SOWORE: HURIWA CONDEMNS PROLONGED DETENTION OF ACTIVIST BY DSS:..... *SAYS courts may have been impeded to exercise independence:

A prominent pro-democracy and civil Rights advocacy group- HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) has condemned the Federal High Court of Nigeria over the prolonged detention of Citizen Omoyele  SOWORE just as the Rights group said the Courts may have succumbed to the avalanche of psychological warfare using the anti-graft bodies and security forces by the central government to diminish and cripple the constitutional independence of the judiciary.

HURIWA said there is no possible justifiable reason for the untold psychological and physical torture being faced by the publisher of Saharareporters.com Mr. Omoyele SOWORE only because he is alleged to have masterminded a peaceful and constructive civil Rights action they decided to call REVOLUTIONNOW. 

HURIWA said the detention of the activist alongside many other protesters rounded up all across Nigeria following a brutal crackdown by armed police operatives is a grave set back which has adversely affected the enjoyment of the constitutionally guaranteed freedoms enshrined in various international and local statutes just as the Rights group absolutely condemned the cowardice of the Courts to continuously deny bail to the Nigerian citizen even when the exercise of bail is at the discretion of the judges and not subject to the whims and caprices of a fast emerging dictatorship in Abuja Nigeria.

HURIWA recalled that in early August the presidential candidate of African Action Congress (AAC) Omoyele Sowore was arrested by Operatives of the Department of State Services in a commando styled operation staged in the wee hours of the night which was akin to the operational mode of armed kidnappers.

Sowore also a renowned human rights activist and online blogger, pro-democracy campaigner, founder of online news agency Sahara Reporters was arrested in the wee hours of Saturday morning at his home.

HURIWA  recalled that  the African Action Congress (AAC) had declared 5th August for the commencement of revolution protest tagged ‘ Days of Rage’ across the country to demand a better Nigeria but the main organizer Mr. Sowore was picked up on August 3rd and has remained in detention of the DSS since then.

HURIWA recalled too that Mr. Omoyele Sowore, disclosed recently in Abuja at the end of the party’s National Executive Committee (NEC) meeting that the protest would be sustained until the country is put on the right path of honour where justice prevails.

His words,” Election was an opportunity to carry out a revolution of ballot box but they stole the ballot box. They hijacked materials that were meant for a free and fair election and as a result, they did not organise any election that was credible enough for people to have faith in the ballot box.”

Sowore also stated the democratic objective of the civil action thus:  “The revolution has, therefore, become inevitable. We didn’t choose to go for revolution; they chose it by ensuring that there was no level playing field".

However, HURIWA affirmed that clear five days after making the public announcement, he was whisked away into detention the DSS produced him in Court just as the federal high court sitting in Abuja unfortunately granted the Department of State Service (DSS) the permission to detain the convener of #RevolutionNow movement, Omoyele Sowore, for 45 days.

HURIWA recalled that the judge, Justice Taiwo Taiwo, ruled that the detention order is renewable after the expiration of the first 45 days on September 21.

HURIWA recalled that   the DSS  filed an ex-parte application to keep Sowore for 90 days to investigate him over his call for revolution through the #RevolutionNow protests which held in some parts of the country on Monday, August 5.

HURIWA recalled that Justice Taiwo, said he had to grant the application, “only to the extent” of allowing the security agency to keep the respondent in custody for only 45 days for the applicant to conclude its investigation. 

Again, HURIWA stated that on August 28th the Federal High Court declined to hear Sowore's bail application.

Justice Nkweonye Maha said she did not have the jurisdiction to review the decision by Justice Taiwo Taiwo. She noted that the ruling of the vacation judge stated the matter would be heard on September 21.

The judge said she had no authority to proceed or review the judgment of her colleagues and that she would like to preserve the order of the court.

HURIWA citing available information said that in his argument Sowore's lawyer, Femi Falana, argued that in line with order 26 of the federal high court procedure stated that anybody who is affected by an ex parte order can approach the same court to set aside such order. See ONOGORUWA VS IGP.

He Barrister Falana submitted that Sowore's application was bordered on a violation of human rights and the judge (Maha) had the right to hear and review the previous order.

Falana said the judge would do justice to the case by hearing it, adding that the applicant was unnecessarily being punished in detention. He, therefore, made an oral application for bail of the applicant.

But the judge held that the matter be referred to the vacation judge and said that there was nothing before her to grant the bail application.

HURIWA however has dismissed the decisions of the two judges of the Federal High Court as acts of cowardice and that their refusal to exercise their discretionary powers of bail has undermined constitutional democracy.

In a statement by the National Coordinator Comrade Emmanuel Onwubiko and the National Media Affairs Director Miss Zainab Yusuf, HURIWA stated as follows: "The right to bail is intrinsic to the fundamental rights to personal liberty and presumption of innocence provided under sections 35(1) and 36 (5) of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 (as amended).

This right to personal liberty was underscored by the Court of Appeal per Ogundare JCA (as then was) in the case of COMPTOLLER OF NIGERIAN PRISONS V. ADEKANYE (1999) 10 NWLR (PT.623) 400, 426-427, Paras.G-B in the following words:

“Freedom is no doubt the greatest gift or heritage of man. Omnipotence created man and accorded him with divine freedom. Men are born free with liberty to think what he will, to say what he will and go to where he likes, all in a lawful manner, without let or hindrance from any other persons, private or governmental authorities.  It therefore follows that, generally, detention of a man is a violation of the law of God and man. I am not oblivious of the fact that there are checks and balances to the series of freedom given to man. To the extent to which a man must not do his things in a way calculated to injure or adversely affect the exercise of the freedom of another man, his freedom is limited.

