Why Govt Should Proceed With Kanu’s Trial Than Re-arrest Him By Stephen Ubimago

Stephen Ubimago, in this piece, examines the nature and purport of bail and why from a legal standpoint it makes better judgment to pursue the conclusion of IPOB leader Nnamdi Kanu’s trial than revoking his bail…

Introduction

If the provisions of section 169 of the Administration of Criminal Justice Act, 2015, is any guide, then of course, the Federal Government is, within the limits of law, right in applying to court to revoke the bail granted leader of the Indigenous People of Biafra (IPOB), by a Federal High Court sitting in Abuja on April 25.

The law in that particular section of the ACJA provides: “Where a defendant has being admitted to bail and circumstances arise which, in the opinion of the Attorney General of the Federation, would justify the court in cancelling the bail or requiring a greater amount, a court may, on application being made by the Attorney General of the Federation, issue a warrant for the arrest of the defendant and, after giving the defendant an opportunity of being heard, may commit him to prison to await trial, or admit him to bail for the same or an increased amount.”

It has also been argued that the above ACJA provision finds constitutional reinforcement in section 35 (1)(b) of the 1999 Constitutional, as amended, which stipulates that a citizen’s right to personal liberty may be lawfully curtailed “by reason of his failure to comply with the order of a court or in order to secure the fulfillment of any obligation imposed upon him by law.”

Thus, when the Attorney General of the Federation, Malam Abubakar Malami (SAN), on August 25 filed an application seeking the revocation of Kanu’s bail, expressing a determination to see Kanu return to custody, he had referenced the above provision of the ACJA plus section 173 of the same law as the basis, saying Kanu defied orders of the court in terms of the conditions upon which the court freed him from custody.

The Federal Government maintained that it cannot as a responsible government watch idly as Kanu brazenly defy the said conditions without acting to remedy the breach.

It is recalled that on April 25, presiding judge, Justice Binta Murtala-Nyako, while ruling on Kanu’s bail application, granted the IPOB leader bail on conditions that: he must not hold rallies; he must not grant interviews; he must not be in a crowd of more than 10 people; he must provide three sureties in the sum of N100 million each; one of the sureties must be a senior highly placed person of Igbo extraction such as a senator; and the second surety must be a highly respected Jewish leader since Mr. Kanu said his religion is Judaism.

Other conditions were that the third surety must be a highly respected person who owns landed property and is resident in Abuja; the IPOB leader must deposit his Nigerian passport; he must also deposit his British passport with the court; he must provide the court with reports on the progress of his health and treatment on a monthly basis; and the order for him to deposit his Nigerian and British passports also mean he cannot travel out of the country (If this is considered, it is the thirteenth condition).

Moral, Legal Arguments Against Kanu’s Re-arrest

However, the decision of the AGF to secure the revocation of Kanu’s bail has not been met without angst especially from among persons and groups who seem to have sympathy for what Kanu is said to have come to represent.

Arguing from a moral point of view to the effect that Kanu’s agitation constitutes a nudging and an urgent call on the conscience of the country’s political leadership to commence immediate restructuring or adjustment of the country’s constitutional order in radical and fundamental ways, the likes of the Yoruba socio-cultural group, Afenifere, and their Igbo counterpart, Ohaneze, say the AGF must exercise self-restraint since he has lost the moral right to act against Kanu in light of his double standard.

According to them, given that the AGF was aloof and arms akimbo in failing to take decisive action against Arewa youths, who sometime in June issued a quit notice on Igbo residing in the North to vacate the area before October 1, he had lost the moral right to pursue the re-arrest of the IPOB leader.

Arguing from a legal point of view, however, Kanu’s lawyers, led by Ifeanyi Ejiofor, said they have “successfully challenged the bail conditions referred to by the government.”

But whether or not the bail condition has been “successfully challenged” by them, as Ejhiofor claims, it is recalled that indeed on July 1, Kanu through his lawyer, Ejiofor, did file an application requesting for the variation of his client’s bail conditions on grounds that the Court could not in one breath grant him his basic constitutional freedom, while on another seizing it.

If the court is not permitted by law to approbate and reprobate on a matter, then the said Kanu’s bail conditions should be varied to allow him enjoy his fundamental rights, Ejiofor seemed to argue.

“Remember that Kanu subscribes to Judaism. The court, for example, cannot say that Kanu should not go to church or to a supermarket or any such similar places. That condition and a few others are part of what we are seeking to get the court to interpret,” Ejiofor explained, while speaking to newsmen soon after filing the application.

