Posted by News Express | 11 December 2015 | 3,603 times
“A dictator under democracy is an arch enemy of the rule of law, human rights and the Constitution; he always manipulates the Constitution and the law by exploiting their weakest and auxiliary provisions to further his dictatorial grips. He also dusts up or creates manipulatively retroactive criminal legislations and ouster clauses to despicably jail, shackle and manacle the citizenry and the mass media; thereby making mockery of the spirit and letters of the Constitution and the sanctity of the judiciary and the rule of law”( Democracy & Good Governance Department of Intersociety December 2015).
In Section 1 (3) of the Constitution of the Federal Republic of Nigeria 1999, it clearly states: “If any other law is inconsistent with the provisions of this Constitution, the Constitution shall prevail and that other law shall to the extent of the inconsistency be void”. In 1983, then Presidency of Alhaji Shehu Shagari and the Second Republic National Assembly (NA) signed, ratified and domesticated the African Charter on Human & Peoples Rights (ACHPR) (presently cited as the African Charter on Human & Peoples Rights Ratification & Enforcement Act of 2004). The municipal applicability and enforcement of the ACHPR was also judicially reviewed and made domestically justiciable by the Supreme Court of Nigeria in Abacha and Others v Fawehinmi (2001) AHRLR 172 (NgSC 2000). The Nigeria’s Apex Court ruled that “the ACHPR is (domestically) justiciable or enforceable, with its status higher than any ordinary legislation in Nigeria, but lower than the Constitution. The ACHPR’s legislative or NA’s domestication is in accordance with Section 12 of the 1999 Constitution.
“The Nigeria’s Criminal Justice Administration is chronically hit by two types of terminal investigative and prosecutorial viruses. The first terminal virus is whereby a citizen is arrested after being caught or suspected to be found committing the offense of common assault, which carries one year imprisonment, if judicially convicted; but he or she is detained and charged for armed robbery, which carries death penalty or life imprisonment, if judicially convicted. The second terminal virus is use of trumped up criminal charges or accusations against targeted citizens or political opponents; whereby State agents concoct or dust up criminal charges or accusations with grievous convictable punishment; and embark on trial-and-error evidence searching or affliction of painful body and mental torture on their captives; for the purpose of obtaining forceful indictable and convictable evidence. To achieve these, State agents resort to arraigning citizens before inferior courts or courts with ouster jurisdictions (Holden Charge) or obtaining unconstitutional long detention orders from inferior or superior courts”.
“It specifically happens when a citizen is arrested after being caught or suspected to be committing offense of sedition, for instance, which carries two to three years imprisonment, if judicially convicted; but put under investigation or prosecution for terrorism and terrorism financing, which carry death penalty and life imprisonment respectively, if judicially convicted. The End-product of the two terminal viruses is solely responsible for Nigeria’s criminal justice and custodial maladies, such as prison congestion (i.e. tens of thousands of awaiting trial inmates) and monumental failure of criminal investigation and trial in Nigeria, occasioned by watery or lack of credible evidence, competent investigation and diligent prosecution” (Emeka Umeagbalasi, Criminologist & Graduate of Security Studies: December 2015).
It is recalled that the leaderships of the Southeast based Coalition of Human Rights Organizations (SBCHROs) had on 2nd day of December 2015 issued a joint statement titled Before Citizen Nnamdi Kanu Goes The Way Of Yusuf Mohammed (1). The part one of the joint-statement was brought about by a long detention order by motion exparte, issued by the Federal High Court Six, sitting in Abuja for the detention of Citizen Nnamdi Kanu for a period of ninety days or more; for phantom investigative allegation of involvement in terrorism and terrorism financing. We feared and still fear that Citizen Nnamdi Kanu had undergone and still undergoes physical and mental torture in the hands of the DSS. In Nigeria, interrogation in the hands of security agencies literally means torture (physical and mental). Also when a public office holder in Nigeria uses the word negotiation; he or she literally means bribery or material influence.
We had also in the joint-statement promised Nigerians and members of the international community that “we shall demystify or un-bottle the Terrorism Prevention Act of 2011 amended in 2013 and expose its gross incoherence with the 1999 Constitution and the African Charter on Human & Peoples Rights ratified and domesticated by Nigeria in 1983. Specifically, the incoherence of the Act with the Chapter Four (Fundamental Human Rights) of the 1999 Constitution and relevant Articles of the African Charter on Human & Peoples Rights will be highlighted. The inconsistency and incoherence of the provisions of the Terrorism Prevent Act with the present unconstitutional conducts of the DSS; mechanically legitimized by Hon Justice Adeniyi Ademola of the High Court Six, Abuja, leading to labeling of Citizen Nnamdi Kanu and his IPOB as terrorist group and terrorism financier will also be exposed”.
Since then, calls from millions of our readers and followers across Nigeria and over eighty foreign countries have come and are still coming to us in torrents; demanding for the release of other editions of the publication as promised in the first part of the joint-statement. It is extremely important to inform all and sundry that for a crime or an offense (i.e. felony and misdemeanor) to be alleged to have been committed by a citizen in any part of the world particularly in Nigeria, there must be alleged guilty act (actus reus) and alleged guilty mind (mens rea). Also for an offense to be truly called offense or a crime truly called crime; there must be presence of seven elements of crime: harm, legality, actus reus, mens rea, causation, concurrence and punishment. For an act or omission to be called a crime or an offense, there must be concurrence and concordance of actus reus and mens rea. In other words, where there is criminal intention (mens rea) without criminal act (actus reus), an offense has not been committed; except in strict and statutory liability offenses such as traffic offenses; where only guilty act (actus rea) is judicially required to secure conviction or sanction.
