DASUKI: ABUJA LAWYER FILES A PETITION AGAINST THE ATTORNEY-GENERAL OF THE FEDERATION, WANTS HIS SAN RANK TAKEN
24th
July, 2018
THE CHAIRMAN,
ETHICS AND PRIVILEGES
COMMITTEE,
HONOURABLE BODY OF
BENCHERS,
FEDERAL REPUBLIC OF
NIGERIA,
31 Lake Chad Crescent,
Maitama, Abuja.
Dear Sir,
A
PETITION PRESENTED AGAINST MR. ABUBAKAR MALAMI, SENIOR ADVOCATE OF NIGERIA FOR ABUSE
OF OFFICE AND SCANDALIZATION OF THE LEGAL PROFESSION IN NIGERIA AGAINST SECTION
287(3) OF THE AMENDED 1999 CONSTITUTION AND RULE 1 OF THE RULES OF PROFESSIONAL
CONDUCT FOR LAWYERS, 2007.
1.
I bring you warmest greetings from the
constituents and Apostles of Rule of Law and Constitutionalism in Nigeria.
2.
I humbly write to draw your kind
attention to the interview granted by MR. Abubakar Malami, Senior Advocate of
Nigeria [henceforth in this petition called SAN] and published by an online
media organization called Premium Times on the 19th day of July, 2018
on this link: [https://www.premiumtimesng.com/news/headlines/277085-why-nigerian-govt-cant-release-dasuki-attorney-general-malami.html].
The said interview is titled “Why Nigerian govt can’t release Dasuki-
Attorney-General Malami”. In the interview, Mr. Malami stated thus:
3.
“What
I want you to know is that issues concerning law and order under Muhammadu
Buhari are sacrosanct and obeying court order is compulsory. However you should
also know that there is a general consensus world over that where the dispute
is only between individuals, then you can consider the issue based on the
instant situation. But if the dispute is about an issue that affects an entire
nation, then you have to remember that government is about the people not for
only an individual. So you have to look at it from this perspective. If the
issue about an individual coincides with that which affects the people of a
nation and you are now saying the government did not obey a court order that
infringes on a single person’s rights. Remember we are talking about a person
who was instrumental to the deaths of over one hundred thousand people. Are you
saying that the rights of one person is more important than that of 100,000 who
lost their lives? Reports have shown that there was massive mismanagement of
funds meant for military hardware which the military could not access and that
led to the death of many, embezzlement of the fund and because of that many
people have lost their lives. Obeying the court is not the issue per say. Are
we going to take the issue of an individual more important than that of the
people? The government’s main responsibility is for and about the people. The
essence of governance is to better the lives of its people. So you have to
weigh it based on that; the rights of an individual or the rights of the
people.”
4.
I note in passing that some senior
members of the Bar have all weighed in and lent their voices in condemning the
continuous detention of the former National Security Adviser, Rtd. Col Dasuki
in the face of six Court orders admitting him to bail as same is lawlessness on
the part of the government of the day which Mr. Malami SAN serves as its Chief
Law Officer and Legal Adviser.
5. REASONS FOR THIS
PETITION:
6.
My reasons for presenting this petition
to you are understandably manifold but for economy of space, I would scale them
down to three. Like a Lady’s skirt, this urgent petition of grave concern
promises to be short enough to be attractive but equally long enough to cover
all the essential parts of the issues under scrutiny.
7.
First and foremost, [by the infinite
mercies and grace of God Almighty] I am a proud member of this most honourable
profession on this planet earth, the legal profession, just as Mr. Abubakar
Malami, SAN. And it is hardly disputable that the future of democracy in every
civilised society lies on the shoulders of lawyers.
8.
Secondly, the office of the
Attorney-General of the Federation is recognised as a great historic office
that places its occupier in the rare position of the “Keeper of the King’s
conscience”, the Chief Law Officer/Legal Adviser not only to the President of
the Nation alone but equally to the entire Federal Government with all the
Ministries, Departments and Agencies thereunder. Added to these super
responsibilities, by the ancient and ever-unbroken tradition of our profession,
the Attorney-General of the Federation [henceforth in this petition called the
AGF] is rightly acclaimed the “Leader of the Bar.” The third crucial reason for
this urgent petition is the lessons of precedents. The pre-eminent and
incontestable position of the Attorney-General, under the common law, as the
chief law officer of the State, either generally as a legal adviser or
specially in all court proceedings to which the State is a party, has long been
recognised by the courts[State v. Ilori (1983) 2 S.C. 155].
