TheCable

BY FESTUS OGUN

Yesterday, the Department of State Services claimed that it is ready to release human rights activist and prisoner of conscience, Omoyele Sowore but those coming forward are not qualified to collect him. According to Peter Afunaya, DSS spokesperson, “it is only appropriate that those who stood surety for Sowore present themselves and have him released to them”.

This fresh condition given by DSS, as against the order of court, is very laughable, jejune, unfortunate and contemptuous. Let me make it abundantly clear that the trend followed by DSS is completely alien to our jurisprudence. It is apparently unknown to law. There is no legal justification for DSS’ refusal to release Sowore after he has fully met the bail conditions.

It is rudely shocking that DSS is of the view that Sowore would not be released except his sureties are physically present so he can be handed over to them (sureties). As a matter of law, there is no obligation on the sureties to “receive” an adult who has fully met his bail conditions. I stand to be corrected on points of law.

I have always known that the duty of the DSS doesn’t extend to making or fabricating strange laws. The statutory powers of the DSS are clearly provided under the SSS (Establishment) Act and never was it provided therein that the DSS has powers to fabricate new conditions for the release of an accused after unequivocally meeting bail conditions. In that wise, requesting the sureties to come forward to pick an adult already freed by the court amounts to contempt and acting ulta vires. It is simply illegal, unconstitutional and an aberration in a democracy.

The power to make laws for the peace, order and good governance of Nigeria is donated to the legislature under Section 4 of the 1999 Constitution (as amended). The DSS doesn’t have the power to add other irrelant and mischievous requirements to a bail condition that is itself harsh and wicked.

It is trite in law that there can be no basis for the utter disrespect of court orders, no matter how slight it appears. In the case of NIGERIAN ARMY V. MOWARIN (1992) 4 NWLR (Pt. 235), it was held that “an order of Court must be obeyed even if such an order is perverse, until such a time that the order is set aside by a competent court … a flagrant flouting of an order of the court by the executive is an invitation to anarchy…”

The current theatrics of the DSS should give an average lover of Nigeria a cause to worry about the sad fate of our democracy, if we practice any in actuality. See, no matter the flowery of the DSS spokesperson’s language, the truth here is incontrovertible. With the constant insistence on releasing him to his sureties, which is itself illegal and arbitrary, it presupposes that the DSS is only notoriously acting as if it is above the law and putting the law into its hands. It also suggests that the agency gives no damn about orders of courts in the country. A perilous path, I call it.

For the umpteenth time, the DSS clearly doesn’t have such powers to make illegal regulations outside court orders. If they assume they do, they are only living in the figments of their imaginations.

Beyond law however, the hanky-panky of the DSS in this matter shows clearly they’ve lost all the valid arguments to defend their extreme lawlessness. I have never seen one who defends modern fascism in a supposed democracy and not end up betraying logic. This exemplifies the case of DSS at this point. Hard as you may try, you cannot defend tyranny and lawlessness and not appear a simpleton.

The same DSS that claimed no one came to receive Sowore last week is today claiming those who came are not qualified. Tell me, who can be better qualified if not his lawyers? Who is better qualified if not his close associates and party men? Under what section of any relevant law in Nigeria says one who has wholely met his bail conditions as ordered by the court must nonetheless be handed over to his sureties?

The excuse given this time is too weak to effect its sanctimonious purpose. It is illogical, legally unfounded, baseless, alien, irrational, wicked, unsound but not totally surprising. The DSS has no other genuine excuse for this midday tyranny, lawlessness and gross disrespect to the rule of law. They should tell all the stories, at this point, to the marines.

Whether they continue with their fascist tendencies or not, they should only be reminded that no form of oppression and attack on our democracy can defeat the Nigerian masses.

*Festus Ogun is a Lagos-based Lawyer-in-equity, Human Rights activist and Constitutional Law enthusiast. [email protected] 09066324982