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| Unconstitutional Laws & Court Orders On Rampage In Nigeria: Details of Petition against Justice Adeniyi Ademola over Nnamdi Kanu |
Ref:
Intersociety/NG/12/015/002/NJC/AGF/FGN
1.
Hon Justice Mahmud Mohammed,
Chairman of the National Judicial Council
The
NJC Headquarters, Supreme Court Complex
Three-Arms-Zone,
FCT, Abuja, Nigeria
2.
Mallam Abubakar Malami, SAN
Attorney
General of the Federation & Minister for Justice
The
Federal Ministry of Justice, Federal Secretariat Complex
Shehu
Shagari Way, Central Area, FCT, Abuja, Nigeria
Your
Lordship/Dear AGF,
Unconstitutional Laws & Court Orders On Rampage In
Nigeria: A Case Against Hon Justice Adeniyi Ademola Of The Federal High Court
(Abuja Division) & Section 27 (1) Of The Terrorism Prevention Act Of
2011(as amended)
(Onitsha
Nigeria, 13th December 2015)-The International Society for Civil Liberties & the Rule of Law (Intersociety) respectfully write the
National Judicial Council( NJC) under
the chairmanship of Your Lordship
and the Attorney General of the
Federation & Minister for Justice. The reason for this all-important
letter of ours is underlined above.
To refresh the minds of Your
Lordship and the AGF, Intersociety is an incorporated
rights based Civil Society Organization located in Onitsha, Southeast
Nigeria and headquartered at 41, Miss Elems Street, Fegge, Onitsha.
We thematically work on: promotion and
advancement of rule of law and civil liberties; democracy & good
governance; and public security & safety. Joined in support of this all-important letter of
ours are the leaderships of ten other pro
democracy, good governance and human rights organizations based in the
Southeast; comprising the Anambra
State Branch of the Civil Liberties Organization (CLO), the Center for Human
Rights & Peace Advocacy (CHRPA), Human Rights Club(HRC) (a project of
LRRDC), Southeast Good Governance Forum (SGGF), Forum for Equity, Justice &
Defense of Human Rights (FEJDHR), Society Advocacy Watch Project (SPAW),
Anambra Human Rights Forum (AHRF), the International Solidarity for Peace &
Human Rights Initiative (INTERSOLIDARITY), the Street Law Africa (LawAfrica)
and the Igbo Ekunie Initiative (IEI) (a pan Igbo rights campaigner).
We (Intersociety) had on 2nd
of November 2015 written Your Lordship and
the PCA on the urgent need to save
the Nigerian Judiciary & Democracy from the hands of the dictatorial
Executive Arm of Government under the Buhari’s Presidency. On 10th
of November 2015, we sent Your Lordship and
the PCA an updated copy, in which we
added some vital facts omitted in the first letter. Despite receiving proof-of-delivery
from the contracted courier company; till date, neither Your Lordship’s NJC nor office of the PCA had acknowledged and responded to
same in writing.
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| Justice Adeniyi Ademola of the Federal High Court, Abuja |
Related Story:
Breaking News! Nnamdi Kanu: Human Rights Coalition drags ERRING Justice Adeniyi Ademola to National Judicial Council (NJC)
That notwithstanding Your Lordship, our writing Your Lordship is in line with constitutional
powers bestowed upon Your Lordship’s NJC
and the AGF. As Your Lordship is aware, the National
Judicial Council (NJC) is one of the
Federal Executive Bodies created by virtue of Section 153 of the 1999
Constitution of the Federal Republic of Nigeria; in order to insulate the
Judiciary from the whims and caprices of the Executive; hence guarantee the
independence of Judicial Arm of Government, which is a sine qua non for any
democratic Government. The powers and
functions of the NJC are contained
in Paragraph 21 of Part 1 of the Third Schedule of the Constitution of the Federal Republic of
Nigeria 1999 as amended. Such powers include defense and protection of the Constitution; and protection and
advancement of the Fundamental Human Rights of all citizens of Nigeria.