Bail can be administrative. In this regard section 35(4) of the CFRN states that a person who is arrested is arraigned before a court of competent jurisdiction within a reasonable time.  By section 35(5)(a)CFRN a person must either be granted bail within one day if the arrest or detention is at a place where there is a court of competent jurisdiction within a radius of forty kilometers. However by section 35(5)(b) where there is no court within the specification, the person is entitled to bail within two days or such long longer period as the court deems reasonable. Thus once there is a court within forty kilometers radius and the offence is bailable, a person must either be charged to court as such or granted bail within one day. Again, even where there is no court within the specification, a person is cannot be held for more than two days except there is a court order to that effect.

Besides administrative bail, there is court bail. It has been held in a plethora of authorizes including the case of Dogo v. Commissioner for Police (1980)1 NCR 14 at 19, Paras.10-15 that the primary consideration of the Court in granting bail is whether the Defendant will be available to stand his trial and that if the court is assured of that, bail should not be refused to punish the Defendant who still enjoys the privilege of the presumption of innocence. In the case of Danbaba v. State (2000) 14 NWLR (Pt.687) 396, the court held that conditions attached to grant of bail must not be suffocating, unbearable, unworkable and unduly burdensome.

Court bail may either be on a fundamental right application or application at criminal trial. The former is provided under Order 4 Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009 which provides thus:

“The Court may, if satisfied that exceptional hardship may be caused to the Applicant before the service of the application especially when the life or liberty of the applicant is involved, hear the applicant ex parte upon such interim reliefs as the justice of the application may demand.”

In hearing the ex-parte application, the court has discretion under Order 4 Rule 4(c) to “Grant bail or order release of the Applicant forthwith from detention pending the determination of the application”.

A lot of judges are yet to appreciate the foregoing provisions. They outrightly refuse any application for the grant of bail of an applicant on the excuse that such a person has not been charged for a criminal offence before them.  A person can be granted bail or released from detention on an application for the enforcement of his fundamental right. Bail does necessarily attach to a particular form of judicial procedure or proceedings but the liberty and freedom of an innocent person.

In the light of the latter, criminal charge does not derogate from the fundamental right of a person as if to pre-judge and condemn an otherwise innocent person. Following the CFRN, section 158 of the Administration of Criminal Justice Act 2015 (ACJA) provides that anyone charged with criminal offence is entitled to bail.

By the provisions of ACJA, offences are grouped into three (3) categories for the purposes of bail pending trial. The first category is capital offence under section 161 where the Defendant is generally not entitled to bail except by the High Court under special circumstances like: (a) ill health of the applicant which shall be confirmed and certified by a qualified medical practitioner employed in a Government hospital, provided that the suspect is able to prove that there are no medical facilities to take care of his illness by the authority detaining him; (b) extraordinary delay in the investigation, arraignment and prosecution for a period exceeding one year; or (c) any other circumstances that the Judge may, in the particular facts of the case, consider exceptional. And although only a High Court can grant bail under this head, the application may be orally or in writing by virtue of section 32(3) of ACJA notwithstanding it is before a court of record which ordinarily requires a formally filed application.

The circumstances for grant of bail in capital offence cases were equally stated by the Court in the case of Bolakale vs. State (2006) 1 NWLR (Pt.962) 507 at 518, Para B per Muntaka-Coomassie, JCA.

The second category relates to offences carrying a sentence exceeding three (3) years under section 162. Here the Defendant is entitled to grant of bail by the court except certain facts are proved to exist.  The section provides thus:

"A defendant charged with an offence punishable with imprisonment for a term exceeding three years SHALL on application to the Court, be released on bail except in any of the following circumstances:

(a) where there is reasonable ground to believe that the defendant will, where released on bail, commit another offence;

(b) attempt to evade his trial;

(c) attempt to influence, interfere with, intimidate witnesses, and or interfere in the investigation of the case;

(d) attempt to conceal or destroy evidence;

(e) prejudice the proper investigation of the offence; or

(f) undermine or jeopardize the objectives or the purpose or the functioning of the criminal justice administration, including the bail system."

While considering section 162 of the ACJA in the case of Abednego Ogede vs Federal Republic o Nigeria (2018) LPELR-46816(CA) the Court of Appeal, Lagos Division held thus:

“It is obvious that the above provision was framed in mandatory language to the effect that the trial Court has no discretion when considering an application for bail when the accused person was charged with an offence punishable with imprisonment for a term exceeding three years. Unless it is shown that the circumstances in Section 162 (a) to (f) are shown to exist, a Court is bound to grant bail to an accused. It is important to note that legislature has by the provision of the Administration of Criminal Justice Act,2015, Section 162 thereof, codified the criteria to be considered in granting or refusing bail, which has been expressed in several decisions of the Apex Court including BAMAIYI v STATE [2001] 8 NWLR (PT. 715) 270; ABACHA v STATE [2002] 5 NWLR (PT. 761) 638; SULEMAN & ANOR v COP., PLATEAU STATE [2008] 8 NWLR (PT. 1089) 298. But it must be said that by Section 162 ACJA, the only circumstances upon which a Court can refuse to admit an accused person to bail are those stated in paragraph (a) to (f) thereof. The provision admits of no discretion in matter it provides for.”

In the case the 3rd Defendant was charged with an offence which penalty on conviction is life imprisonment, the Court held the refusal of the trial court to grant him bail to be wrongful not being an offence covered by section 161 of ACJA.

The third category deals with offences carrying a maxim sentence of three (3) years and below under section 163 of ACJA which the court would most naturally grant bail.

Bail may still be granted pending appeal after the conviction and sentence of a Defendant.

However bail can be cancelled at the instance of the Attorney General of the Federation under section 169 of the ACJA. Where a defendant has been 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."