The enormous powers bestowed on the AGF by our Constitution have been
acknowledged as a great ministerial prerogative coupled with grave
responsibilities. It follows therefore that however Mr. Malami, SAN decides to
exercise these awesome powers donated to his office today will definitely form
a precedent for the future. Mr. Abubabakr Malami, SAN is a high-ranking
member of this ancient and noble profession by reason of which he is expected
to be a shining example especially as it relates to his fidelity to the laws of
the land particularly the Constitution which is the fon est origo.
9.
Finally, being a Minister in the Temple
of Justice who has equally been charged to remain consistent in defending the
Constitution of the Federal Republic of Nigeria and the Rule of Law generally,
I consider this petition a discharge of duty that I owe my society in
conscience so that propagation of legal heresy will not be allowed to take root
in our society.
10.
STATISTICS:
11.
It is no
longer news that the High Court of Federal Capital Territory [per, the
Honourable Justice Huseni Baba-Yusuf] granted bail to the former national
security adviser, Colonel Sambo Dasuki (Rtd). The same Court equally granted
him bail [per, the Honourable Justice Afen] in another charge brought against
him by the Federal Government. Sometime in January, 2017, the same F.C.T. High
Court, presided over by the Honourable Justice Huseni Baba-Yusuf was moved by
Mr. Ahmed Raji, SAN to re-affirm the bail earlier granted Mr. Dasuki. Again in
April, 2017, the Federal High Court [sitting in Abuja, per the Honourable
Justice Ahmed Mohammed] was similarly moved by Mr. Ahmed Raji [Dasuki’s
Counsel] to re-affirm the bail earlier granted Mr. Dasuki by the said Court since
2015. On the 4th October, 2016, the Court of the Economic Community of West
African States, ECOWAS, declared the arrest and detention of former National
Security Adviser, Sambo Dasuki, as unlawful and arbitrary. The court also held
that the further arrest of Mr. Dasuki by government on November 4, after he was
granted bail by a court of law, amounts to a mockery of democracy and the rule
of law. At the last count, there are six court orders admitting the former
National Security Adviser to bail and commanding the Federal Government of
Nigeria to release him which have all been spurned and ignored as Mr. Dasuki is
still in detention.
12.
THE NATIONAL ASSEMBLY WEIGHS IN:
13.
On Thursday, the 26th day of
January, 2017, the Federal House of Representatives, resolved to urge the
Executive arm to direct security agencies to obey court orders, especially
those relating to bail and production of accused persons in Court for trials;
and mandate the Committee on Human Rights and Justice to investigate cases of
detention of accused persons beyond the statutory period in contravention of
subsisting Court Orders granting them bail, failure to release or produce
accused persons in Court for trial and prevail on the offending agencies to
ensure their releases and report to the House within four (4) weeks for further
legislative action. Interestingly, on the same legislative day, the Federal
House of Representatives considered and adopted a motion titled “Need to check
persistent Fundamental Human Rights Breaches and Acts of Impunity by Security
Agencies”. After a robust and wide-ranging debate on the Motion, the House
noted that the Chapter Four of the Constitution of the Federal Republic of
Nigeria,1999 and the African Charter on Human and Peoples Rights, guarantee,
among others, rights to peaceful assembly, personal liberty and freedom of
movement but concerned about the rising cases of violation of those rights;
also noted the air of impunity with which the personnel of the security
agencies treat citizens and the worrisome tendencies to disobey court orders;
concerned about the recent arrest and detention, on 22nd December, 2016, of
some members of Civil Society Organisations, such as Lawyers in Defence of
Democracy, National Youth Council of Nigeria and Citizens for Good Governance
by the State Security Service for allegedly planning a peaceful protest and
they have remained in detention for over 29 days since their arrests without
being charged to Court or released. The House resolved, among others, to mandate
the Committee on Human Rights, Police Affairs, National Security and
Intelligence and Justice to investigate this incident and all other cases of
unlawful arrests and detention of citizens and disobedience of Court Orders
since June, 2015 and report to the House within four (4) weeks for further
legislative action.
14.
THE CHIEF JUSTICE OF NIGERIA WEIGHS IN:
15.
