DOES THE PRESIDENT HAVE THE POWER TO ORDER THE ARREST OF DASUKI?
The courts are not answerable to the president. However, the president is answerable to the courts.
There can be no questions about President Buhari’s military credentials. The president is a retired major-general of the Nigerian army, celebrated for his many successes in the field of battle. One of the first moves he made on his inauguration was to direct that the command-and-control centre for battling Boko Haram be moved nearer to the epicenter of the insurgency in Maiduguri. Although the insurgency has increased rather than abated since then, no right-thinking person can fault that judicious move.
However, in civil matters, especially those pertaining to democratic governance, the president has very little experience. It has not helped matters that, for the first five months of his administration, he governed as a “sole administrator;” without the counsel of a Cabinet. This accounts for a number of errors he has made since becoming president. These errors arose because the president brought in the psychology of a military dictator into his new role of a civilian president.
Learning curve
As president-elect, Buhari banned AIT from covering his official affairs because of certain things AIT allegedly published about him and his family during the election campaign. It took the intervention of the APC to reverse that order of the president-elect. The party recognised it was foolhardy for the incoming president to embark on a fight he cannot win against the press. Moreover, a democratic president does not kick-start his presidency by infringing on press freedom.
Section 22 of the Constitution states: “The press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in this Chapter and uphold the responsibility and accountability of the government to the people.”
On taking the oath of office, the president also made a number of questionable appointments. He appointed Amina Zakari as acting chairman of INEC, flouting INEC regulations to do this only in consultation with the National Assembly. Zakari’s appointment was also illegal because it was made without the statutorily required approval of the National Council of State. Moreover, there is no provision in the Constitution for an Acting INEC Chairman.
The president also appointed Ahmed Lawan Kuru as the managing director of Asset Management Company of Nigeria (AMCON) and named its executive directors following the expiration of the five-year tenure of the previous board. These appointments were illegal because they were made without Senate confirmation. Section 10 (1) of the AMCON Act 2010 stipulates that the board shall be appointed by the president “subject to the confirmation of the Senate.”
Contempt of court
On 17th November, 2015, a screaming headline of Vanguard said: “Buhari orders arrest of Ex-NSA, Sambo Dasuki.” In a statement credited to Femi Adesina, the president’s Media and Publicity Secretary, a number of fraudulent acts were alleged to have been committed by Dasuki and others. As a result, Adesina said President Buhari directed that they should be arrested and brought to book. Sure enough, the Department of State Services (DSS) sent officers to surround Dasuki’s residence.
The first question that came to mind on hearing about this development is this: Does the president of Nigeria have the power to order the arrest of Dasuki? Strictly speaking, the answer is “No.” It is the police that have the power of arrest. The courts also have that power, and this is done through the issuance of bench-warrants.
However, Section 215(3) of the 1999 Constitution says: “the President or such other Minister of the Government of the Federation as he may authorise in that behalf may give to the Inspector-General of Police such lawful instructions with respect to the maintenance and securing of public safety and public order as he may consider necessary, and the Inspector General of Police shall comply with those or cause them to be complied with.”
Nevertheless, the president’s order to arrest Dasuki is unlawful for the simple reason that it violates a subsisting court order that Dasuki should be freed and allowed to travel abroad to seek medical attention. The government disrespected the rule of law when Dasuki was prevented from traveling, in spite of the court order. For the president to now top this by ordering the arrest of Dasuki is to show absolute contempt of court and blatant disregard of the judiciary as an independent arm of government.
Checks and balances
The courts are not answerable to the president. However, the president is answerable to the courts. The courts can order the president to comply with the provisions of the Constitution or the law of the land and the president is legally compelled to obey. The president can only disobey a court order by appealing to the court; the Supreme Court being its highest organ. If the Supreme Court still tells the president to comply, then he must comply. Refusal would only provide grounds for his impeachment and removal from office.
