Onikepo Braithwaite Wth THE ADVOCATE Onikepo.Braithwaite@thisdaylive.com
The two matters which have been of great interest to Nigerians in the last couple of weeks are the President’s invitation to the National Assembly (NASS) to address members on the insecurity that has pervaded our nation, and Abdulrasheed Maina’s jumping bail and extradition back home.
The President’s Invitation to NASS
I have listened to various arguments on this matter; and with all due respect; it is my submission that, the President can appear before NASS to address them. However, I will only touch on a few major points, while restricting the basis of my brief analysis on the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) in that regard.
NASS: Law Making and Oversight Functions
Here are some of the reasons for my position: First, by virtue of Section 4(2) of the Constitution, NASS can make laws regarding any matter included on the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution – the Armed Forces and Police are Items No. 38 and 45 on that list, respectively; and the President of the Federal Republic of Nigeria (presently President Muhammadu Buhari) is the Commander-in-Chief of the Armed Forces. Section 88(1)(a) of the Constitution then empowers NASS to investigate any matter or thing, with respect to which it has powers to make laws, for the purpose of, inter alia, enabling NASS to expose corruption, inefficiency, and waste in the execution of its laws (Section 88(2)(b) of the Constitution).
This means that, since NASS can make laws for the Military and Police, it follows that it can investigate matters concerning them, their performance, especially with regard to their inefficiency and waste, and failure to protect the lives and property of the people, and/or crush the insurgency that is responsible for the wanton and incessant killing of our brothers and sisters in the North East. See the cases of Olufunmilayo Ransome-Kuti & 3 Ors v AGF, Chief of Army Staff & 7 Ors 1985 2 N.W.L.R. Part 6 Page 211; Stabilini Visinoni Ltd v Mallinson & Partners Ltd 2014 12 N.W.L.R. Part 1420 Page 134 on misconduct/dereliction of duty.
The invitation of the President to address NASS is not an investigation of the President personally, but I would imagine, a look into the conduct of the Armed Forces vis-a-vis the rising, incessant insecurity in the North East, the recent massacre in Zabarmari, and a request for a general framework which will assure NASS and Nigerians generally that, going forward, the Government will leave no stone unturned to face the insurgency head on.
For instance, pertinent questions that can be asked are, if any alternative plans have been made by Government to receive the Tucano Jets when they are ready for delivery, if the Air Force tarmac in Kainji is not suitable for receiving them (we don’t need to be told the nitty-gritty, if it will compromise military strategy); is there any truth to the allegations that Nigeria runs the risk of forfeiting the Jets if we are unable to take delivery of them, which would amount to a waste/loss of our $493 million? In any event, it is doubtful that any member of NASS will be asking the President to reveal secret strategies of how the Nigerian Army intends to fight the war!
Immunity from Proceedings
Second, Section 308 which confers immunity from criminal and civil proceedings on the President, Vice President, Governor and Deputy Governor during their period in office, refers to court proceedings; an invitation to address NASS is not a court proceeding. A court proceeding is an action instituted in a court of law, for the determination of one disputed issue or the other. By any stretch of the imagination, NASS is not a court of law (nor is any issue being disputed with President Buhari); it is the Legislative arm of government, as there are the two other arms of Government – the Executive and the Judiciary; NASS is not part of the Judiciary. I therefore humbly submit that, Section 308 of the Constitution is inapplicable in this situation.
Primary Purpose of Government
Third and most importantly, the security and welfare of the people is the primary purpose of Government (Section 14(2)(b) of the Constitution); and the doctrine of separation of powers (Sections 4, 5 & 6 of the Constitution) presupposes that, the three arms of government act as checks and balances against each other. Is it therefore not strange, that NASS would be unable to perform this oversight function for something so crucial as the security of the nation, which is one of the main reasons why we have a government in the first place?
It would be good for President Buhari to honour the invitation – even if he went there and refused to answer certain questions whose answers are not for public consumption, or attend the NASS session in the company of Vice President Yemi Osinbajo, SAN, who is an eloquent Professor of Law, or the Attorney-General of the Federation, since they are in a good position to decipher what is privileged information and what should not be divulged publicly, should such questions be put to the President. The President’s attendance would have, at least, shown an element of personal care and concern for the plight of our people in the North East, and our security situation.
