Femi Falana

For having the cheek to organize #RevolutionNow, Mr Omoyele Sowore, publisher of Saharareporters, an online medium, has been taken out of circulation by the All Progressives Congress (APC) -led Federal Government. Despite that Sowore was in the slammer, the protest went on in many parts of the country, though the government issued a self-congratulatory statement thanking Nigerians for not heeding the call to come out. Since then, it has been as if the government stirred the hornet’s nest as human rights campaigners home and abroad have been firing verbal Exocets at the security people.

One of the critics is Mr Femi Falana, a Senior Advocate of Nigeria and human rights stormy petrel who, in this interview with Ademola Adegbamigbe, punctured hole in government’s position on the Sowore matter, arguing to the bargain that APC is guilty of the same offense it once accused the Peoples Democratic Party of-a case of deja vu!

What is your view on the travails of Omoyele Sowore now?

I met Mr. Sowore in the custody of the State Security Service in Abuja last week. He was in very high spirits. I believe that at the end of the day he will come out stronger and more committed to the task of nation building. At the same time he would have learnt some lessons from his travails. But Mr. Omoyele Sowore is in a familiar terrain. As a former student leader and as a publisher of the Sahara Reporters he has had a running battle with the neo colonial State. 

The State has a way of playing into his hands. The other day, an influential member of the ruling class wanted to liquidate the Sahara Reporters, an online medium published by Mr. Sowore. He filed a libel suit against him in a high court. And without hearing Mr. Sowore in the matter, the trial judge awarded N4 billion against the publishing outfit. We asked one of my colleagues, Mr. Stanley Imhanruor to take up the matter. He did and successfully ensured that the entire one sided judgment was quashed by the Court of Appeal while the N4 billon award was set aside.

In the instant case, Mr. Sowore was arrested before the revolution now protests took off. So he is only being interrogated over the statements made by him and certain people that he met. Meanwhile, those who were arrested for actually partaking of the protests in Lagos State, Osun State and Cross River State have been charged with unlawful assembly and breach of the peace in the Magistrate Courts. They have since been granted bail pending trial. If the State concedes that the Nigerian people have the fundamental right to protest peacefully why charge peaceful protesters with unlawful assembly? Is there peace in Nigeria to be breached by Mr. Sowore and his comrades? The Nigeria Police Force had announced that Mr. Sowore had committed treason, treasonable felony and terrorism. The State Security Service equally announced that he had concluded plans to overthrow the Buhari administration. If the security forces had reached those far reaching conclusions, what is the basis of having the suspect gaoled for 45 days? From my experience with cases of this nature, Mr. Sowore’s arrest and detention may turn out to be a storm in a teacup.

You have been critical of the government’s handling of the #RevolutionNow protest and its arrowhead. Are you not concerned about your own safety?

Seriously speaking, with the increasing wave of terrorism, kidnapping, armed robbery and other violent crimes nobody is really safe in Nigeria. But having been involved in human rights struggle for almost four decades, I have no cause to worry about my safety. In any case, I have experienced worse days under successive military juntas in the country. I have always defended victims of human rights abuse in Nigeria and other African countries. In fact, I have had cause in the past, to defend the human rights of some highly placed people in the ruling party and in the opposition.

It may interest you to know that when the Babangida junta detained General Buhari and his deputy, the late General Tunde Idiagbon for three years, I joined the campaign for their release. I did that in principle notwithstanding that the Buhari/Idiagbon junta had detained me under Decree 2 of 1984. Much later, I also defended the right of General Buhari and other ANPP leaders to protests against the rigging of elections under the Olusegun Obasanjo administration. That was when I was briefed by ANPP and other 10 opposition political parties to challenge the constitutional validity of obtaining police permit as a precondition for holding rallies. I handled the case from the Federal High Court to the Court of Appeal pro bono. Both courts upheld the fundamental right of Nigerians to protest without police permit.

So, why should I worry for defending the rights of the Nigerian people including dissident groups and critics of the government?  Those who are trying to demand that Amnesty International be expelled from Nigeria may wish to know that President Buhari and many leaders of the APC were once declared prisoners of conscience by the same organisation. I am only  worried and pained that some of the rights being eroded now had been fought for and won by the Nigerian people.

Critics said that it was the word, “revolution” that scared the government…

Mr. Sowore would still have been arrested if he had staged a peaceful protest without the use of the word ‘revolution’. The Bring Back Our Girls Campaigners who were protesting peacefully at the Unity Fountain in Abuja to remind the federal government of its responsibility to free the Chibok and Dapchi girls in the captivity of terrorists did not use the word ‘revolution’. But the Jonathan administration felt irritated and decided to ban their daily protests. I was briefed to challenge the ban. We did so successfully. I am talking of the case of Hadiza Bala Usman and Others v Commissioner of Police. In spite of the judgment, the Buhari administration decided to ban the BBOG rallies. In fact, the Unity Fountain has been seized by the police to prevent Nigerians from protesting against constituted authority. There is a place designed for peaceful protests in front of the national assembly complex. I had participated in a rally there. But to ban any form of protests within the premises the members of the public have been denied access to the national assembly complex.

