By Ebun-Olu Adegboruwa, SAN
It took time coming but it’s been long awaited, given all the intrigues that attended his choice for the exalted throne. Sanusi Lamido Sanusi II, brave, courageous, maverick, populist, suave and intelligent, even as Emir of Kano.
He has had a very tumultuous journey all his life, from his school days to the bank, his public life and then as a revered monarch. His adversaries had concluded plans to thoroughly humiliate him out of the palace and to place him on house arrest till God knows when.
It was a great concern for some that such widely-travelled and experienced personality would be kept in solitary confinement. And then the social media came in and changed the game plan. From all platforms, on Facebook on Twitter, WhatApps, Instagram, Telegram, etc, online lawyers dug into their libraries and brought out several legal authorities speaking against banishment. And finally on March 13, 2020, the judiciary again stepped in to save the former Emir, as at other times.
The Kano State Government took the decision to dethrone Sanusi on March 10, 2020 and bundled him out of the palace vi et amis, on the grounds, amongst others, of insubordination, refusal to attend meetings and such other frivolous issues.
Whilst security agencies had a field day keeping watch over Sanusi in Awe, Nassarawa State, in his place of confinement, his lawyers approached the Federal High Court on March 12, 2020, by filing an action for his immediate release, under the Fundamental Rights (Enforcement Procedure) Rules, 2009.
Now, I have made the point on several occasions that the FREP Rules contain enough provisions to checkmate the rampant abuse of the fundamental rights of citizens, but lawyers and indeed the courts have not utilized these provisions sufficiently. Just how did Sanusi wriggle himself out of humiliation? He relied on the rule of law, the Constitution and due process of law.
In the case that he filed in court, he relied on sections 34, 35, 41 and 46 of the Constitution for the enforcement of his fundamental rights. Section 34 guarantees respect for the dignity of human person and freedom from torture or inhuman or degrading treatment; section 35 donates the right to personal liberty and prohibits the restriction of any person to solitary confinement or arbitrary arrest and detention, whereas section 41 grants to every citizen the freedom of movement throughout Nigeria, to reside in any part of Nigeria and not to be expelled from Nigeria or refused entry into Nigeria or any part of Nigeria.
These basic human rights are replicated in the African Charter on Human and People’s Rights, the Universal Declaration of Human Rights, the United Nations Charter and so many other international legislations and protocols. To banish Sanusi to Awe, away from his family and friends, lawyers, doctors and associates, to refuse him entry into Kano or any other part of Nigeria, was for the Kano State Government to set itself against the Constitution, which is the supreme law in Nigeria.
So Sanusi needed the Court as his last resort, to stave off the impending disaster of his purported banishment. Most people rose up in defence of the Constitution, in principle, not Sanusi per se.
It is the principle of equity, fairness, justice and respect for the rule of law and due process. It was the same planks upon which Nigerians rallied support for Chief MKO Abiola, for the validation of the June 12 election. So, it got to a point that Sanusi needed the court, to survive. And this should serve as a big lesson to us all, even Governor Abdullahi Ganduje himself.
Those who advocate respect for the rule of law for all categories of persons, and on all occasions, have no more gain in that struggle than those who are in power today and treating them with contempt. Thus, the Court is no more the last hope of the common man, but also the savior of the rich and powerful, because if we see the court only as useful to the masses, then there will be no compulsion for us to treat judges with respect and utmost decorum, to obey their orders, to pay their salaries and allowances as and when due, to renovate the courts, to improve upon infrastructure in the courts and to grant autonomy and independence to the judiciary.
If the court is for the rich and the poor, the masses and the bourgeoises, the young and the old, the men and the women, then most certainly the system of administration of justice in Nigeria will work smoothly and effectively and awaiting trial cases will reduce drastically.
So, how did Sanusi defeat banishment? The law worked for him, simple. Under and by virtue of section 46 (1) of the Constitution, any person who alleges that his fundamental rights as stated under Chapter IV of the Constitution has been, is being or is likely to be contravened, he may apply to court for redress.
