24th July, 2018
THE CHAIRMAN,
ETHICS AND PRIVILEGES COMMITTEE,
HONOURABLE BODY OF BENCHERS,
FEDERAL REPUBLIC OF NIGERIA,
31 Lake Chad Crescent,
Maitama, Abuja.
Dear Sir,
A PETITION PRESENTED AGAINST MR. ABUBAKAR MALAMI, SENIOR ADVOCATE OF NIGERIA FOR ABUSE OF OFFICE AND SCANDALIZATION OF THE LEGAL PROFESSION IN NIGERIA AGAINST SECTION 287(3) OF THE AMENDED 1999 CONSTITUTION AND RULE 1 OF THE RULES OF PROFESSIONAL CONDUCT FOR LAWYERS, 2007.
1. I bring you warmest greetings from the constituents and Apostles of Rule of Law and Constitutionalism in Nigeria.
2. I humbly write to draw your kind attention to the interview granted by MR. Abubakar Malami, Senior Advocate of Nigeria [henceforth in this petition called SAN] and published by an online media organization called Premium Times on the 19th day of July, 2018 on this link: [https://www.premiumtimesng.com/news/headlines/277085-why-nigerian-govt-cant-release-dasuki-attorney-general-malami.html]. The said interview is titled "Why Nigerian govt can't release Dasuki- Attorney-General Malami". In the interview, Mr. Malami stated thus:
3. "What I want you to know is that issues concerning law and order under Muhammadu Buhari are sacrosanct and obeying court order is compulsory. However you should also know that there is a general consensus world over that where the dispute is only between individuals, then you can consider the issue based on the instant situation. But if the dispute is about an issue that affects an entire nation, then you have to remember that government is about the people not for only an individual. So you have to look at it from this perspective. If the issue about an individual coincides with that which affects the people of a nation and you are now saying the government did not obey a court order that infringes on a single person's rights. Remember we are talking about a person who was instrumental to the deaths of over one hundred thousand people. Are you saying that the rights of one person is more important than that of 100,000 who lost their lives? Reports have shown that there was massive mismanagement of funds meant for military hardware which the military could not access and that led to the death of many, embezzlement of the fund and because of that many people have lost their lives. Obeying the court is not the issue per say. Are we going to take the issue of an individual more important than that of the people? The government's main responsibility is for and about the people. The essence of governance is to better the lives of its people. So you have to weigh it based on that; the rights of an individual or the rights of the people."
4. I note in passing that some senior members of the Bar have all weighed in and lent their voices in condemning the continuous detention of the former National Security Adviser, Rtd. Col Dasuki in the face of six Court orders admitting him to bail as same is lawlessness on the part of the government of the day which Mr. Malami SAN serves as its Chief Law Officer and Legal Adviser.
5. REASONS FOR THIS PETITION:
6. My reasons for presenting this petition to you are understandably manifold but for economy of space, I would scale them down to three. Like a Lady's skirt, this urgent petition of grave concern promises to be short enough to be attractive but equally long enough to cover all the essential parts of the issues under scrutiny.
7. First and foremost, [by the infinite mercies and grace of God Almighty] I am a proud member of this most honourable profession on this planet earth, the legal profession, just as Mr. Abubakar Malami, SAN. And it is hardly disputable that the future of democracy in every civilised society lies on the shoulders of lawyers.
8. Secondly, the office of the Attorney-General of the Federation is recognised as a great historic office that places its occupier in the rare position of the "Keeper of the King's conscience", the Chief Law Officer/Legal Adviser not only to the President of the Nation alone but equally to the entire Federal Government with all the Ministries, Departments and Agencies thereunder. Added to these super responsibilities, by the ancient and ever-unbroken tradition of our profession, the Attorney-General of the Federation [henceforth in this petition called the AGF] is rightly acclaimed the "Leader of the Bar." The third crucial reason for this urgent petition is the lessons of precedents. The pre-eminent and incontestable position of the Attorney-General, under the common law, as the chief law officer of the State, either generally as a legal adviser or specially in all court proceedings to which the State is a party, has long been recognised by the courts[State v. Ilori (1983) 2 S.C. 155]. The enormous powers bestowed on the AGF by our Constitution have been acknowledged as a great ministerial prerogative coupled with grave responsibilities. It follows therefore that however Mr. Malami, SAN decides to exercise these awesome powers donated to his office today will definitely form a precedent for the future. Mr. Abubabakr Malami, SAN is a high-ranking member of this ancient and noble profession by reason of which he is expected to be a shining example especially as it relates to his fidelity to the laws of the land particularly the Constitution which is the fon est origo.