Abdulrasheed Maina: A Flight Risk
When I heard that Abdulrasheed Maina had jumped bail, I wasn’t surprised. I wondered why Senator Ali Ndume, had stood surety for a known flight risk. But, more importantly, I wondered why a known flight risk – someone who had fled the country twice already, would be granted bail in the first place. Luckily for Senator Ndume, Maina was successfully fished out and extradited from Niger where he had escaped to.
Did Maina deserve to be Granted Bail?
In Ojo v F. R.N. 2006 9 N.W.L.R. Part 984 Page 103 at 115, I. T. Muhammad JCA (as he then was) (now CJN) defined bail thus: “Bail generally is the freeing or setting at liberty one arrested or imprisoned, upon others becoming sureties by recognisance for his appearance at a day and place certainly assigned, he also entering into self- recognisance”. In Okafor v IGP 1964 A.N.L.R. 589 the court held that, the main function of bail is to ensure the presence of the accused at trial.
How would anyone have ensured Maina’s presence at his trial, without him being remanded in custody and delivered to the court by the authorities? With Maina’s known history of appearing and disappearing like a magician (“ori changer, babari changer” as late magician, Professor Peller used to say when he made thing disappear and reappear), any Judge who granted a known flight risk like him bail, cannot be said to have exercised his discretion judicially or judiciously – quite the opposite – as granting of a bail application under such circumstances, would be adjudged to be perverse – that is, against the weight of evidence.
We are all aware of Section 36(5) of the Constitution which provides that every person charged with a criminal offence is presumed innocent until proven guilty. In fact, Section 163 of the Administration of Criminal Justice Act 2015 (ACJA) provides that a Defendant is entitled to bail, unless the court sees reason to the contrary. Some of the reasons why a Defendant may not be admitted to bail are listed in Section 162 of ACJA – and, in Maina’s case, specifically Section 162(b) – the Defendant may attempt to evade his trial (jump bail).
In short, even though the court has the discretion as to whether to grant bail or not, such discretion must be exercised judicially and judiciously. The definition of judicious is “having, shown, or done with good judgement or sense”.
In 2013, when Abdulrasheed Maina was sacked by the Jonathan administration over an allegation of a N2 billion fraud, he disappeared from Nigeria to destinations unknown and stealthily reappeared into the country in 2017. When it was revealed that Maina had not only secretly returned to Nigeria, but had been reinstated as Director in the Ministry of Interior and promoted, he was sacked once more, and again, he disappeared into the night! He snuck back into the country, and was finally rearrested by the DSS in 2019.
In Adams v AGF 2007 All F.W.L.R. Part 355 Page 429 at 445, the Court of Appeal held inter alia that, the onus is on the Prosecution to show that the Applicant for bail is one that should be refused bail. In Maina’s case, not only did the Prosecution have their work easily cut out for them with his antecedents, the trial Judge should have taken judicial notice of Maina’s penchant for disappearance as it was very much in the public domain, and done the needful which, in the circumstances, was to have refused the bail application, since he was certainly not deserving of it.
For Senator Ndume, all is well that ends well, it seems!
Re: The Law and Service Chiefs’ Removal
You picked a very topical issue today. You touched on all the precise legal issues and your conclusion inevitable, PMBs buy in is necessary.
Will the change of guards dramatically change the course of the war?
Secondly, what hard lessons do you learn from your experience as a Head of State once overthrown in a coup?
Finally, military contractors are fine, but the international dimensions of the war should be thoroughly interrogated. What is the French connection? Are the countries that are reeling from our ban on rice imports etc.. happy?
Re: ‘Nigeria Needs the “Low Profile” Approach of the 1970s’ – Ayò Obe
For proper correct historical context, the pioneering and founding team of the CIVIL LIBERTIES ORGANISATION (CLO), the first ever indigenous organised human rights organisation in Nigeria, which berthed on 15th October, 1987, are:
1.OLISA AGBAKOBA, SAN (President)
2.CLEMENT NWANKWO (Secretary)
3.MIKE OZEKHOME, SAN (Director, Legal Services)
4.RICHARD AKINOLA (Director, Research)
5.ABDUL OROH (Director, Organisation)
6.EMMANUEL ERHAKPOTOBOR (Treasurer).
We also constituted the Board of Governors.
Chief Mike Ozekhome, SAN