In a democratic polity where the principles of rule of law are well entrenched in the system, it will be working in an anti clockwise direction, an affront and indeed an onslaught on democracy if a person or body of persons however highly placed shall decide to brush aside, downgrade or ridicule a court order… A court of law is never a toothless bull dog, it can bark, bite and brake and may as circumstance warrant eat bones. Justice mohammed of court of appeal in Oshiomole V.F.G.N 2004.
The continuos disobedience of pronouncement of courts and court order by the federal executive government is worrisome. The situation is further worsened by the fact that the orders of the court in question have direct effect on the fundamental rights of nigerians. The case of former national security adviser, retired col. Sambo Dasuki and Ibrahim Yaqoub El Zakzaky, the leader and founder of Islamic Movement in Nigeria(IMN) has generated a lot of concerns at both national and international level. Efforts have been made by various stakeholders especially lawyers to bring an end to this unconstitutional and arbituary detention agaisnt several orders of courts of competent juridiction granting bail to the accussed.
The federal executive government has left no stone unturned In proving that the policies and stand points of the federal government are above the rule of law. Recently the attorney general of the federation in an interview granted to voice of America, Hausa radio service, attempted to justify the refusal of the federal government to release Rtd. Col. Dasuki. He stated that the allegation against Col. Dasuki was a matter of public interest overriding individual rights. He leveraged his aguement on the consensus of the world view that matters affecting the collective good and interest of the people or nation must be treated diffrently. This justification has not only brought to limelight the inherent defects of our legal system, but also the apparent consequencies of executive excesses on a developing democratic polity such as Nigeria. This was rightly captured by Louis brandeis when he wrote,
if government becomes a law breaker, it breeds contempt for the law, it invites every man (or woman) to become a law unto himself (or herself). It invites anarchy.
It is against the backdrop of these reoccurrence of acts by the executive which portray total disregard for the judiciary that l undertake this enquiry and analysis, to underscore the damaging and dampening effects of this unconstitutional acts on the future of our country`s young democracy.
As a result of the interim report of the investigative committee on arms procurement recommending the arrest of all indicted persons in the arms scam. President Buhari directed the relevant institutions to arrest and bring to book all persons who were found complicit in the arms scandal. This led to the arrest of the Rtd. Col. Dasuki. He is currently facing charges before the Federal Capital Territory high court in Maitama and Federal High Court Abuja division over his alleged complicity in illegal diversion of $ 2.1 billion meant for the purchase of arms to combat terrorism in the north and alleged illegal possession of fire arms.
It is sad to note that despite the arraignment and grant of bail by several courts of competent jurisdiction within the country, the federal executive government has blatantly refused to honour and enforce these court orders. The federal executive government has not only maintained it’s obstinate stand point against orders of local courts but also agaisnt the decision of the ECOWAS court. The recent refusal of the executive arms of government to honour justice Ijeoma Ojukwu’s ruling on dasuki’s bail application has raised a lot of questions concerning the motive behind the continuous detention by the federal executive government .
The case of sheikh Ibrahim El-Zakzaky is considered by many as another example of executive vendetta on perceived enemies. El-zakzaky’s arrest and detention followed a violent clash between his followers and the convoy of the Chief of Army staff. Lt. Gen. Tukur Buratai in Zaria on december 14 2015. Despite the arraignment and several orders of the court granting bail to Ibrahim El-zakzaky, the federal executive government has again refused to obey or honour the orders of courts. This questions the intergrity of the “change mantra” on which this present government found it way to power. Integrity taken too far may become dangerous where the rights of citizens are involved.
To this end, this grandstanding disposition of the federal executive government against the orders of courts is contrary to the principle of the rule of law. A.V. Dicey in his famous book introduction to the study of law of constitution stated that the rule of law is based on the three “pillar principles” that (1) legal duty and liability to purnishment is determined by the ordinary law not any arbitrary official fiat, government decree or wide decretionary powers (2) dispute between citizens and government officials are to be determined by ordinary court applying ordinary law (3) fundamental rights of the citizens such as right to personal liberty, freedom of association etc. are rooted in the constitution and are not dependant on any abstract constitutional concet, declaration or guaranty.
It is on this foundation that the Nigeria’s democratic policy is established. A derogation from any of the “pillar principles” of rule of law amounts to rule of men. The present democratic dispensation came to limelight as a watershed from a prolonged military dictatorship. Hence, violation of the fundamental right of the citizens cannot be justified on the basis any abstract constitutional concept.
The failure of the executive to obey court orders in respect of dasuki and the El-zakzaky case is a blantant volation of the rule of law and section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 36(5) of the constitution of the Federal Republic of Nigeria provides that;
Any person who is charged with a criminal al offence shall be presumed innocent until he is proved guilty.
Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any person the burden of proving particular facts.
In the case of Commissioner of police V. Tobin, the court held interalia that:
no court of law worth its sault (name) derives a joy from seeing or allowing offenders escape the penalty they richly deserve. However until such offenders are duely proved guity beyond any reasonable doubt under the appropriate law by a court of competent jurisdiction they should be entitled to walk about In the streets, tread the Nigerian soil and of course breath the Nigerian air as free and innocent citizens of this God`s own country, Nigeria.
This is a judicial interpretation of the provision of section 135(1) of the Evidence Act which fixes the standard of proof at “proof beyond reasonable doubt. The accused has no legal duty or obligation to establish his innocence because the law already presumes his innocence.
In the eyes of the law Col. Sambo dasuki and El-zakzaky are innocent not having been convicted by any court of competent jurisdiction in Nigeria . They are entiltled to their constitutional right of bail having satisfied the minimum legal requirement of law for grant of bail. It is my submission that the federal executive government has failed in its primary constitutional duty to uphold the provision of the constitution. No grieviance, world view, stand point and threat whether real or imagined can justify an infringement on the rights of citizens against the provisions of the constitution and other laws enacted by the legislature.
The court is last hope of the common man. With the current trend of disobedience of court orders by the federal executive government , the common man is left with no hope of justice. It becomes very pathetic and hopeless where persons entrusted with the legal duty of protecting the rights of citizens become violators and the comtemptors of the law. The courts have emphasized and re-emphasized the bindingness of the decisions of the court. In Oshiomole v.F.G.N the court stated that;
The decision of a court of competent jurisdiction no matter that it seems palpably null and void, unattractive or insupportable remains good law and uncompromisingly binding on the parties until set aside by a superior court of competent jurisdiction.
Therefore, the proper action that the federal executive government should take is the exercise it’s right of appeal and thereafter apply for stay of execution rather than embark on a battle of means and supremacy. The history of Nigeria is littered with instances of men who attempted to mortgage our democracy for their selfish interest. They all tried at some point, but none ever succeeded. Not even Abacha`s autocratic rule or obasanjo’s years of ” Oga at the top” style or Jonathan executive excesses could hold Nigeria’s democracy to ransom. They all left their exaulted positions and Nigeria`s democracy continued to thrive. In the words of Abraham Lincoln:
we the people are the rightful masters of both congress and the court not to overthrow the constitution, but to overthrow the men who pervert the constitution.
All hands must be on deck to ensure that this blatant disregard for the judiciary and rule of law is not allowed to grow deep roots in our time. The federal executive arm of government must respect the provisions of the constitution and do the needful.
Philip John Philip Esq., Legal practitioner /strategist