Further, for an offense to be constitutionally called offence or crime in Nigeria; likewise in other modern democracies, it must be written and defined in written law (legality); have causation, cause harm and have clearly written and defined penalties or punishments. To ensure these and most importantly, where any ordinary legislation such as the Terrorism Prevention Act of 2011 (amended in 2013) or any of its provisions is found inconsistent or incoherent with the 1999 Constitution or any of its provisions including the Fundamental Human Rights Chapter; the former becomes instantly void and unconstitutional; in accordance with the express provision of Section 1 (3) of the Constitution. Also any order of the Court authorising detention of an accused citizen beyond periods recognised and provided in the 1999 Constitution; is an illegitimate, unlawful and unconstitutional judicial order.
We had in the course of our critical checks and comparison of the provisions of the Terrorism Prevention Act of 2011 as amended with the provisions of the 1999 for the purpose of ascertaining the former’s consistency with the later; observed existence of gross inconsistencies. For instance, Section 27 (1) of the Terrorism Prevention Act of 2011 as amended illegitimately and unconstitutionally provided as follows: the court may, pursuant to an exparte application, grant an order for the detention of a suspect under this Act for a period not exceeding 90 days subject to renewal for a similar period until the conclusion of the investigation and prosecution of the matter that led to the arrest and detention is dispensed with.
This provision is brazenly inconsistent with the 1999 Constitution. Section 35 (4) (a) (b) of the 1999 Constitution under right to personal liberty; commands as follows: “any person who is arrested or detained in accordance with sub section 1 (c) (reasonable suspicion of having committed a criminal offence carrying capital punishment) of this section shall be brought before a court within a reasonable time, and if he is not tried within a period of: (a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or (b) three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any other further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date”.
In the case of Citizen Nnamdi Kanu, he was held extra judicially for 27 days or from 14th October to 10th November 2015 and further held unconstitutionally from 10th November till date; a total of 56 days or nearly two months. In the two unlawful captivities, he had never been released on bail till date.
By the express provision of Section 1 (3) of the 1999 Constitution, Section 27 (1) of the Terrorism Prevention Act of 2011 as amended; is null and void and of no effect with respect to Citizen Kanu’s solitary, unconstitutional, spurious and phantom detention and investigation by DSS on phantom accusation of involvement in terrorism and terrorism financing. Also by Section 35 (4) (a) (b) of the 1999 Constitution (right to personal liberty); the same Section 27 (1) of Terrorism Prevention Act of 2011 as amended (detention of accused citizen for 90 days and above or perpetual pretrial detention), is null and void. By the Supreme Court of Nigeria’s landmark verdict in: Abacha and Others v Fawehinmi (2001) AHRLR 172 (NgSC 2000); on the supremacy of the African Charter on Human & Peoples Rights (ACHPR) over ordinary legislations in Nigeria, Section 27 (1) of Terrorism Prevention Act of 2011 as amended; is expressly ultra vires, illegal and illegitimate.
Again, by clear definition of “act of terrorism” in Section 1 of the constitutionally incoherent Terrorism Prevention Act of 2011 as amended; there is earth and mars distance between the Terrorism Act and the civil conducts or activities of Citizen Nnamdi Kanu and his IPOB/RBL. Also, the order made by Hon Justice Adeniyi Ademola of the Federal High Court Six, Abuja for long detention of Citizen Kanu beyond constitutional stipulations, which is subject to further renewal; amounts to rapacious attack and undermining of the 1999 Constitution particularly its Section 1 (1) (supremacy of the Constitution) as well as the principles of the rule of law and fair hearing.
•Being the second and final part of a statement issued Thursday in Onitsha by the Southeast Based Coalition Of Human Rights Organizations (SBCHROs). It was signed by Emeka Umeagbalasi for International Society for Civil Liberties & the Rule of Law (Intersociety); Comrade Aloysius Attah for Anambra State Branch of the Civil Liberties Organization (CLO); Comrade Peter Onyegiri for Center for Human Rights & Peace Advocacy (CHRPA); Comrade Samuel Njoku for Human Rights Club (a project of LRRDC (HRC); Justus Uche Ijeoma, Esq. for Forum for Justice, Equity & Defense of Human Rights (FJEDHR); Comrade Chike Umeh for Society Advocacy Watch Project (SPAW); Obianuju Joy Igboeli, Esq. for Anambra Human Rights Forum (AHRF); Comrade Alex Olisa for Southeast Good Governance Forum (SGGF); Jerry Chukwuokolo, PhD, for International Solidarity for Peace & Human Rights Initiative (ITERSOLIDARITY); Evelyn Chinwe Eze, Esq. for Street Law Africa (LawAfrica); and Tochukwu Ezeoke, for Igbo Ekunie Initiative. Photo shows Nnamdi Kanu.
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