The Nigerian system of government is borrowed from that of the United States. It is built on a system of separation of powers between the Executive, the Legislature and the Judiciary. None is allowed to overrule the powers of the other. There are a number of checks and balances designed to ensure that the president does not become imperious and dictatorial. There is no doubt that the president is the most powerful single individual in government. Nevertheless, the exercise of his powers is subject to constraints.
Recently, President Barack Obama of the United States observed in an interview with Bill Smmons of GQ that he did not understand how weak the American presidency is until he became president. President Buhari needs to know that the president of Nigeria does not have the power to vacate a court order. Neither can he give an order that overrules the courts. In Nigeria, not even the president is above the law.
Dasuki’s house arrest is unlawful. Even the police cannot hold an accused beyond 48 hours without charging him to court and leaving the rest to the judiciary. The president now has an Attorney-General, he should henceforth rely on his counsel so that government actions do not continue to contravene the fundamental rights of Nigerians.
Fighting corruption with impunity
Mr. President told a delegation of Foursquare Gospel Church that his administration is in no rush to prosecute thieving public officials. He says it takes time to gather credible and verifiable evidence against them to guarantee effective prosecution. These are his words: “Under military rule, people could be arrested and held on the basis of suspicion, but in a true democracy, anyone accused of an offence must be presumed innocent until pronounced guilty by a court of law.”
How does this apply in the case of Dasuki who is now under house arrest without a court order to that effect? The subsisting order of the court says Dasuki should be freed and allowed to travel abroad for medical treatment. The government violated that order by preventing Dasuki from traveling, placing him instead under house arrest. It now says there is another case Dasuki has to answer, which is the reason the president has now ordered him to be arrested. This is highly irregular and it makes a mockery of the system of justice in Nigeria.
The government’s conundrum here is that it cannot take Dasuki to court to answer whatever new charges it has because it has already shown contempt for the same court by disobeying an earlier court order. Before the government can charge Dasuki to court on new charges, it has first to obey the court order to allow Dasuki to travel abroad for medical treatment.
Contemnors must first show respect for subsisting orders of the court before they can seek indulgences of the same court whose orders they flouted. In short, President Buhari’s order that Dasuki be arrested shows contempt for the rule of law and is a blatant attempt to intimidate the judiciary. The government says it is against impunity by government officials. But then it goes ahead to display blatant impunity in the case of Dasuki.
In Nigeria, nobody should be above the law, not even the government. The duty of the government is to uphold the law; not to disregard it. If we were serious about the rule of law in Nigeria, the Director-General of the DSS would be cited for contempt of court for preventing Dasuki to travel abroad in spite of court directive that he be allowed to do so. It would not be Dasuki that would be arrested: it is the DG DSS.
Innocent until proven guilty
What we have today is the anomaly whereby some like Dasuki are accused of corruption and ordered to be arrested. Others like Amaechi are accused of corruption and rewarded with super-ministries. If Governor Wike of Rivers State could not order the arrest of Amaechi as a result of the report of a committee he set up which declared Amaechi guilty of corruption, the president of Nigeria should not order the arrest of Dasuki on the basis of a preliminary report by a committee he set up.
The best thing the president can do is to hand the matter over to law enforcement agencies for proper investigation and prosecution. In the interest of promoting free trial and justice, the president also needs to stop commenting on cases that will soon be sub judice. Otherwise, it would appear he is determined to bias them against the defendants even before the trial starts. Femi Adesina should not tell Nigerians about Dasuki’s guilt before Dasuki gets his day in court.
Government manipulation of the press in corruption cases has got to stop. If those accused of corruption are guilty, it is not the job of the president to try and convince Nigerians of their guilt before their cases are decided in court. The cases will not be judged by the public in the press. If the government is that confident of the veracity of its cases, it should take the accused to court and let the courts decide. That way, they would be able to answer the charges without bias.
The government’s violation of the rights of Dasuki is the violation of the rights of every Nigerian. We must forestall a situation where the fundamental rights of Nigerians are violated even for the very best of intentions and persuasions. Corruption should not be fought with human rights abuses and violation of the rule of law. It is better for the guilty to go free than for the innocent to be wrongfully convicted.
