- Strength of the evidence
- Severity of the punishment
- Likelihood of the accused presenting himself/herself for trial/jumping bail
- Likelihood of tampering with witnesses or evidence
This is however not an exhaustive list as will be seen in the instant case.
What Really Happened
Alhaji Mujahid Dokubo-Asari was a former leader of the Niger Delta Peoples Salvation Front (NDSF) and subsequently became the leader of the Niger Delta Peoples Volunteer Force (NDPVF). He was also a member of the Pro-National Conference Organisation. Along with one Mr. Uche Okwukwu and others at large, he allegedly signed a communiqué that castigated Governors, Local Government Chairmen, and NDDC Directors, accusing them of colluding with the Federal Government to loot oil revenue meant for the Niger Delta people while pursuing personal interests and aggrandizement. This, he claimed, had caused the people to suffer neglect and abject poverty. He cited the recent hike in fuel pump price as a major grievance and threatened to take up arms against the government after lodging a protest with the Pro-National Conference Organisation (PRONACO). The Association also disclosed its plan to incite civil unrest to overthrow the government. Dokubo-Asari was subsequently arrested by the police and arraigned on five counts of conspiracy, treasonable felony, forming, managing, and assisting in managing an unlawful society, publishing false statements, and being a member of an unlawful society, offenses punishable under the Criminal Code Act, Cap 77, Laws of the Federation of Nigeria, 1990.
Evidently, the defendant/applicant/appellant was facing serious charges such as treasonable felony, which’s sentence on conviction is life imprisonment. However, he argued two things- the presumption of his innocence in the matter, which is constitutionally provided for; and his constitutionally guaranteed right to bail. As such, the court had to decide whether these Constitutional guarantees could be suspended due to the Prosecution’s claim that the defendant’s actions constituted a threat to national security.
Bail thrives on affidavit evidence. To file for bail in Nigeria, an applicant comes by way of a motion on notice, supported with an affidavit and a written address. The prosecution then responds where they intend to oppose, with a counter affidavit and a written address. The applicant, as in this case, is also at liberty to respond with a further affidavit. Each party makes their case by way of an affidavit and the exhibits attached to it. The court then rules on it. Since this is not a decision on the substantive matter, the outcome is called a ruling, not judgment. In reaching a decision on bail, a trial court examines the affidavit evidence presented by both parties in light of the considerations for the grant of bail, as was done in Dokubo-Asari v FGN. The highlighted considerations were:
- The nature of the charge;
- The strength of the evidence which supports the charge;
III. The gravity of the punishment in the event of conviction;
- The previous criminal record of the accused if any;
- The probability that the accused may not surrender himself for trial;
- The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him.
VII. The likelihood of further charge being brought against the accused;
VIII. The probability of guilt;
- Detention for the protection of the accused.
- The necessity to procure medical or social report pending final disposal of the case.
On the nature of the charge, the applicant (Dokubo-Asari) was charged with a five-count charge that carried sentences as low as three years and as high as life imprisonment. Treasonable felony was especially a serious offence, which could not be handled with trifle, even as an unproven charge.
On the strength of the evidence that supports the charge, he contended by affidavit that there was no prima facie evidence that he committed the offences for which he was charged while the prosecution insisted that there was overwhelming evidence tying him to the offence. They averred that he had confessed to the commission of the crime in the statement he made to the police upon arrest. He had in the statement confessed to being a member of and managing an unlawful society, as well as threatened to overthrow the government of President Olusegun Obasanjo. The court additionally relied on an interview he had granted to the Independent Newspaper on 10 September 2005 wherein he had said that he would continue to fight until Nigeria disintegrates.
On the gravity of the punishment in the event of conviction; treasonable felony, the overwhelming evidence of commission of which was before the court, carried a life sentence. As such, this consideration was also against him and in favour of the prosecution.
On the previous criminal record of the accused if any, he stated that he had no previous criminal record while the prosecution was silent on this.
