The Nigerian Media, Constraining Laws And Justiciability Of Statute (2)

This is the second instalment of the paper presented by Femi
Falana, SAN, at the Press Freedom Conference in Nigeria on Violent
Extremism, Rule of Law and the Media held at Abuja on May 3,
2019

By Femi Falana

THE other day, the Police arrested a journalist, Mr. Samuel
Ogundipe of the Premium Times stable for publishing a confidential
letter addressed to the then Acting President, Professor Yemi
Osinbajo by the iInspector-General of Police.

Even though the case was later withdrawn and struck out by the
trial court the charge could not have been sustained as the sources
of public records obtained from public officers are protected by
the Act while the Official Secret Act and other anti media laws
cannot be invoked to justify denial to official records. In the
same vein, the use of state machinery to intimidate journalists has
been outlawed. Consequently, all public officers who feel that they
have been defamed are at liberty to sue journalists and media
houses as they can no longer charge journalists with any offence
under the penal code for embarrassing them.

Right to free and compulsory basic education: When Nigeria had
not stumbled on oil wealth, the Obafemi Awolowo regime in western
region (now comprising Lagos, Ogun, Oyo, Osun, Ondo, Ekiti, Edo and
Delta states) made education free and compulsory for every child.
Incidentally, each of the governors in the eight states is a
beneficiary of the education-for-all-policy of the old Western
regional government.

The media should join issues with such governors and their
colleagues in other regions for implementing policies that have
restricted education to the children of the rich alone. This has
become necessary in view of the fact that the abandoned children of
the poor have made it impossible for rich children and their
parents to live peacefully in their mansions and ride in their
bullet proof limousines without fear.

It is time the governors and their colleagues were reminded that
the Universal, Free and Compulsory Education Act has since 2004
imposed a duty on the federal and state governments to provide free
and compulsory education for every Nigerian child from primary to
junior secondary school. Incidentally, public officers who say that
free education cannot be funded by the government are apostles of
free market economy. But in capitalist countries where free market
is advanced, the system is organized in a way that children of the
poor can access education at the expense of the State while the
rich can educate their children and wards in expensive schools.

Through the universal health care insurance scheme funded by the
State the poor can access health in the public hospitals while the
rich can afford to go to well equipped private medical centres in
any part of the world. A government that cannot educate its
citizens and provide basic necessities of life cannot be expected
to govern in an atmosphere of tranquillity. To paraphrase Peter
Tosh, the government can no longer talk of peace without justice
for the majority of our oppressed people.

The President’s private visit: A fortnight ago, it was announced
by the Federal Government that President Mohammadu Buhari had
embarked on a 10-day private visit to the United Kingdom. The terse
statement has generated some reactions from many groups which have
questioned the secrecy surrounding the private visit. The official
claim that the President is not on vacation has failed to address
the constitutional implications of the privacy of the visit of the
Head of the Federal Government which is administered on the basis
of accountability and transparency. Under the current democratic
dispensation, the movement and activities of the number one public
officer in the country cannot be shrouded in secrecy.

Whereabouts of the President

In fact, the statement made by the Senior Assistant to the
President on media affairs, Mr. Garba Shehu to the effect that “the
President can rule from anywhere” is a sad reminder of a similar
statement credited to a former Justice Minister, Mr. Mike
Aondoakaar, SAN, who once said that the President of Nigeria could
govern the country from the grave. The latter’s reckless statement
was actually made when Nigerians were trying to locate the
whereabouts of the President.

However, we have left that era of uncertainty caused by the
secret or private visits of the nation’s President. It is perhaps
pertinent to remind the Presidency that it was the secret visit of
the late President Yar’adua to a Saudi medical centre that led to
the invocation of the doctrine of necessity and the subsequent
amendment of the Constitution.

No doubt, the President is entitled to embark on local and
foreign trips to attend the engagements of family members and
friends like other citizens. But the President is not permitted by
the Constitution to abandon the enormous responsibilities of his
office for 10 days on account of a private visit to the United
Kingdom or any other country whatsoever. Since President Buhari’s
private visit to the United Kingdom for an undisclosed mission has
made it impossible for him to preside over the meetings of the
Federal Executive Council and perform other functions of his office
he ought to have transmitted a letter to the President of the
Senate and Speaker of the House of Representatives in compliance
with section 145 (1) of the Constitution so that the Vice President
can run the country pro tempore as Acting President.

Having regards to the facts and circumstances of the
controversial private visit of President Buhari he is deemed in law
to be on vacation or leave of absence for 10 days. Whether the
President is on vacation or not it is not in dispute, the issue is
that he is unable to discharge the functions of his office for 10
days. To that extent, the President has to comply with section 145
(1) of the Constitution which states that, “Whenever the President
is proceeding on vacation or otherwise unable to discharge the
functions of his office, he shall transmit a written declaration to
the President of the Senate and the Speaker of the House of
Representatives to that effect, and until he transmits to them a
written declaration to the contrary, the Vice President shall
perform the functions of the President as Acting President.”

