Written by S. Okey Mbonu
April 27, 2017
What happens in Nigeria can no longer escape international attention. Therefore, it behooves the practitioners of jurisprudence, especially Judges, to weigh their legal orders carefully, and to make sure their order meets legal sufficiency even in their own forums, before giving such orders.
Justice Binta Murtala Nyarko’s bail conditions pursuant to Nnamdi Kanu and his alleged accomplices in the IPOB matter smirks of unprecedented judicial recklessness. The bail conditions must be revisited immediately, to avert looming injustice as the world watches.
The section of the Nigerian constitution that deals with arrest and detention (lawful or unlawful), is the Fundamental Rights section, stated in Chapter IV of the 1999 Constitution (or what should be more appropriately titled Article IV). Numerous Nigerian case law provide authority to a Judge’s discretion in matters of Bail, subject to reasonableness.
Section 35 (1) of this Article states inter alia “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty…” Section 35 additionally states in sub-section (4), that “Any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law 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 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.”
The Nigerian Constitution’s Fundamental Rights article mirrors the 8th Amendment of the US Constitution (a part of the US Bill of Rights), which prohibits “Excessive Bail, or Fines, and Cruel and Unusual Punishment”. Ordinarily, this parallel with the US Constitution should be dicta, or persuasive authority, since Nigeria adopted US style democracy, with its fundamental underpinning by the US Constitution.
Justice Nyarko’s bail conditions, which require Kanu to provide three sureties; one of whom must be a serving Senator in Nigeria, a “Jewish religious leader” and highly respected person, who owns land anywhere in Abuja, Nigeria’s capital, and N100 million, for each surety is clearly excessive. The idea of a “Jewish Religious Leader” coming from Israel to stand as surety for someone in Nigeria is totally ludicrous.
These Bail conditions are excessive because based on the existing facts, Kanu & Co may not actually be culpable for the actual charges; which could be why the case has not been proven beyond reasonable doubt till date. Further, this case differs substantially from the many cases in the public domain, of Nigeria’s “Politically Exposed Persons (PEP’s)”, who may have stashed away billions, for use in bailing themselves in matters like these.
Additionally, requiring Kanu not to grant any interviews to the media/press, pending the outcome of his trial and to not be seen in a meeting/gathering of more than 10 persons, is actually a violation of Kanu’s constitutionally guaranteed rights pursuant to sections 37 (right to Privacy Et Al), and 38 (Freedom of thought/Expression Et Al of the same Chapter IV of the Nigerian Constitution (Fundamental Rights).
Therefore, these bail conditions are draconian; they smirk of a sub-agenda, or political machination, thereby potentially playing right into the grievances already enunciated by members of particular geopolitical regions of Nigeria.
Kanu and his alleged accomplices should be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
Justice Nyarko is treading on thin ground, by departing from the norms of jurisprudence, the Nigerian Constitution, and the dicta of persuasive international common and constitutional law in this matter, we hope she does the right thing.
S. Okey Mbonu
Executive Director, NAL Council (Nigerian-American Leadership Council), Washington, DC
The Author is Executive Director at Washington DC-based NAL Council (Nigerian-American Leadership Council). Mbonu trained at American University Washington DC and the University of the District of Columbia School of law, and holds a Doctor of Jurisprudence (JD) law degree. He previously served as Commissioner for Housing & Community Development in Prince George’s, Maryland, US. He frequently appears at the US Congress, as an expert on Nigeria and US-Nigeria matters; and on US Media, and has been acknowledged; “A Powerful Voice on US-Nigerian Affairs” by US Media Giant, MSNBC (February 14, 2015).
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