9. Finally, being a Minister in the Temple of Justice who has equally been charged to remain consistent in defending the Constitution of the Federal Republic of Nigeria and the Rule of Law generally, I consider this petition a discharge of duty that I owe my society in conscience so that propagation of legal heresy will not be allowed to take root in our society.
10. STATISTICS:
11. It is no longer news that the High Court of Federal Capital Territory [per, the Honourable Justice Huseni Baba-Yusuf] granted bail to the former national security adviser, Colonel Sambo Dasuki (Rtd). The same Court equally granted him bail [per, the Honourable Justice Afen] in another charge brought against him by the Federal Government. Sometime in January, 2017, the same F.C.T. High Court, presided over by the Honourable Justice Huseni Baba-Yusuf was moved by Mr. Ahmed Raji, SAN to re-affirm the bail earlier granted Mr. Dasuki. Again in April, 2017, the Federal High Court [sitting in Abuja, per the Honourable Justice Ahmed Mohammed] was similarly moved by Mr. Ahmed Raji [Dasuki's Counsel] to re-affirm the bail earlier granted Mr. Dasuki by the said Court since 2015. On the 4th October, 2016, the Court of the Economic Community of West African States, ECOWAS, declared the arrest and detention of former National Security Adviser, Sambo Dasuki, as unlawful and arbitrary. The court also held that the further arrest of Mr. Dasuki by government on November 4, after he was granted bail by a court of law, amounts to a mockery of democracy and the rule of law. At the last count, there are six court orders admitting the former National Security Adviser to bail and commanding the Federal Government of Nigeria to release him which have all been spurned and ignored as Mr. Dasuki is still in detention.
12. THE NATIONAL ASSEMBLY WEIGHS IN:
13. On Thursday, the 26th day of January, 2017, the Federal House of Representatives, resolved to urge the Executive arm to direct security agencies to obey court orders, especially those relating to bail and production of accused persons in Court for trials; and mandate the Committee on Human Rights and Justice to investigate cases of detention of accused persons beyond the statutory period in contravention of subsisting Court Orders granting them bail, failure to release or produce accused persons in Court for trial and prevail on the offending agencies to ensure their releases and report to the House within four (4) weeks for further legislative action. Interestingly, on the same legislative day, the Federal House of Representatives considered and adopted a motion titled "Need to check persistent Fundamental Human Rights Breaches and Acts of Impunity by Security Agencies". After a robust and wide-ranging debate on the Motion, the House noted that the Chapter Four of the Constitution of the Federal Republic of Nigeria,1999 and the African Charter on Human and Peoples Rights, guarantee, among others, rights to peaceful assembly, personal liberty and freedom of movement but concerned about the rising cases of violation of those rights; also noted the air of impunity with which the personnel of the security agencies treat citizens and the worrisome tendencies to disobey court orders; concerned about the recent arrest and detention, on 22nd December, 2016, of some members of Civil Society Organisations, such as Lawyers in Defence of Democracy, National Youth Council of Nigeria and Citizens for Good Governance by the State Security Service for allegedly planning a peaceful protest and they have remained in detention for over 29 days since their arrests without being charged to Court or released. The House resolved, among others, to mandate the Committee on Human Rights, Police Affairs, National Security and Intelligence and Justice to investigate this incident and all other cases of unlawful arrests and detention of citizens and disobedience of Court Orders since June, 2015 and report to the House within four (4) weeks for further legislative action.