Dated July 1, the Motion (challenging the condition relating to the number of persons Kanu was allowed to be seen with) sought reliefs to the effect: “An order of this honourable court varying the bail conditions given to the first defendant/applicant on April 25, 2017, by vacating paragraph 2(vii) and (viii) in the said conditions, which stipulates ‘that the first defendant should not be seen in a crowd exceeding 10 people; and that the defendant should not grant any interviews, hold or attend any rallies, respectively.”

The Motion invoked section 36 (5) of the 1999 Constitution, which provides for the presumption of the innocence of a citizen charged with criminal offence until his guilt is proven by a court of competent jurisdiction.

“Paragraph 2(vii) in the order, which stipulates that the first defendant/applicant cannot be seen in a crowd exceeding 10 people, contradicts the applicant’s right to freedom of association, and peaceful assembly granted by Section 40 of the Constitution of the Federal Republic of Nigeria, 1999, (as amended),” the Motion posited.

“Section 39 of the 1999 Constitution of the Federal Republic of Nigeria as (amended) provides for citizens’ rights to freedom of expression and press.

“The bail conditions granted the first defendant/applicant, particularly conditions in paragraph 2(vii) and (viii) in the said order, clearly discriminated against the first defendant/applicant, and subjected him to certain disabilities and restrictions.”

Nature And Purport Of Bail

It is noteworthy that on the nature and purport of bail, the Supreme Court in Dokubo-Asari v. Federal Republic of Nigeria held: “The main function of bail is to ensure the presence of the accused at the trial. This criterion is regarded as not only the omnibus one but also the most important. As a matter of fact, it is the mother of all the criteria enumerated above. As a matter of fact, all other criteria are parasitic on the omnibus criterion of availability of the accused to stand trial.”

The point of emphasis is that the essence of the grant of bail is to secure the availability of the accused person in court for his trial, simpliciter. It is constitutionally underpinned by sections 35 (1), 36 (5) and 41 of the 1999 Constitution, as amended, that guarantee citizens’ rights to personal liberty, fair hearing and presumption of innocence until proven guilty, as well as the freedom of movement. This was also the position held by the court in Obekpe v. State.

Against the backdrop of the foregoing judicial pronouncements, question have arisen as to how such bail conditions as Kanu “must not grant interviews;” “he must not be in a crowd of more than 10 people;” or hold or attend rallies,” which the AGF cited as being the reason for which the government seeks the revocation of his bail and re-arrest, help to secure his presence in court for his trial?

It is noteworthy that Kanu’s release on bail was not based on the said promissory conditions. On the contrary it was based on his fulfillment of the non-promissory, non-anticipatory or indeed immediate ones, whose demand the courts traditionally makes in criminal trials, and fulfillment of which often precede the release of an accused person on bail.

Bail conditions like sureties in like sum, specific description or characterization of the sureties by the court, and temporary seizure of defendant’s passport by the state are immediate, sufficient and exhaustive, which is why upon their fulfillment by the accused, the court proceeds to release him; which therefore makes the promissory conditions superfluous and pointless.

It has therefore been argued that since the anticipatory conditions, in actual fact, did not form the basis upon which the defendant secured his bail; why should flouting them constitute the basis for revoking the bail?

It is recalled that Justice Nyako on April 25 had adjourned hearing in Kanu’s trial to July 22. Curiously, however, the trial has yet to commence, strengthening the criticism that all that Nigeria’s criminal justice system is concerned about is committing accused persons to custody without trial; and prosecution’s resistance to grant of bail to the accused person, perhaps because once bail is granted the accused, the prosecution goes to bed and the matter hits an abrupt end.

Conclusion

Speaking in this connection, US-based Nigerian lawyer, Emeka Ugwuonye told our reporter in a chat that one of the biggest challenges facing criminal justice administration in the country is that “90 percent of criminal trial in Nigeria dwells on the pre-trial detention stage.

“Once you get bail there is hardly anything that is done subsequently. 90 percent of people in Kirikiri prisons are awaiting trial cases. It is the same across all prisons in the country. Pretrial detention, which is the period you got detained before your matter even went to trial, is supposed to be very short.

“In Nigeria that period could turn out to be even longer than the legitimate jail term for the offence! So the greatest problem of our criminal justice system is that 90 per cent of the effort goes towards pre-trial detention.

“And so when the accused eventually comes out of detention, the prosecutors would stop coming to court for the trial.

“The prosecutors would only go to court just when trial has not even commenced against the accused person to urge the court to commit the person to Kirikiri.

“Ordinarily the prisons ought to be reserved for persons who have been convicted and sentenced to a jail term; not otherwise.”

He concludes: “The state should rather proceed with Kanu’s trial and forget about re-arresting him.”