On the other hand, our writing the AGF is also in recognition of powers
bestowed on him and his office by the Constitution, which are contained in Sections
150 (1) (2) and 174 (1) (2) (3) of the 1999 Constitution. The AGF is constitutionally recognized as the
Chief Law Officer of the Federation (of Nigeria). By the spirit
and letters of Section 6 (1) of the 1999 Constitution, Your Lordship’s NJC/Supreme Court and the AGF are the parliamentary president and prime
minister of the Judiciary of the Federation of Nigeria. Your Lordship and the AGF are further
aware that Section 13 of the Constitution of the Federal Republic of Nigeria
1999 as amended; clearly stated that “it shall be the duty and responsibility of
all organs of government, and of all authorities and persons, exercising
legislative, executive or judiciary powers, to conform to, observe and apply
the provisions of this Constitution”.
The 1999 Constitution further stated
clearly in Section 1 (1) that “this
Constitution is supreme and its provisions shall have binding force on all
authorities and persons throughout the Federal Republic of Nigeria”. Its Section 1 (3) also directed that “if any other law is inconsistent with the
provisions of this Constitution, the Constitution shall prevail and that other
law shall to the extent of the inconsistency be void”. In Section 4 (5) of
the same Constitution, “if any law
enacted by the House of Assembly of a State is inconsistent with any law
validly made by the National Assembly, the law made by the National Assembly
shall prevail and that other law shall to the extent of the inconsistency be
void”. The Supreme Court of Nigeria’s landmark judgment in Abacha and Others v Fawehinmi (2001) AHRLR 172 (NgSC 2000); ruled that “the African Charter on Human & Peoples Rights (ACHPR) is domestically enforceable, with its status
higher than any ordinary legislation in Nigeria, but lower than the
Constitution.
The simple
meaning of the citations above is that the
1999 Constitution is above and superior to all other laws of the land; followed
by the African Charter on Human & Peoples Rights (in dealing with the
citizens’ rights in the course of execution or enforcement of State policies
and actions)”. The laws (Acts) enacted or deemed to have been enacted
by the National Assembly of Nigeria as well as the laws made by the Houses of
Assembly of States are all inferior to the Constitution and the African Charter
on Human & Peoples Rights. In other words, in the event of conflict between
the Constitution and any Act of the National Assembly or any of its provisions;
the Constitution prevails; and in the event of any conflict between the African
Charter on Human Rights & Peoples Rights (signed, ratified and domesticated
by Nigeria in 1983) and any Act of the National Assembly; the African Charter
prevails. Also in the event of any conflict between any Act of the National
Assembly and a Law of a State, the Act of the National Assembly prevails.
Your Lordship and the AGF
are further reminded respectfully that for a citizen to be appointed or to
serve as a Judge of a State or Federal High Court in Nigeria, he or she must have
practiced law in Nigeria for ten years and above. This is contained in Sections
250 (3) and 270 (3) of the 1999 Constitution. That is to say that he or she
must have attended and completed university law degree program; gone to the
Nigerian Law School and graduated;
called to Bar and admitted as a member of the Nigerian Bar Association;
and licensed to practice as a legal practitioner leading to his or her
admission into the Bench as a judge.
Your Lordship and the
AGF are also reminded that every Judge in Nigeria is
mandatorily kitted with three bibles
of fundamental legal knowledge of: (a) rule of law and its two cardinal pillars of audi altarem partem (listen to or
hear the other side) and nemo judex in causa sua (refrain from being a
judge in your own case); (b) the 1999
Constitution; and (c) the Fundamental Human Rights Chapter in the Constitution
and the African Charter on Human & Peoples Rights. These three bibles of fundamental legal knowledge
or three weapons of a Bencher also
defy mental senility. The three weapons of a Bencher serve as his or her daily chewing stick or tooth brush; to be
used and applied at all times and in all adjudicative circumstances. A Judge of
the Federal or State High Court is also mandatorily under the judicial oath and the oath of
constitutional allegiance; as contained in the Seventh Schedule of the 1999 Constitution.