14. THE CHIEF JUSTICE OF NIGERIA WEIGHS IN:
15. When he appeared before the Nigerian Senate for his confirmation, the current Chief Justice of Nigeria, on the 1st of March, 2017 roundly condemned the rampant cases of disobedience to Court Orders. Fielding questions from the lawmakers, the CJN said the challenge of disobedience to court orders "is for the legislature and the executive to handle." He said the judiciary would welcome that day that court judgments would be respected and carried out after exhaustion of the right of appeal. That will mean the independence of the judiciary, he added. If rulings are not respected, the judge continued, they would just be "mere piece of paper." "Anyway, disobedience of court order is an act of impunity," he said. Yet again in January, 2018, the Honourable the Chief Justice of Nigeria seriously warned against the grave consequences of disobeying Court order. He gave this warning as the guest lecturer at the first University of Lagos (UNILAG) Faculty of Law public lecture at the varsity's main campus in Akoka, Lagos. The CJN spoke in a 17-page speech entitled: "The Rule of Law as Panacea for Peace, Security and Good Governance."
16. Hear him: "Any government that is against the enthronement of the rule of law is by implication inviting anarchy into the system. A democratic government must not only obey the law but also courts' orders,"
17. WARNINGS OF OUR COURTS:
18. The Nigerian Court of Appeal in the memorable case of Balonwu v. Obi (2007) 5 NWLR (Pt. 1028) 488 at 538 Paras.C- E, 564-565 Paras.B – G, has this to say on disobedience to sacred Orders of Court;
19. "An order of court whether valid or not must be obeyed until it is set aside. An order of court must be obeyed as long as it is subsisting by all no matter how lowly or highly placed in society. An act of disobedience towards an order of a court can render any further act by those who have acted disobediently to sanctions from other court because no court would want its orders flouted. This is what the rule of law is all about hence the courts have always stressed the need for obedience of court orders…Obeying court orders is both legal and moral obligation but you find that court orders are toyed with both by lawyers and the litigating public. Indeed for the politicians, the rule of law is non-existing until it suits their purpose, and it is only then it is observed to the letter. Without a strict adherence to the rule of law, our nascent democracy and indeed our Constitution will only be worth the paper on which it is written. What makes a great country is adherence to the rule of law. Even in hell, there is order and discipline."
20. Indeed, all the existing Supreme Court authorities lean heavily in support of the long-established postulation that disobedience of Court Order (otherwise called contempt of Court) is an abomination of the rankest specie just as it is an anathema in every democracy worth the name as it holds the key to the floodgates of anarchy and societal destruction. Condemning this cancerous vice, the Supreme Court, in the case of Hart v. Hart (1991) 21 N.S.C.C. (Pt. 1) 184 at 199, had these unkind words for those who disobey Court orders (contemnors);
21. "I would like to state that obedience to Orders of Courts is fundamental to the good order, peace and stability of the Nigerian nation. The ugly alternative is a painful recrudescence of triumph of brute force or anarchy, a resort to our old system of settlement by means of bow and arrows, machetes and guns or, now, even more sophisticated weapons of war. Disobedience to an order of Court should, therefore, be seen as an offence directed not against the personality of the Judge who made the Order, but as a calculated act of subversion of peace, law, and order in Nigeria society. Obedience to every Order of Court is therefore a duty which every citizen who believes in peace and stability of the Nigerian State owes to the nation. To allow Court orders to be disobeyed would be to tread the road toward anarchy. If orders of the Court can be treated with disrespect, the whole administration of justice is brought into scorn…If the remedies that the Court grants to correct wrongs can be ignored, then, there will be nothing left for each person but to take the law into his own hands. Loss of respect for the Court will quickly result in the destruction of our society"
22. To cap it all, the Constitution by its Section 287(3) lucidly provides in the very words which I would now most respectfully reproduce;
23. "The decisions of the Federal High Court, the National Industrial Court, a High Court and of all other Courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other Courts of law with subordinate jurisdiction to that of the Federal High Court, the National Industrial Court, a High Court and those other Courts, respectively"
24. SUMMATION:
25. What patently emerges from the concatenation of the instances of executive impunity and lawlessness most dispassionately surveyed above comes to the ineluctable conclusion that the present Federal Government of Nigeria, which Mr. Malami, SAN is saddled with the onerous duty to offer sound legal advice, has most unfortunately fallen into the cesspit of tyranny, lawlessness and impunity. Most of its security agencies (especially) have pathetically constituted themselves into the sinkhole of constitutionalism, Rule of Law and sacred human rights of great Nigerian Citizens.