The Shiites were holding peaceful rallies in Abuja and some cities in the northern part of the country to press for compliance with the order of the federal high court for the release of their leader, Sheikh Elzakzaky and his wife. They did not call for revolution. But the army and the police attacked the Shiites and killed scores of them including children. Even though the Shiites defied the proscription of the Islamic Movement in Nigeria and continued their street protests. But since the federal government announced that it would allow ElZak Zaky and his wife to travel to India for medical treatment in line with the order which I had secured from the Honourable Justice Darius Khobo of the Kaduna State high court, the protests have stopped. This is why a government which rules by law must kowtow to the rule of law and respect the human rights of citizens. 

But the government is yet to appreciate that protest marches and demonstrations are part of the freedom of expression and assembly guaranteed by sections 39 and 40 of the Constitution and judicially recognised by the Court of Appeal in the case of IGP v ANPP. In fact, the law has been amended to impose a duty on the Police to provide security for protesters. Under the Olusegun Obasanjo administration, we had reached a stage whereby the federal government had to obtain court orders to stop protests and strikes. So, we cannot go back to the era of brutalising placard carrying protesters and charging them with terrorism or treasonable felony. Since I am using the law to defend my clients, I have no cause to worry over my safety.

Is this the first time that protesters will be charged for terrorism or treason?

This is not the first time that protesters have been charged with terrorism under the current political dispensation. In June 2014, a political rally was held by the APC at Ado Ekiti in preparation for the gubernatorial election of that year. The rally was led by Governor Kayode Fayemi in broad day light. But the police disbanded the rally and arrested the then Ekiti State Commissioner for local government, Mr. Niyi Afuye and 11 other APC leaders. They were taken to Abuja and charged with terrorism under the Jonathan administration. 

Yes, for taking part in a peaceful rally. Not unexpectedly, the APC took the PDP-led government to the cleaners for charging its members with the offence of terrorism. As the defence counsel in the case, I raised serious preliminary objections to the charge. Sensing that the charge could not be sustained, the Police hurriedly withdrew it. Can you imagine that the APC-led government has now turned round to accuse Mr. Sowore of committing the offence of terrorism for planning to lead the revolution now protests?

You actually defended Chima Ubani in the past. Was it the same?

The experience of Chima Ubani and his colleagues was pretty worse under a very corrupt and power drunk military junta. On May 23, 1986, four female undergraduates were brutally killed during a peaceful protest by the students of Ahmadu Bello University. They were killed by the mobile police invited to the campus to quell the student protest by the then Vice Chancellor, Professor Ango Abdulahi. There was a spontaneous student protests across the country against the killing. In a bid to divide Nigerian students along ethnic lines the Babangida junta decided to deal ruthlessly with the student leaders of the University of Nigeria, Usukka for expressing solidarity with ABU students in their moment of tragedy. The president of the student union, Chima Ubani and eight of his colleagues were arrested, detained and charged with unlawful assembly before a Magistrate Court at Nsukka which ordered that they be remanded in prison custody.

We rushed to the High Court sitting at Enugu to secure their release from prison custody. To our utter dismay, the charge was discontinued while a new charge of miscellaneous offence was filed at a special military tribunal. The penalty for the offence was life imprisonment. The tribunal headed by Justice John Egbue was hurriedly constituted to sit in Enugu. While we were at the Tribunal, the NANS which was then a force to reckon with, threatened to make the country ungovernable if the student leaders were tried. On my own part as defence counsel, I raised serious fundamental preliminary objections against the charge.

Before then, a similar tribunal had tried, convicted and sentenced 11 leaders of the electricity workers union to life imprisonment for going on strike. But for reasons best known to the junta, the prosecutor applied orally to withdraw the charge shortly after the arraignment of the defendants. As we had no objection to the withdrawal the charge was struck out. The defendants were delighted that they were discharged by the tribunal.

We had thought that the legal battle was over. But as soon as the student leaders returned to the campus, they were served with expulsion letters. Once again, we approached the High Court at Enugu for reprieve for the students. Since the students were in detention when they were purportedly expelled, it was indisputable that their fundamental right to hearing had been denied. So the expulsion could not be justified. On that basis the court quashed and set aside the expulsion letters. Even though they returned to the campus they were also made to appear again before the Mustapha Akanbi Judicial Commission of Enquiry which was set up to probe the nationwide student protests. We represented the students at the Commission. The Commission did not indict the student leaders. But the government was not happy that the Commission did not recommend the dismissal of radical students and lecturers who were teaching “what they were not paid to teach.” Unfortunately, we lost Chima Ubani in a road accident while returning to Abuja after a rally in Maiduguri.

Let us know other similar cases you defended…

I defended many other cases on the rights of Nigerians to protest for or against the government in many states. Personally, I was charged with unlawful assembly for marching against official policies that were considered inimical to the interests of Nigerian people. In May 1992, Chief Fawehinmi, Dr. Beko Ransome-Kuti, Baba Omojola and I were arrested and detained at Kuje prison under Decree No 2 of 1984. Together with Olusegun  Mayegun who was then the NANS President, we were charged with treasonable felony before the Gwagwalada Chief Magistrate Court for printing and pasting “Babangida Must Go” posters in many parts of the country. The late Chief Fawehinmi and I defended ourselves and our comrades. We challenged the moral and legal competence of coup plotters to charge us with treasonable felony. Apparently embarrassed by our submissions, the junta abandoned the charge and it was struck out by the Court.