It is on
the basis of the foregoing that we respectfully wish to inform Your Lordship
and the AGF that unconstitutional
court orders and laws are on rampage in Nigeria. As Your Lordship and
the AGF are aware, it is an unconstitutional court order when
a Judge issues an order that is brazenly inconsistent with the provisions of
the 1999 Constitution; likewise unconstitutional
law, which is a Federal or State Act or Law, enacted in total disregard
and violation of the provisions of the 1999 Constitution. It is therefore our
information that Hon Justice Adeniyi Ademola is a serving Judge in Nigeria and
Presiding Judge of the Court Six of the Federal High Court, Abuja Division. He
had on 10th November 2015 issued a brazen and unconstitutional order exparte; authorizing the DSS
to detain Citizen Nnamdi Kanu for ninety days and above under the guise of investigating him for terrorism and
terrorism financing. The unconstitutional and phantom order was issued
pursuant to an application brought before him by the Federal Government through
the DSS in Suit No FHC/ABJ/CS/873/2015.
Citizen
Nnamdi Kanu; director of the Radio Biafra London (RBL) and leader
of a self determination pressure group called Indigenous People of Biafra
(IPOB), was arrested by DSS in Lagos State, Southwest Nigeria on 14th
October 2015 and detained for five days in Abuja before being arraigned at the
Wuse Zone 2 Senior Magistrate Court on a
three-count
charge of Criminal Conspiracy, Managing & Belonging to Unlawful Society and
Criminal Intimidation said to be contrary to Sections 97, 97b and 397 of the
Penal Code (applicable in Northern Nigeria). He pleaded not guilty as
charged and was granted bail by the Presiding Magistrate, Hon Shaibu Usman on
19th October and his bail conditions were met on 22nd
October 2015, but the DSS refused to release him on bail till date. Citizen Kanu
was brought before the Magistrate Court on 18th of November 2015
where upon the Magistrate Court was informed by the DSS that it had secured “a
Federal High Court Order dated 10th November 2015” to detain him for
ninety days for purpose of investigating him for terrorism and terrorism
financing; quoting 27 (1) of the Terrorism Prevention Act of 2011 as amended.
The DSS further informed the same
Magistrate Court of its intention to withdraw the charges and discontinue with
same so as to prefer higher charges against Citizen Kanu at a superior Court
after its “investigation”. The DSS had earlier flouted three consequential
orders issued by the Senior Magistrate Court relating to release on bail, transfer to
prison and production before the Court. Citizen Nnamdi Kanu has been
held behind bars for sixty days or two
months since 14th October 2015. He has not been released on bail
till date.
It is
very important to remind Your Lordship and
the AGF that involvement in acts
of terrorism and terrorism financing are punishable with death penalty
and life imprisonment according to the Terrorism Prevention Act of 2011 as amended;
likewise conspiracy, aiding and abetting the offense of terrorism,
which are punishable with life imprisonment. What still surprises us is
how the DSS came about its allegation of terrorism and terrorism financing
against a group and individual(s) expressing political thoughts
peacefully and non-violently. The same Terrorism Prevention Act of 2011 as amended clearly
stated that activities of political parties and expression of political thoughts do
not amount to acts of terrorism.
Acts
of Terrorism are
clearly insurrectionist in nature and involve armed rebellion and use of
widespread violence against a Government and its population. According to
Section 1 of Terrorism Prevention Act of 2011 as amended; acts of terrorism
include (i) an attack upon a person's life which
may cause serious bodily harm or death; (ii) kidnapping of a person; (iii)
destruction to a Government or public facility, a transport system, an
infrastructure facility, including an information system, a fixed platform
located on the continental shelf, a public place or private property, likely to
endanger human life or result in major economic loss; and (iv) the seizure of
an aircraft, ship or other means of public or goods transport and diversion or
the use of such means of transportation for any of the purposes.