On the probability that the accused may not surrender himself for trial, he averred that he would present himself for trial and not jump bail. He additionally undertook to provide credible sureties for bail, and especially persons who could locate him in the unlikely event of evading trial, but the prosecution contended that releasing the accused on bail could put the prosecution of the charge at risk, that the accused was from the riverine area of Delta State and the creeks was an extremely difficult terrain to access, coupled with the fact that other suspects in the matter were at large.
On the likelihood of the accused interfering with witnesses or suppressing any evidence that may incriminate him, while he undertook not to interfere with further investigations, the prosecution in fact he was the leader of a dangerous, armed and militant unlawful society, had access to dangerous weapons and would interfere with the investigation.
On the likelihood of further charge being brought against the accused; he stated that he would not commit any similar offence or any offence at all while the prosecution insisted that he would commit similar offences if granted bail.
On the probability of guilt, he claimed not to have confessed to the commission of any crime while the prosecution insisted he had in fact confessed to the commission of the crimes.
The consideration of detention for the accused’s protection did not come up as there was no such threat to his life outside of custody; and on medical reasons, the prosecution swore that the accused was healthy and was being well taken care off in State facility as was evidenced by his healthy appearance on arraignment. Importantly, the prosecution undertook to conduct a speedy trial and insisted that the grant of bail to Dokubo-Asari, would prejudice national security.
The trial court considered the nature of the offence, the nature of the evidence in support of it, the severity of the punishment which conviction will entail as well as the likelihood of the applicant’s availability to stand trial; in reaching the decision to deny him bail. These are the most important criteria of all, in the grant of bail. Furthermore, the grant of bail is discretionary in nature. As such, a court is not bound to follow an earlier decision else its discretion will be fettered. All it needs to do is to consider the totality of the evidence before it and reach a just decision. Dissatisfied with the trial court’s denial of his bail application, Dokubo-Asari appealed to the Court of Appeal where he was again denied.
The Court ingenuously defined national security in this case, as a threat to overthrow the government, incite violence amongst the populace, and force the country into disintegration. Dokubo-Asari’s actions and threats were described as creating a situation where the government of the Federal Republic of Nigeria could yield to force or expose the public to serious danger. This was without doubt, a national security concern. Thus, the Court of Appeal ruled that the evidence available to the trial judge and before it, namely the documentary evidence – affidavits, confessional statement, communique and interview, proved that the appellant’s acts indeed constituted a threat to national security. According to the Court of Appeal, ‘where National Security is threatened or there is the real likelihood of it being threatened, human rights or the individual right of those responsible takes second place. Human rights or individual rights must be suspended until the National Security can be protected or well taken care of.’ This important dictum effectively widened the scope of exceptions to the exercise and protection of fundamental human rights in Nigeria. By reaching this conclusion, the Court of Appeal essentially qualified all human rights with one more derogation- the instance of threat to national security.
Undoubtedly, ensuring national security is a core mandate of the Nigerian government. Section 14(2)(b) of the 1999 Constitution states that ‘the security and welfare of the people shall be the primary purpose of government.’ And the President as the Chief Executive Officer has the power and responsibility to protect the nation from external aggression and internal disturbances. He fulfils this responsibility through different organs, agencies and representatives of his government such as the Attorney General of the Federation in the instant case. However, ensuring national security may take several forms and require varying methods, and in Dokubo-Asari’s case, it took the form of suspending his fundamental right to bail. This became a landmark instance in which human rights was suspended in a democratic dispensation.