26. THE CASE AGAINST MALAMI, SAN:
27. Nothing projects more the enormity of Malami's iniquity than the interview he granted which prefaced this petition. Therein, Malami SAN made it clear that the decision of who should be released from detention belongs to the Federal Government as against the Courts. This is extremely absurd, disgustingly confounding and exponentially scandalous to say the least. Abubakar Malami, SAN is primarily a Lawyer which qualified him to be the Minister of Justice today. He is therefore unquestionably bound by the Rules of Professionally Conduct enacted by the General Council of the Bar. Of prominent importance is the Rule 1 thereof which states that "A lawyer shall uphold and observe the rule of law, promote and foster the course of justice, maintain a high standard of professional conduct, and shall not engage in any conduct which is unbecoming of a legal practitioner."
28. Malami's position on Dasuki is not an example to be followed by his juniors in this our profession and he should be told so. Any genuine war against corruption should ordinarily command the support of all men of goodwill. However, nobody should be allowed to hide under the guise of supporting the war against corruption to undermine and spurn our Constitution by pulling wool over the eyes of undiscerning members of the public. That a government can keep a citizen behind bars despite avalanche of valid Court orders is rather mind-boggling. However, that the defence of such impunity could emanate from the head and mouth of a Senior Advocate of Nigeria [and more so the Chief Law Officer of the Federation] makes it most unfortunate.
29. END:
30. Head or tail, Malami, SAN cannot be allowed to enthrone let alone perpetuate a dangerous precedent. He is traumatizing our settled constitutional jurisprudence and the brazen assault must now be halted.
31. The point I have been struggling to make is that if the law loses its respect and fails to command obedience from the citizenry, we lawyers will definitely close shops. After all the alluring benefits the princely legal profession has bestowed on Mr. Malami, SAN, it would be most uncharitable for him to precipitate the collapse of law practice in Nigeria. While it is true that the Leadership of the Nigerian Bar and the Body of Benchers may not possibly take a position on all issues afflicting our nation since they are almost overwhelming, it is equally true that the Leadership of the Nigerian Bar and Body of Benchers cannot afford to look the other way when the organic law of the land is suffering indignity in the hands of the Attorney-General of the Nation. That would be one indifference rather too many.
32. In Conclusion, Sir, it is good we remember that while it may seem to be Dasuki's turn today, nobody knows whose turn it would be tomorrow. Since the law and the law only is my constituency, I am only writing in defence of the future of our democracy. I know that the Honourable Attorney-General of the Federation is a powerful man. Indeed, a man of immense power. He could order for my arrest, he could dredge up trumped up charges against me to put me out of circulation or such other untoward backlashes as a result of this petition. As for whatever backlash that might befall me for my courage to petition you on this important issues of our realm, I take refuge and solace in the protection of God Almighty who inspired the legendary Thomas Paine to declare that "if there must be trouble, let it be in my own day so that my child may have peace.".
33. PRAYER:
34. The prayer of this petition is for the Ethics and Privileges Committee of the Honourable Body of Benchers to examine all the allegations raised against MR. ABUBAKAR MALAMI, SAN, and determine whether in the light of the bundle of facts, circumstances and the applicable laws/rules cited he is still worthy to continue to bear the privileged rank of a Senior Advocate of Nigeria and if not, to exercise your undoubted disciplinary jurisdiction over him by awarding the appropriate sanction. I find here a convenient place to stop.
Yours in the preservation of democracy,
Johnmary Chukwukasi Jideobi, Esq.
Cc: The Honourable the Chief Justice of Nigeria.