Also,
to be properly accused and investigated of involvement in acts of terrorism,
Section 2 of the Act clearly stated that for a group to be accused as a
terrorist group and individual (s) to be accused as terrorist (s), such
group (s) and individual (s) must be presidentially and judicially proscribed; provided
their violent activities are clearly in line with the definition of acts of
terrorism in Section 1 of the Terrorism Act of 2011 as amended. In the instant
case, nothing of such nature was done till date.
Unconstitutional
Laws & Court Orders On Rampage: The order exparte issued on 10th
November 2015 by Hon Justice Adeniyi Ademola of the Federal High Court Six,
Abuja Division for ninety days and above detention of Citizen Nnamdi Kanu on
phantom allegation and investigation of his involvement in terrorism and terrorism
financing is not only a height of miscarriage of justice and brazen
affront to the sanctity of the judiciary, but also threats to rule of law and
the fundamental human rights of the detained citizen. It is also a coup against
the supremacy of the 1999 Constitution and grave disrespect to the Fundamental
Human Rights Chapter of the 1999 Constitution and the African Charter on Human
& Peoples Rights.
It
is also surprising and shocking that the order exparte, which, by
convention, has short lifespan and ought to have elapsed by effusion of
time after seven or fourteen days is still made by Hon Justice Ademola
Adeniyi to subsist till date; with high possibility of its renewal ad infinitum.
That the Judge could issue or grant such order, which has the capacity to
terminate the life of the accused/detainee and have gravely undermined his
fundamental human rights particularly his constitutional rights to fair hearing and personal liberty; without
bordering to hear the other side or
the accused/detainee, is inexcusably sanction-able. That the same Judge
pretentiously ignored the grave inconsistency of Section 27 (1) of the
Terrorism Prevention Act of 2011 as amended with Section 35 (4) (a) (b) of the
1999 Constitution in the course of consideration and issuance of his gravely
flawed order; makes him an oppressor
and saboteur of the 1999 Constitution, the Judiciary and the Rule of
Law. We ask: where lies the Judge’s sense of judgment and discretionary powers in
the instant case?
Unconstitutionality
of Section 27 (1) of the Terrorism Prevention Act of 2011 as amended: The grave
inconsistency of the said Section and Section 35 (4) (a) (b) of the 1999
Constitution is highlighted as follows: Section
27 (1) of the Terrorism Prevention Act contradictorily provides: “the court may, pursuant to an exparte
application, grant an order for the detention of a suspect under this Act for
a period not exceeding 90 days subject to renewal for a similar period until
the conclusion of the investigation and prosecution of the matter that led to
the arrest and detention is dispensed with.
Section 35 (4) (a) (b) of the 1999
Constitution under right to personal liberty; directs as follows: “any
person who is arrested or detained in accordance with sub section 1 (c) (suspicion
of having committed a criminal offense carrying capital punishment) of this
section shall be brought before a court within a reasonable time, and if he
is not tried within a period of: (a) two months from the date of his arrest or
detention in the case of a person who is in custody or is not entitled to bail;
or (b) three months from the date of his arrest or detention in the case of a
person who has been released on bail, he shall (without prejudice to any other
further proceedings that may be brought against him) be released either
unconditionally or upon such conditions as are reasonably necessary to ensure
that he appears for trial at a later date”.
The black-and-white meaning
of Section 35 (4) (a) (b) of the 1999 Constitution above is that (a) no
detained citizen accused of committing capital offense in Nigeria, who has
not been released on bail or charged to appropriate court; should
be detained more than two months without being released unconditionally or
released and charged to the appropriate court; and (b) if such detained citizen has been
released on bail, but was not charged to court within three months; he or she should be released unconditionally
(discharged) or be made to face a fair trial and maximally accorded with all
judicial rights of fair hearing, access to his or her lawyers for the purpose
of adequate legal representation, etc. Contradictorily, Section 27 (1)
of the Terrorism Act of 2011 as amended, on its part, says that a
citizen detained over investigation of involvement in acts of terrorism should
be detained for ninety days subject to renewal or further detention in
perpetuity until the investigation is concluded. In other words, such
citizen can be detained investigatively for 90 days, 180
days, and 240 days and above. This is a clear return of Decree No 2 of 1984.
