Femi Falana (SAN), human rights lawyer, was a guest on Channels Television’s programme ‘Sunrise Daily’ on Tuesday where he spoke on judiciary, human rights and democracy. TEMIDAYO AKINSUYI who monitored the session brings the excerpts:
When people are suffering human rights abuses, some people say lawyers are actually at the roots of these sufferings? Is it a fair commentary?
That is very much true in the sense that the Federal Government and each of the 36 state governments have an Attorney- General who gives legal advice . The Attorney-Generals are regarded as the official Bar. For those of us out there who are private legal practitioners, we also play a role. Take for instance, the Nigerian Bar Association (NBA) has 125 branches territorially across the country and it is in the constitution of the NBA that human rights and rule of law shall be defended. What has happened over the years is that we have a new human rights regime in our country, on paper that can be compared with that of any advanced democracy anywhere in the world. Unfortunately, the official bar and the private bar have not taken the issue of human rights and rule of law seriously. Take for instance, under the current political dispensation; no Nigerian shall be detained in any detention centres in Nigeria without a monthly inspection of the facility by a Chief Magistrates or a judge of a Federal High Court. In other words, you can no longer have indiscriminate arrests and detention. The constitution provides that anybody who is arrested by the police shall be taken to court within 24 or 48 hours but there are Nigerians who are languishing in police custody for months and years and Nigerians are not bothered. Take the Terrorism Act for instance; as draconian as the law is, it provides that before you arrest a Nigerian, you will go to a Federal High Court and obtain an order. If you want to search his house, you obtain an order like a search warrant. If you want to seize his phones, you get an order because your right to liberty, your right to the liberty of your home is constitutionally entrenched. So, if you want to violate any of those rights, you must obtain a court order. But what happens in Nigeria? You go and invade somebody’s house in the dead of the night. When you have kept him for few days, you suddenly realise that you need a court order and then you quickly rush to the court. No! That is not our law.
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But don’t you think the responsibilities should shift to the government as lawyers cannot do so much?
Lawyers can do so much and that is what we have been doing in Nigeria until recently.
You said the law is good on paper, are you saying it is not institutionalised?
You need the Bar to institutionalise it. For instance, I pleaded with the former Chief Justice of Nigeria, Honourable Walter Onnoghen, I requested him that Section 34 of the Criminal Justice Act provides that Chief Judges shall designate Chief Magistrates to visit police stations. Before then, I had written a similar letter to Chief Judge of Lagos State, Justice Opeyemi Oke who just retired and without wasting time, she designated a magistrate. I also wrote a similar letter to Chief Judge of the FCT, Hon Justice Ishaq Bello also acceded to our request. Instead of writing to all the Chief Judges in the country, we now wrote to the Chief Justice of Nigeria and again without wasting time, a directive was given to all the Chief Judges of the states. All of them have designated a Chief Magistrate to visit the police stations. Apart from the Ikorodu Branch of the NBA led by Mr. Bayo Akinlade, no other branch of the bar ensures that the magistrates are accompanied to the police stations. I have a running battle with the Chief Judge of the Federal High Court. In spite of the directive of the CJN and chairman of the National Judicial Council (NJC), the Federal High Court did not designate the judges to visit other detention facilities of the military, EFCC, ICPC and all of them. So today, we have not less than 150 people being detained by the Navy in various detention facilities: Calabar, Warri, Port Harcourt and Lagos. In fact, 10 of the detainees are being kept in a ship on Marina in Lagos Island for the past 13 months. 57 are in NNS Cell in Apapa. Now, if the judges of the Federal High Court have been designated and they have been visiting these detention facilities, you won’t have all these illegal detentions. That is why I said on paper, we are okay but in terms of actualising the rights of our people, we are not there.
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How much can these visits of these Chief Magistrates achieve if we don’t improve on the wheel of justice which grinds slowly?
Look at Omoyele Sowore for example. When a judge orders that he be kept for 45 days, we almost blew the roof that how can he do that? But I just laughed because there are other Nigerians who have been languishing in prisons for months and years. Now, when you now look at what is going on in our country, it is very simple and straightforward. It has nothing to do with the slow approach of our system. On a daily basis, the Police raid communities. On the roads, people are arrested and railroaded to detention centres of the Nigerian Police. On what ground? They say you are committing wandering or loitering whereas as far back as 1989, the law on wandering, the vagrancy law has been abolished. Yet on daily basis, people are still being arrested for wandering and sometimes, they are taken to court. You need the president of the Nigerian Bar Association that can walk to the Inspector-General of Police (IGP) and say ‘ Please, can we agree that this cannot happen in our country again? This is the law banning wandering, this is the law banning media parade of suspects in Nigeria’. If you must know the Anti-Torture act has banned media parade of suspects in Nigeria; keeping anyone in underground cells, keeping anybody incommunicado. Sometimes when I speak with senior police officers, they are not even aware of the provisions of these laws not to talk of the rank and file. What has happened is that the poor and indigent people in our country are at the receiving end of our law.
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Is there any way of stemming this tide?
The only way we can stem the tide is to be armed with the law and the laws are adequate. What we are doing now is to mobilise the human rights community, mobilise the Bar so that we can become the guardians of the human rights of our people particularly at the rural areas. I am very confident that we will get there.
What do you make of court orders given but are not honoured ?
That is where the Attorney-Generals come in because no government, be it colonial or indigenous, military or civilian will disobey a court order without the connivance of the Attorney- General. Because if a court order is given, what the government does is to ask the Attorney- General ‘ What do we do?’ If the Attorney-General says ‘Mr. President, we have to obey this order’, the order will be obeyed. But once the Attorney- General says ‘Sir, don’t worry, file an appeal, we will stay the execution of the judgment’. Of course, the governor or President will feel relaxed. That is why you are now told these days that national security supersedes or takes precedence over court order. National security is to be determined by the courts.
You bring out the files for the courts to determine whether the detention of somebody is in the interest of national security. I was involved in one of the cases. And what did the government say? Office of the Attorney- General said ‘My Lord, if we release this people, they may be attacked in town and that will lead to breach of the peace’. But the judge said ‘Don’t say that here. If you know somebody will be attacked, provide him with security but you can’t put somebody in prison and say for protective custody. Does he have Ebola which is an infectious disease?