Justice Aguda Was Detained The Day He Became Botswana Chief Justice

By Richard Akinnola

On February 3, 1972, the traveller alighted from a Pan Am flight from Lagos to Jan Smut Airport, Johannesburg. The traveller, along with two other Nigerians, enroute Botswana, were to spend the night at a holiday Inn in Johannesburg, for their onward journey to Garborone , capital of Botswana, the next day. Justice Akinola Aguda was on his way to assume as the first African Chief Justice of Botswana.

However, that accommodation arrangement was not to be as this traveller, Justice Dr Akinola Aguda, and the two other Nigerians, one Mrs. Karumi, the wife of the then Nigeria’s Finance attache in the Botswana High Commission and her three month old baby, were to pass their night in “detention” due to a mix-up in their immigration formalities.

The South Africa immigration authorities “detained” them till the following day after which they were released and subsequently offered an apology. For a person who deeply felt that under no circumstance should a person’s freedom be circumscribed or deprived by the state, now to be detained himself, struck an ironic twist of fate.

As a lawyer and a judge, Dr. Aguda held strong views on the sustenance of fundamental Human Rights of citizens, particularly the rights to liberty. Despite ouster clauses in preventive Detention decrees which purported to oust the jurisdiction of the courts in matters relating to detention during military governments, Dr. Aguda held a contrary opinion and as a judge, his opinion on this matter later became a reference point in preventive detention cases.

It was the popular case of Chief Mojeed Agbaje Vs Commissioner of police, Western State (suit no. M/22/69) which Dr. Aguda handled, barely one year as judge. Despite the political nature of the case, Dr. Aguda exhibited profound courage and intellectual prowess in the face of executive threats. It was a case that served as the litmus test of the Armed Forces and police (Special powers) Decree 2.

Chief Mojeed Agbaje, a prominent Ibadan Lawyer was arrested and detained by the police in respect of the Agbekoya riots in the former Western Region in 1969. Following his detention, Chief Agbaje, through his counsel Chief Richard Osuolale Akinjide filed an application of Habeas Corpus. But the police in its defence, argued that Chief Agbaje was detained by the Inspector General of police by virtue of the powers conferred on him by the Armed Forces and police ( Special powers) Decree.

Within six days, Justice Aguda heard arguments and delivered his ruling, the expeditiousness which earned him accolades from the Court of Appeal before which the matter later went.

In ordering the immediate release of Chief Agbaje from detention, Justice Aguda held that the Inspector General of the police had to strictly comply with the provisions of the Decree under which it purported to be acting.

He said: “In these circumstances, there is cast upon the Inspector-General of police the onus to establish before any Court in which the exercise by him of powers conferred on him by the above provision has been challenged that he has complied strictly with the enactment under which he has acted. Not only that, but it must also be shown that every other person acting under this control or in purported execution of his orders complied strictly with the provisions of the Decree. Any material decision from the provisions of the Act must in my view render the detention of any citizen of this country null and void, an act for which the writ of Habeas Corpus is an appropriate remedy.”