By Chidi Anselm Odinkalu

On a Friday in July 2005, Bayo Ojo, a Senior Advocate of Nigerian (SAN), quietly absconded from work in an office in Victoria Island, Lagos, from where he functioned then as the president of the Nigerian Bar Association, (NBA). The next working day, a Monday, he turned up in Abuja as President Olusegun Obasanjo’s 4th Attorney-General in five years.

Less than three months after assuming office as Attorney-General of the Federation, on 6 October 2005, Mr. Ojo filed a five-count charge before the Federal High Court against Alhaji Mujahid Asari Dokubo, at the time the self-proclaimed leader of the Niger Delta Peoples’ Volunteer Force, NDPVF. Asari was also a leading member of the Pro-National Conference Organisation, PRONACO. The crimes charged included two counts of treasonable felony, two counts of running an unlawful society, and one count of publishing “a rumour…. which is likely to cause fear and alarm.”

At the time, Asari was a detainee of the Federal Government and widely known to be a leading figure in the Niger Delta militia movement, the activities of whose members caused the country quite considerable reputational and revenue damage.

The background to the charges was a meeting of the Pan-Niger Delta Action Conference/Council, which took place in Samsy Hotel in Benin City, Edo State, on 28 August 2005. The meeting attracted a broad coalition of advocacy groups on the Niger Delta, including NDPVF, Movement for the Survival of Ogoni People (MOSOP), Chikoko Movement, Great Commonwealth of The Niger Delta (GCND), Ijaw Youth Council (IYC), Itsekiri National Youth Council (INYC), National Youth Council of Ogoni People (NYCOP), Civil Liberties Organization (CLO), Niger Delta Women for Justice (NDWJ), Congress for the Liberation of Ikwere People (COLIP), Supreme Egbesu Assembly (SEA), Delta Stakeholder Today Peoples Council, Socialist Workers Party, Federated Niger Delta Ijaw Communities (FINDIC), National Association of Ijaw Female Students, and People with Disability Action Network (PEDANET).

The conference communique, “castigated Governors, Local Government Chairmen and NDDC Directors in connivance with the Federal Government that they looted the oil revenue accruing to the people of Niger Delta while pursuing their personal projects and aggrandizement. This, they felt, had left the people in a state of neglect and abject poverty. They also cited the recent hike in fuel pump price as one of their grievances.”

The communique also called President Obasanjo “dictatorial.” At that time, apparently, Nigerians were not allowed to say such things. The signatories to the communique included Asari and Uche Okwukwu, the lawyer who was to later emerge controversially as factional leader of Ohaneze Ndigbo.

Nearly two weeks after the conference, on or about 10 September 2005, Asari granted an interview to the Independent Newspaper, whose proprietor at the time was widely known to be a governor in President Obasanjo’s party. According to the charges preferred by Bayo Ojo, Asari in the interview uttered the following words: “Nigeria is an evil entity. It has nothing to stand on and I will continue to fight and try to see that Nigeria dissolves and disintegrates and I am ready to hold on to the struggle to see to this till the day I will die. I do not see any reason why I should continue to live with people that have no relationship with me whatsoever.”

For these acts of calling a meeting, attending it, and thereafter issuing a communique critical of the government of the day, and saying things that the government of the day did not like, Bayo Ojo accused Asari “and others (presently at large)” as the charges sweetly put it, of plotting to remove President Obasanjo by other than constitutional means, threatening to take up arms in order to intimidate and overawe the President and his government, and of levying war against the country.

On his arraignment, Asari pleaded not guilty and applied for bail, which the Federal High Court promptly declined citing national security, in a ruling that read like the work of the spokesperson of the State Security Service (SSS). On appeal, the Court of Appeal agreed with the Federal High Court.

On 8 June 2006, a full panel of the Supreme Court presided over by Aloysius Katsina Alu, delivered judgment, affirming the denial of bail. The author of the unanimous judgment of the court was Ibrahim Tanko Muhammad, who would 16 years later be forced out as Chief Justice of Nigeria after running the Supreme Court into the ground. The relevant part of his judgment read: “where National Security (sic) is threatened or there is the real likelihood of it being threatened human rights or the individual right of those responsible take second place. Human rights or individual rights must be suspended until the National Security (sic) can be protected or well taken care of. This is not anything new. The corporate existence of Nigeria as a united, harmonious, indivisible and indissoluble sovereign nation is certainly greater than any citizen’s liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individual’s liberty or right may not even exist.”

The Supreme Court did not pretend to explain its decision in terms of any rational logics of judicial reasoning, such as determining the scope of permissible and proportionate constraints on constitutional guarantees of assembly, association, or free speech. Strictly on the facts contained in the charge, it was difficult to see how attending a public meeting in a hotel and issuing a communique thereafter could engage national security at this level. Working from answer to question, however, the court placed the Asari of 2005-06 and the advocates for resource equity in the Niger Delta beneath the law.

The reasoning and decision making of the Supreme Court in the Asari Dokubo case in 2006 was plainly squalid, a poor example of the law of rule instead of the rule of law. But this is the problem with the convenient situational ethics of contemporary Nigerian law. The only thing constant about it is its shiftiness. Like the windvane, it has no moorings in principle.

This is what happens when lawyers, judges and law enforcement arrive at notions of legality by adapting the law to predictions of what pleases people in power. This is why few things in Nigeria these days are unlawful: abuse of power, grand corruption, judicial malfeasance, extra judicial killings, election rigging, all are kosher.

But the law of rule portends equal opportunity danger for its makers too. One decade after the Supreme Court judgment in Asari Dokubo’s case, in October 2016, the regime of President Muhammadu Buhari chose to terrorise the same judiciary that had invented that open-ended doctrine of national security. Addressing the annual conference of the NBA in Abuja in 2018, President Buhari gleefully recited the words of Justice Tanko Muhammad in the Asari Dokubo case to justify his mis-treatment of the judiciary. In a misbegotten show of enthusiasm, the members of the NBA gave him a standing ovation.

Meanwhile, in 2023, the shoe is on the other foot. There is a new party at the helm and the same Asari with his Niger Delta Militants and adherents of the SEA have been storming Abuja, organizing undisguised show of force in its favour and threatening those who oppose the current dispensation with hail, brimstone, desolation and worse. This time, rather than endure persecution from the law, Asari is now the toast of the law enforcement. He is free to do what he likes while the law conveniently averts its gaze and the Supreme Court, a stone throw from his preferred stomping grounds, is helpless. That is the life cycle of the law of rule.

In 2005 it was unjustified to place Asari and the Niger Delta advocates underneath the law. At the time, the ruling party at the federal level was the Peoples’ Democratic Party (PDP). Today, with the All Progressives Congress (APC) in power, it is just as unjustifiable to place Asari and his followers above the law.

A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu

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