Human rights lawyer, Femi Falana has blamed the poor advice given to President Muhammadu Buhari by the Attorney General of the Federation, Abubakar Malami for the illegal detention of Col. Sambo Dasuki and Omoyele Sowore by the State Security Service in spite of several court orders granting them bail.
In an open letter to Malami, Falana, responding to claims by the attorney general that both Dasuki and Sowore, who happens to be Falana’s client, were released on compassionate grounds.
After dismissing a number of reasons Malami had given over the years for detaining suspects beyond 48 hours and against court orders granting them bail, Falana told Malami that even as a military dictator in the 1980s, Buhari heeded the advice of his attorney general who advised him to respect court orders.
Buhari, Falana said, would have done the same if Malami had insisted.
He said, “But having belatedly deemed it fit to review your position and advise the federal government in line with the tenets of the rule of law you ought to have apologised to both Sowore and Dasuki. That is what is expected to of you in accordance with section 32 (6) of the 1999 Constitution. It is not an occasion for grandstanding or arrogant display of power”.
The letter went on to say, “Buhari miltary junta released 13 out of the several persons detained under Decree No 2 of 1984 on the basis of court orders and on the advice of the then Attorney-General of the Federation, the late Chike Offodile SAN. It was my conlusion that having complied with court orders to release detainees as a head of a military junta President Buhari would not have disagreed with you if you had insisted that court orders be obeyed.”
On the argument raised by Malami that the government had a right to appeal the bail granted to a suspect or ask for a stay of execution, Falana said, “Honourable Minister, we concede that the government is entitled to appeal against the order of bail if it is dissatisfied with it. But in the cases of Sowore and Dasuki the federal government did (not) file any appeal against the orders of bail. Hence, no application was filed for stay of execution of the orders.
“Assuming the federal government had filed an appeal against the orders of bail the mere filing of the appeal could not have constituted an order of stay of execution of the orders for bail. In Nigerian Army v Mowarin (1992) 2 NWLR (Pt 235) 345 the Court of Appeal has ruled that where the Government files an appeal against the order of a high court for the release of any person from custody the order cannot be stayed pending the determination of the appeal because the liberty of a citizen cannot be put in abeyance”.
Addressing the claims of compassion, Falana said, “In your interview, you also said that both Sowore and Dasuki were released on grounds of mercy and compassion. With profound respect, you have no power to release any detained defendant from custody on compassionate grounds.
“As you are no doubt aware, only the President and state governors are entitled to exercise the prerogative of mercy or release any convicted person on compassionate grounds by virtue of section 175 of the Constitution of the Federal Republic of Nigeria, 1999”.