In July 1993, Chief Gani Fawehinmi, Dr. Beko Ransome-Kuti and I were once again arrested and taken to Abuja.  The three of us were held vicariously liable by the junta for the popular protests which greeted the annulment of the June 12, 1993 presidential election won by the late M.K.O. Abiola. We were charged with unlawful assembly before a Magistrate Court at Abuja. The presiding Magistrate refused our application for bail and ordered our remand in Kuje prison custody. The high court admitted us to bail but we could not regain our liberty as we were also held under Decree No 2 of 1984. Notwithstanding our detention, the Campaign for Democracy, led by Chima Ubani and others in our absence took the struggle to a greater height. Even though the protests continued while we were incarcerated, we were left in custody until General Babangida allegedly stepped aside. We were however released by the so called Interim National Government.

But since the struggle of the Nigerian people eventually culminated in the restoration of civil rule in May 1999, the obnoxious decrees which abrogated the fundamental rights of citizens were repealed. Apart from the fundamental rights guaranteed by the Constitution, a number of laws and international human rights instruments ratified by Nigeria have enhanced the human rights regime in Nigeria. Therefore, any attempt by any government to abrogate or infringe on the guaranteed fundamental rights of the Nigerian people ought to be seriously challenged.

Are the laws on treason or terrorism ripe for readjustment, if I may use that word?

No doubt, there are two issues involved here. One is the abuse of the Terrorism Prevention Act, 2011 as amended by the federal government. The other is the unconstitutionality of some of the provisions of the Act. While the law stipulates that an application to proscribe a terrorist body shall be taken in chambers it does not say that the application shall be heard ex parte behind the members of the organisation sought to be proscribed. The application which is to be taken in chambers for security reasons cannot be heard without affording the organisation an opportunity to justify and convince the court why it should not be proscribed. It is specifically provided for in the Constitution that the Court may conduct proceedings in camera but when that is done for security reasons, the parties and their counsel must be present at all times. The point that I am labouring to make is that the law has not provided for proscription of organisations via ex parte motions. So the abuse of the law has to stop.

However, there are provisions of the Act that are totally inconsistent with the provisions of the Constitution and they ought to be amended without any further delay because all extant laws have to conform to the Constitution. For instance, some of us in the human rights community had kicked against the provision of the law which grants a judge the power to detain a terrorism suspect for a renewable period of 90 days without trial. Instead of amending the law, the national assembly decided to provide for a renewable detention period of 14 days in Section 293 of the Administration of Criminal Justice Act, 2015. If a suspect is in custody, the application to have detained should be served on him or her. It should not be made ex parte since there is no difficulty in serving the processes on a detained person. It is when the suspect cannot be found that an application ex parte may be justified.

In case on ground now, what are the international best practices for handling such?

In line with international best practices, the Constitution and the African Charter on Human and Peoples Rights have guaranteed the fundamental rights of citizens including criminal suspects to life, personal liberty, fair hearing and freedom from torture. In addition, the Administration of Criminal Justice Act, 2015 has humanised the treatment of criminal suspects while the Anti Torture Act, 2017 has abolished any form of torture of criminal suspects or other citizens.

But in violation of the provisions of the Anti Torture Act and other human rights instruments, the police and other security forces have continued to engage in torture and extrajudicial killing of suspects and other members of the public. Owing to official impunity by security agencies, the illegal detention of suspects has become the order of the day. In the last couple of months, I have almost shouted myself hoarse over the unlawful detention of about 150 soldiers by the Nigerian Navy without trial. I was compelled to request the National Human Rights Commission to intervene. Upon the receipt of our petition, the Authorities of the Nigerian Navy were asked to justify the detention but they have ignored the petition. Regrettably, the Commission has not exercised its powers by calling the Navy to order.

Unlike Mr. Sowore who has been ordered to be detained for 45 days, some of the people in the custody of the Navy have been detained incommunicado in underground cells in military barracks for over two years. You may be surprised that court orders for the release of a number of the detainees have been treated with disdain by the Navy.

I can say without any fear of contradiction that the extant human rights laws have imposed a duty on the government to ensure that the fundamental rights of all persons in Nigeria are respected. While the government has failed to effectively monitor the abuse of human rights, the Nigerian Bar association is not doing enough to defend the human rights of the Nigerian people and even its own members. For instance, based on our request, the Chief Justice of Nigeria has directed all Chief Judges to designate Magistrates to conduct monthly visitation of all police stations and other detention facilities in the country. During such inspections, the Magistrates are empowered to release suspects, grant them bail or order that they be charged before appropriate courts. If the monthly inspections by Magistrates are properly monitored by the 125 branches of the Nigerian Bar Association in the country, the indiscriminate arrests and prolonged detention of suspects and other people by the police and other security agencies will stop.