Suspension of human rights were a routine feature of military regimes prior to 1999 and before Nigeria transitioned into full democratic rule. This was often done arbitrarily under the guise of protecting national security. But under a democratic regime, the only Constitutional provision for the suspension of human rights is a state of emergency, with must be justified and approved by the executive and legislature. Although the appellant argued that this was the only lawful instance for the denial of his right to bail, the court tossed his argument as irrelevant to the subject of bail. Certainly, Section 305 of the 1999 Constitution of the Federal Republic of Nigeria empowers the President to declare a state of emergency within the federation or any part thereof in circumstances of public danger, public order, or war. Such declaration is usually contingent upon the existence of a grave threat to public order, safety, or the life of the nation. By arguing that this was the only constitutionally provided instance where his right to bail could be suspended, the applicant challenged the legality of the trial court and the Court of Appeal’s decision. He therefore appealed to the Supreme Court and formulated two issues for determination:
“(i) Whether the Court of Appeal was right when it reached a conclusion of fact that there was acceptable evidence of threat to national security by the appellant in the case put forward by the respondent.
(ii) Assuming (without conceding) that the case of the respondent revealed a strong prima facie case of threat to national security, whether that suspends the right to bail as enshrined in section 35 of the 1999 Constitution.”
The Supreme Court looked at the totality of the case before it and agreed with the decision of the Court of Appeal that the affidavits, Police Diary and the statement made by the accused therein, where he vowed to continue to fight until Nigeria disintegrates, as well as the communique he jointly signed where he called on Niger Deltans to act to overthrow the government; all constituted a threat to national security. And though these documents were not tendered by the prosecution nor attached to its affidavit, the court held that they formed part of the proof of evidence, being in the Police Diary. While one can contend that the court went beyond the purview of what was required and seemed to be helping the prosecution prove its case, the court also noted that the appellant in his affidavits did not controvert the inciting statements. In the exercise of its discretion to grant bail, a court must always consider the weight of the facts deposed to in the parties’ affidavits. Going by this, the court ruled against the appellant on issue one.
On another interesting note, the court noted that while the appellant had also deposed in his affidavit to the fact that the prosecution did not file any proof of evidence alongside the charge against him, there was in fact proof in the court’s record that a lawyer in the appellant counsel’s law firm had deposed to an affidavit stating that they were in receipt of the proof of evidence from the prosecution!
On issue two, the appellant argued that his Constitutional right to bail could not be suspended even if his actions constituted a threat to national security. He also argued that denying him bail requires a formal Declaration of a State of Emergency, an argument equally dismissed by the Supreme Court. The respondent on the other hand contended that national security could outweigh individual rights in some situations, and threat to national security was one of such situations. Additionally, S35 of the Constitution allowed limitations on personal liberty during investigations or to prevent further crimes. The appellant had made statements and issued threats that were pregnant with probable further crimes. Thus, denying bail in this case (treasonable felony) was justified to protect national security. The Supreme Court agreed with the respondent and ruled that Section 35 of the Constitution is not absolute and allows restrictions on liberty under certain circumstances. Also agreeing with the Court of Appeal, the Supreme Court reiterated the fact that ‘the corporate existence of Nigeria as a united, harmonious, indivisible and indissoluble sovereign nation is greater than any citizen’s liberty or right. Once the security of the nation is in jeopardy and it survives in pieces rather than in peace, the individual’s liberty or right may not even exist.’ Thus, the Supreme Court placed national security ahead of personal liberty as a right.
Dokubo-Asari v FGN underscores the competing interests of human rights and national security in Nigeria, and the importance of achieving equilibrium. While the Nigerian State undoubtedly possesses the prerogative to safeguard its interests, it is imperative that such actions are guided by regard and respect for rule of law and international human rights standards. This is important in light of emerging issues of terrorism, insurgencies, mass civil disobedience amongst others. National security must not be seen as a blanket reason for the suspension of human rights. Rather, the government must at all times prioritize the enforcement and protection of human rights and seek to achieve a harmonious coexistence between individual liberty and collective well-being.
Oluwapelumi Mojolaoluwa Mofoluwawo, LLB, BL, LLM(UK) is a Nigerian lawyer and Principal at OM Livingstones & Co. She can be reached on houseoflivingstones@gmail.com and on youtube – Bar Talk with Ola.
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