When he appeared before the
Nigerian Senate for his confirmation, the current Chief Justice of Nigeria, on
the 1st of March, 2017 roundly condemned the rampant cases of disobedience to
Court Orders. Fielding questions from the lawmakers, the CJN said the challenge
of disobedience to court orders “is for the legislature and the executive to
handle.” He said the judiciary would welcome that day that court judgments
would be respected and carried out after exhaustion of the right of appeal.
That will mean the independence of the judiciary, he added. If rulings are not
respected, the judge continued, they would just be “mere piece of paper.”
“Anyway, disobedience of court order is an act of impunity,” he said. Yet again
in January, 2018, the Honourable the Chief Justice of Nigeria seriously warned
against the grave consequences of disobeying Court order. He gave this warning as the
guest lecturer at the first University of Lagos (UNILAG) Faculty of Law
public lecture at the varsity’s main campus in Akoka, Lagos. The CJN spoke in a
17-page speech entitled: “The Rule of Law as Panacea for Peace, Security and
Good Governance.”
16.
Hear him: “Any government that is against the
enthronement of the rule of law is by implication inviting anarchy into the
system. A democratic government must not only obey the law but also courts’
orders,”
17.
WARNINGS OF OUR COURTS:
18.
The Nigerian Court of Appeal
in the memorable case of Balonwu v. Obi (2007) 5 NWLR (Pt. 1028) 488
at 538 Paras.C- E, 564-565 Paras.B – G, has this to say on disobedience
to sacred Orders of Court;
19.
“An order of court whether valid or not must be obeyed until it is
set aside. An order of court must be obeyed as long as it is subsisting by all
no matter how lowly or highly placed in society. An act of disobedience towards
an order of a court can render any further act by those who have acted
disobediently to sanctions from other court because no court would want its
orders flouted. This is what the rule of law is all about hence the courts have
always stressed the need for obedience of court orders…Obeying court orders is
both legal and moral obligation but you find that court orders are toyed with
both by lawyers and the litigating public. Indeed for the politicians, the rule
of law is non-existing until it suits their purpose, and it is only then it is
observed to the letter. Without a strict adherence to the rule of law, our
nascent democracy and indeed our Constitution will only be worth the paper on
which it is written. What makes a great country is adherence to the rule of
law. Even in hell, there is order and discipline.”
20.
Indeed, all the existing
Supreme Court authorities lean heavily in support of the long-established
postulation that disobedience of Court Order (otherwise called contempt of
Court) is an abomination of the rankest specie just as it is an anathema in
every democracy worth the name as it holds the key to the floodgates of anarchy
and societal destruction. Condemning this cancerous vice, the Supreme Court, in
the case of Hart v. Hart (1991) 21 N.S.C.C. (Pt. 1) 184 at 199, had these
unkind words for those who disobey Court orders (contemnors);
21.
“I would like to state that obedience to Orders of Courts is
fundamental to the good order, peace and stability of the Nigerian nation. The
ugly alternative is a painful recrudescence of triumph of brute force or
anarchy, a resort to our old system of settlement by means of bow and arrows,
machetes and guns or, now, even more sophisticated weapons of war. Disobedience
to an order of Court should, therefore, be seen as an offence directed not
against the personality of the Judge who made the Order, but as a calculated
act of subversion of peace, law, and order in Nigeria society. Obedience to
every Order of Court is therefore a duty which every citizen who believes in
peace and stability of the Nigerian State owes to the nation. To allow Court
orders to be disobeyed would be to tread the road toward anarchy. If orders of
the Court can be treated with disrespect, the whole administration of justice
is brought into scorn…If the remedies that the Court grants to correct wrongs
can be ignored, then, there will be nothing left for each person but to take
the law into his own hands. Loss of respect for the Court will quickly result
in the destruction of our society”
22.
To cap it all, the
Constitution by its Section 287(3) lucidly provides in the very words which I would
now most respectfully reproduce;
23.
“The decisions of the Federal High Court, the National Industrial
Court, a High Court and of all other Courts established by this Constitution
shall be enforced in any part of the Federation by all authorities and persons,
and by other Courts of law with subordinate jurisdiction to that of the Federal
High Court, the National Industrial Court, a High Court and those other Courts,
respectively”
24.
SUMMATION:
25.