Call on AGF: To as a matter of uttermost immediacy
and; inexcusably prepare and send an executive bill to the National Assembly
for repealing of the unconstitutional Section 27 (1) of the Terrorism
Prevention Act of 2011 as amended in 2013; highlighted above, owing to its
grave inconsistency with Section 35 (4) (a) (b) of the 1999 Constitution and
the African Charter on Human & Peoples Rights. The AGF should critically study other provisions of the Terrorism
Prevention Act of 2011 as amended and ensure that all of such provisions are
brought in tandem or made to be consistent with the 1999 Constitution.
Call on NJC: To thoroughly investigate the roles of
Hon Justice Ademola Adeniyi of the Federal High Court Six, Abuja Division in
the consideration and issuance of the highly controversial and unconstitutional
order; on the grounds of its grave inconsistency with the 1999 Constitution and
gross failure of the Judge to consider the natural justice dictum of audi
altarem partem (listen to or hear the other side) in consideration and
issuance of the order. The Judge’s possible defense of ignorance of
these two ground premises will be inexcusably impeachable. The Judge
ought to know the difference between ratio decidendi and orbiter
dictum; and that it is not every issue that goes through the
court process that comes out in the same shape and content.
We demand that Hon Justice Adeniyi
Ademola should be appropriately sanctioned at the end; to serve as deterrent to
others.
We, again, call for immediate and
unconditional release from unconstitutional captivity of Citizen Nnamdi Kanu.
We also call for an end to the return of indiscriminate use of trumped-up
criminal charges or accusations by State security agencies under the executive
midwifery of the Buhari’s Presidency to arrest and detain citizens in
perpetuity and grossly deprive them of their constitutional and fundamental
human rights to human dignity, personal liberty, freedom of movement, association and
peaceful assembly; expression and fair hearing. We urge Your Lordship and the AGF to ensure that the public offices
under the constitutional responsibilities of Your Lordship and the AGF resist
at all times every attempt to take the country and its citizens back to the
dark era of Decrees Nos. 2 and 4 of 1984.
Yours
Faithfully,
For:
International Society for Civil Liberties & the Rule of Law
Emeka
Umeagbalasi, Board Chairman
+2348174090052
Obianuju
Igboeli, Esq., Head, Civil Liberties & Rule of Law Program
Chinwe
Umeche, Esq., Head, Democracy & Good Governance Program
Supported
By:
Southeast Based Coalition of Human Rights
Organizations (SBCHROs):
1.
Comrade Aloysius Attah
(+2348035090548)
For: Anambra State Branch of the Civil Liberties Organization
(CLO)
2. Comrade Peter Onyegiri (+2347036892777)
For: Center for Human Rights & Peace Advocacy (CHRPA)
3. Comrade Samuel Njoku (+2348039444628)
For: Human Rights Club (a project of LRRDC)(HRC)
4. Justus Uche Ijeoma, Esq.(+2348037114869)
For: Forum for Justice, Equity & Defense of Human Rights
(FJEDHR)
5. Comrade Chike Umeh ( +2348064869601)
For: Society Advocacy Watch Project (SPAW)
6. Obianuju Joy Igboeli, Esq. (+2348034186332)
For: Anambra Human Rights Forum (AHRF)
7. Comrade Alex Olisa(+2348034090410)
For: Southeast Good Governance Forum (SGGF)
8. Jerry Chukwuokolo, PhD (+2348035372962)
For: International Solidarity for Peace & Human Rights
Initiative (ITERSOLIDARITY)
9. Evlyn Chinwe Eze, Esq. (+2347019646494)
For: Street Law Africa (LawAfrica)
10. Tochukwu Ezeoke(+447748612933)
For: Igbo Ekunie Initiative (a pan Igbo rights campaigner)
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