This is the power against oppressors, against abuse of power, against arbitrariness and all forms of impunity, which many Nigerians are not utilizing, for several reasons ranging from ignorance to poverty. Section 46 (1) has three major components, of addressing past infringements of fundamental rights, present violations and future infringements. To ‘allege’ is simply to state without proof, whereby a citizen who is under any form of oppressive behavior can run to the court for protection and redress.
There are several fundamental rights applications filed in various courts that are still pending, some without hope of hearing. Why is this so? Why did Sanusi get his redress so quickly and so effectively?
Order 4 Rule 1 of the FREP Rules provides that once filed, an application for the enforcement of fundamental rights shall be fixed for hearing within seven days. Sanusi filed his application on March 12 and it was heard on March 13. Again, Order 4 Rule 4 © (i) permits the court ex-parte, to grant bail to or order the release of the applicant, if he is in unlawful custody. So why is the FREP Rules not working for the common people even when it was deliberately designed to serve them?
Under Appendix A of the FREP Rules, the filing fee for the application for the enforcement of fundamental rights shall be N500, a motion shall be N100, an affidavit shall be N50, the written address shall be N100 and any other process shall be N100. So in all, it takes less than N1000 to file an application in court for the enforcement of fundamental rights, yet citizens are languishing in police detention centres, they are rotting in EFCC, DSS, ICPC cells and in the correctional centres.
It used to be possible to file a fundamental rights application in times past, get it assigned immediately and follow it up to the judge for immediate hearing. Nowadays, you will need to generate a code in some distant bank, wait for temporary suit number, which you must treasure as some essential commodity and then go home and pray for a permanent suit number. I commend the dexterity, courage and bravery of Sanusi’s lawyers and I salute the boldness of the judge that granted the order for his release, for that is the way it should be. The judiciary should be the one to cut all forms of recklessness to size, not minding who is involved. But it should be a judiciary for all, not just the rich and powerful. Some have even wondered whether there could be some conspiracy theory in all of these events, from dethronement to banishment, to court action, order of court and eventual release by the police, without a single complaint or the usual bureaucracy.
I recall that the famous Lord Denning had explained in one of his books that he had cause to grant an order of injunction whilst he was in the bathroom by dictating it to his secretary to type and seal same. There was a complaint about an impending danger that required urgent judicial intervention in that case. The point being made is that once life or liberty is involved in any application for the enforcement of fundamental rights, such should be given maximum priority, to first save the life of the applicant or restore his liberty and then other things will follow. As it has worked for Sanusi so also it should work for all inmates awaiting trial, it should work for the market women and all students and artisans, looking up to the courts for justice.
The other point in the Sanusi case is the effectiveness of the wheel of justice. In other cases, it is one thing to argue the application and have it granted by the judge, it is an entirely different ball game for the order to be enrolled, typed, corrected, signed and certified. In some cases, the danger to be averted would have long occurred before you even get the order at all, by which time it has become a worthless piece of paper. In such cases, the police will taunt you on the frivolity of your journey to court and your oppressor will mock you and tell you that you cannot fight against the mighty and powerful ones in the society. It is worse when it is a case against the government and its officials, as you’re told that nobody ever wins against the government, as a way of discouraging you to challenge their impunity.
How do we make the judiciary to work for all? The courts should embrace technology in the administration of justice. In the Federal High Court in Abuja, POS machines have been deployed to speed up the process of filing, taking away the hiccups, the corruption and extortion that was the lot of lawyers and litigants alike. There is no reason why the judiciary should not work with the banks to ease the burden of lawyers in this area, so that with your ATM, you can file and pay for all processes and have them assigned the same day. The other point is infrastructure in the courts. For days now, many courts in Lagos have not been able to conduct any meaningful business for lack of power supply, in year 2020! In some courts, the judges buy stationery, they buy ink for their printers and some even have mobile generators, mobile fans and rechargeable lanterns, which they utilize to conduct judicial proceedings. It is that bad.
This is a challenge for Sanusi himself, to raise his voice on behalf of the apparently stranded judicial sector, for better funding, for total independence and for better welfare for judges and judicial officers. If and when this is achieved, then cases of arbitrary dethronement and illegal banishment will all become things of the past. So, in the same way that the law has worked for Sanusi, let us get it working for all.