It is now the law that the President is required to send a
letter if he is going to be away from duty post for up to 21 days.
Section 145 (2) will be automatically invoked to transfer the
powers of the President to the Vice President as Acting President
if the President is unable to transmit a letter to the leadership
of the national assembly once he abandons his duty for 21 days. In
other words, while the President shall transmit a letter to the
national assembly whenever he is proceeding on private visit or
vacation even for one day he is not required to transmit any letter
under section 145(2) of the Constitution.

The salaries and allowances of federal
legislators

Recently, the media reported that the outgoing Senate president
had given details of the budget of the National Assembly. But the
jumbo emolument of the senators was not disclosed in the so called
details. Since then, Senator Sola Adeyeye has confirmed the
disclosure by Senator Shehu Sani that the running cost of each
senator is N13.5 million. But the distinguished senator wants us to
thank him for influencing former Senate president, Senator David
Mark to reduce the running cost from N20 million to N13.5 million.
It is doubtful if Senator Adeyeye is not aware that the fixture of
the running cost is a violent violation of section 70 of the
Constitution which has vested the Revenue, Mobilisation, Allocation
and Fiscal Commission with the responsibility to fix the salaries
and allowances of members of the National Assembly.

How Buhari junta obeyed court orders to release
detainees from custody

At the 30th anniversary ceremony of the Committee for the
Defence of Human Rights held in Lagos last week, I did say that
whereas the Buhari military junta complied with orders of courts
for the release of detainees the same could not be said under the
current political dispensation. A senior lawyer in the civil rights
community has accused me of trying to flatter a military junta
which ousted the jurisdiction of the courts with respect to civil
liberties. But since we are dealing with a serious aspect of the
struggle of the Nigerian people against military and civilian
despotic rule it is pertinent to put matters in proper historical
perspective in responding to the charge.

Apart from handling fundamental rights cases under the Buhari
military dictatorship I was detained without trial under the
obnoxious State Security (Detention of Persons) Decree No. 2 of
1984. However, I can say without any fear of contradiction, that
all those whose detention was declared illegal by the courts were
released by the military dictator. Ironically, the elected Buhari
administration has continued to ignore the orders made by municipal
and regional courts for the release of detainees. In the same vein,
the orders of courts admitting criminal suspects to bail have been
treated with contempt. Since some of the victims of such abuse of
power are my clients I believe that I am in a vantage position to
speak authoritatively on the subject matter.

During the military era the Constitution was suspended while
fundamental rights were put in abeyance. In particular, the Armed
Forces and Police (Special Powers) Decree No 24 of 1967 legalised
the arrest and detention of any person involved in the breach of
national security. The law became spent and was repealed to pave
way for democratic rule in the second republic. But when the
military returned to power in December 1983 the State Security
(Detention of Persons) Decree No 2 of 1984 was promulgated by the
Buhari junta to authorise the detention anyone who contributed to
the economic adversity of the nation or who was concerned in act
prejudicial to state security or in preparation or instigation of
such acts.

For the avoidance of doubt, Section 4(1) of Decree No 2 had
provided that “No suit or other legal proceedings shall lie against
any persons for anything done or intended to be done in pursuance
to this Decree.” Notwithstanding the ouster of the jurisdiction of
the courts, a number of judges did not hesitate to order the
absolute or conditional release of detainees whose arrest and
incarceration could not be accounted for under the preventive
detention legislation. Some of the habeas corpus or fundamental
rights cases decided by the Lagos State High Court during the
period include the following:

Lamina Lawal Arowoye & 6 Others v. Inspector-General of
Police (Suit No: ID/14M/84)
The 7 Applicants were detained under Decree No 2 at Ita Oko
detention centre. The detention of the detainees was challenged at
the Lagos high court. In the judgment delivered by Wale Oshodi J.
on 6/4/1984 the detention was declared illegal, null and void on
the grounds that that “The Decree No. 2 of 1984 provides that the
detainees must be concerned in act prejudicial to State Security or
in preparation or instigation of such acts. But the purported
Orders Exhibit ‘A’ to ‘G’ stated that the detainees were detained
for acts prejudicial to public order”.

Release from detention

In Chief Sunday Ogunyade v. The Inspector-General of Police
& 2 Ors. (Suit No: ID/15D/84)
The Applicant were detained at Ita Oko detention centre under
Decree No. 2 of 1984. They sued the defendants to justify their
detention. In the judgment delivered on 11/5/84, G.O. Obadina J.
(as he then was) ordered that the Applicant be discharged and
released from detention forthwith on the grounds that “the
signature on the Order, Exhibit ‘A’ is in a photocopy. The Order
was not certified as required by Section 110 (1) of the Evidence
Act that it is a true copy of the Order made by the Chief of Staff,
Supreme Headquarters. In the circumstance, one cannot resist having
a doubt as to whether the Chief of Staff knew anything about the
detention. Doubts of this nature should not feature in a matter
that affect the liberty of a citizen. I am therefore of the view
that the Order, Exhibit ‘A’ is thoroughly defective on its face and
I therefore declared that it is illegal, null and void and of no
effect”.

Maxwell Okudoh v. Commissioner of Police, Lagos State Police
Command (Suit No: M/32/84)
The Applicant was detained at Mushin Police State in Lagos under
Decree 2 of 1984. He approached the Lagos high court to secure his
release from custody.

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