What patently emerges from the
concatenation of the instances of executive impunity and lawlessness most
dispassionately surveyed above comes to the ineluctable conclusion that the
present Federal Government of Nigeria, which Mr. Malami, SAN is saddled with
the onerous duty to offer sound legal advice, has most unfortunately fallen
into the cesspit of tyranny, lawlessness and impunity. Most of its security
agencies (especially) have pathetically constituted themselves into the
sinkhole of constitutionalism, Rule of Law and sacred human rights of great
Nigerian Citizens.
26.
THE
CASE AGAINST MALAMI, SAN:
27.
Nothing projects more the enormity of
Malami’s iniquity than the interview he granted which prefaced this petition.
Therein, Malami SAN made it clear that the decision of who should be released
from detention belongs to the Federal Government as against the Courts. This is
extremely absurd, disgustingly confounding and exponentially scandalous to say
the least. Abubakar Malami, SAN is primarily a Lawyer which qualified him to be
the Minister of Justice today. He is therefore unquestionably bound by the Rules
of Professionally Conduct enacted by the General Council of the Bar. Of
prominent importance is the Rule 1 thereof which states that “A lawyer shall uphold and observe the rule
of law, promote and foster the course of justice, maintain a high standard of
professional conduct, and shall not engage in any conduct which is unbecoming
of a legal practitioner.”
28.
Malami’s position on Dasuki is not an
example to be followed by his juniors in this our profession and he should be
told so. Any genuine war against corruption should ordinarily command the
support of all men of goodwill. However, nobody should be allowed to hide under
the guise of supporting the war against corruption to undermine and spurn our
Constitution by pulling wool over the eyes of undiscerning members of the
public. That a government can keep a citizen behind bars despite avalanche of
valid Court orders is rather mind-boggling. However, that the defence of such
impunity could emanate from the head and mouth of a Senior Advocate of Nigeria
[and more so the Chief Law Officer of the Federation] makes it most
unfortunate.
29.
END:
30.
Head or tail, Malami, SAN cannot be
allowed to enthrone let alone perpetuate a dangerous precedent. He is
traumatizing our settled constitutional jurisprudence and the brazen assault
must now be halted.
31.
The point I have been struggling to make
is that if the law loses its respect and fails to command obedience from the
citizenry, we lawyers will definitely close shops. After all the alluring
benefits the princely legal profession has bestowed on Mr. Malami, SAN, it
would be most uncharitable for him to precipitate the collapse of law practice
in Nigeria. While it is true that the Leadership of the Nigerian Bar and the
Body of Benchers may not possibly take a position on all issues afflicting our
nation since they are almost overwhelming, it is equally true that the
Leadership of the Nigerian Bar and Body of Benchers cannot afford to look the
other way when the organic law of the land is suffering indignity in the hands
of the Attorney-General of the Nation. That would be one indifference rather
too many.
32.
In Conclusion, Sir, it is good we
remember that while it may seem to be Dasuki’s turn today, nobody knows whose
turn it would be tomorrow. Since the law and the law only is my constituency, I
am only writing in defence of the future of our democracy. I know that the
Honourable Attorney-General of the Federation is a powerful man. Indeed, a man
of immense power. He could order for my arrest, he could dredge up trumped up
charges against me to put me out of circulation or such other untoward
backlashes as a result of this petition. As for whatever backlash that might
befall me for my courage to petition you on this important issues of our realm,
I take refuge and solace in the protection of God Almighty who inspired the
legendary Thomas Paine to declare that “if
there must be trouble, let it be in my own day so that my child may have peace.”.
33.
PRAYER:
34.
The prayer of this petition is for the Ethics
and Privileges Committee of the Honourable Body of Benchers to examine all the
allegations raised against MR. ABUBAKAR MALAMI, SAN, and determine whether in
the light of the bundle of facts, circumstances and the applicable laws/rules
cited he is still worthy to continue to bear the privileged rank of a Senior
Advocate of Nigeria and if not, to exercise your undoubted disciplinary
jurisdiction over him by awarding the appropriate sanction. The case of Dasuki
is simply that of the shame of a nation’s democracy. I find here a convenient
place to stop.
Yours in the
preservation of democracy,
Johnmary Chukwukasi
Jideobi, Esq.
Cc: The
Honourable the Chief Justice of Nigeria.
DASUKI: ABUJA LAWYER FILES A PETITION AGAINST THE ATTORNEY-GENERAL OF THE FEDERATION, WANTS HIS SAN RANK TAKEN
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