Dasuki And The Impotence of law The Nation Newspaper Editorial

​DETAINED since December 1, 2015 over allegations of having misapplied or misappropriated some $2bn arms fund, but granted bail three times by three different courts, former National Security Adviser (NSA) Col. Sambo Dasuki (retd) has nonetheless remained incarcerated. A fourth court presided over by Justice Baba Yusuf in Abuja last Tuesday reaffirmed the bail. Curiously, the prosecuting counsel made only feeble attempts to oppose the bail, arguing that that judicial exercise, if indulged, was likely to end up a nullity. It is one of the intriguing and enduring ironies of Nigerian life and criminal justice system that the former NSA is detained by the Department of State Service (DSS) but rightly and rightfully prosecuted by the Economic and Financial Crimes Commission (EFCC).

Mr Dasuki is unlikely to leave detention anytime soon. His continuing detention is neither at the instance of the prosecution nor of the law. His incarceration, as the courts clearly showed on Tuesday, transcended the law. He will remain in detention until those who inspired his detention have satisfied themselves that their objectives have been accomplished. In the early months of his detention, his case was widely, copiously and dramatically tried in the media. The drama that suffused the trial was so engaging and enchanting that there was hardly anyone left in Nigeria who did not think Mr Dasuki was already guilty and deserving of instant decapitation.

Indeed, it was as hard as looking for a needle in a haystack to find a few lawyers willing to put their reputation or learning on the line to warn of or oppose the increasing arbitrariness and executive exploitation of Nigeria’s leprous legal system. It was worse among the impatient and long-suffering civil populace disembowelled by a dangerously exploitative capitalist system that had pauperised everyone. The masses abhorred and abjured legal niceties. They wanted action, regardless of any legal hamstrings, to dispose of the corrupt flotsam and jetsam of the society. Few could understand the need to follow established procedures, and the federal government itself happily milked that combustive public sentiment to perpetrate a deep and unending subversion of the law. In the eyes of most Nigerians, it seemed, Mr Dasuki was guilty as charged, and instead of struggling for bail, he ought to consider himself lucky that he had not been lynched.

With that mindset, one rooted in brazen defiance of the law, but justified on the grounds of national security interest, it was a logical progression to enact more far-reaching abrogation of the rights of citizens as witnessed in the 2015 December Zaria Shi’a/Army clash and the detention of the Shiite leader, Ibraheem El-Zakzaky. While Mr Dasuki was charged in court but denied the benefits of court decisions, the state did not even bother to charge Sheikh El-Zakzaky in court. Notwithstanding, the Shiites took their case to court and finally won a reprieve, with Justice Gabriel Kolawole ordering the Shiite leader’s release and compensation. Up till now, Sheikh El-Zakzaky has neither been released nor compensated. Nor has the government said a word about the matter, not even to explain why it appeared desirable to flout the constitution, detain the Shiite leader without justification, and ignore court ruling.

Mr Dasuki, it is turning out, is merely the touchstone of the Muhammadu Buhari presidency’s misrepresentation of the country’s criminal justice system. During the last hearing in court on Tuesday, defence lawyers, prosecution counsel and judges were united in more ways than they actually spelt out to get the government to obey court rulings. They failed, and the failure was indeed blatant and pathetic. Hear the prosecuting lawyer, Rotimi Jacobs, doubtless troubled by the insistence of the government to flout the law. “Court must not act in vain. There is no point making an order in vain. Dasuki has been in custody of the DSS since 2015, and is still there till today.” In other words, Mr Jacobs was eager to distance his client, the EFCC, which charged the detainee in court, from the abhorrent practice of flouting court judgements. He is right. The EFCC does not flout judgements, even if its methods have sometimes been objectionable.

The only thing the government has said about the El-Zakzaky matter was the president’s revelatory outburst on the Shiite leader whom he described as a security threat purporting to preside over a state within a state. That outburst, made during President Buhari’s first and only media chat on December 29, 2015, bravely but unwisely indicated bias. No amount of public or verbal protest was powerful enough to dissuade the president from injecting his biases into the case. The European Union (EU), now alone as the world’s single and perhaps last torchbearer for human rights in the absence of the insular and nationalistic United States under President Donald Trump, has warned of the unfavourable image Nigeria could court if it continued to detain Sheikh El-Zakzaky. It is not clear whether President Buhari will listen. He seems to fear the US much more than he fears the EU or the Nigerian constitution.

It is suggested that the Kaduna State governor, Nasir el-Rufai, probably influenced the president’s perspective on both the Shi’a imbroglio and Sheikh El-Zakzaky’s unending detention. But in the face of very clear constitutional provisions, a constitution the president swore to uphold and protect, it is a mystery why he has chosen to defy the country’s basic norm and ignored the wider ramifications of such brazen and insouciant display. However, in the case of Mr Dasuki, where a symbolic attempt was made to charge the matter in court, every judgement defied is probably an indication of the president nursing a personal grudge, a grudge that is perhaps lasting and much deeper than the public appears aware of.

Apart from a few feeble protests here and there, and bedraggled Shiites who have been smothered by the government’s repressive machines but who nonetheless engage in spasmodic protests, the country has been largely silent on the government’s open defiance of the law and the constitution. Civil society organisations have whimpered and whispered. The courts, pummelled by the government over the considerable malfeasances of some of their judges, have groaned between a rock and a hard place, dishing out only a few courageous judgements that no one, not even the country’s chief law officer, Attorney General Abubakar Malami, has any idea how to execute. The citizenry have also perched on the horns of a dilemma, torn between their loathing for corruption, which some of the detainees have been accused of, and the sanctity of the constitution which they fear the rich and the corrupt have dedicated themselves to subverting or exploiting.

But whether on the Dasuki matter or the El-Zakzaky affair, both of which the Buhari presidency has mishandled very badly, there will of course be future repercussions. The implication for deliberately subverting the constitution and rendering the law impotent is always seismic and ineluctable. No leader gets away with the kind of open affront to the law as is being done today, certainly not in Nigeria which has a rich and sumptuous tradition of exacting a terrible price from the perpetrators of constitutional subterfuge. Logic and common sense dictate that the government should obey the constitution, regardless of personal costs and discomfort. To defy this seemingly simple but demanding obligation is not only to court future disaster, it is also often a precursor to the harsh judgement of history. Ask Ibrahim Babangida, the late Sani Abacha, Ernest Shonekan and even Olusegun Obasanjo. No one eats his cake and have it.

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