Activist-lawyer Femi Falana (SAN) has said he would have asked a court to commit the Director-General of the Department of State Services (DSS) to prison for contempt of court, if he had not released #RevolutionNow Convener Omoyele Sowore and former National Security Adviser (NSA), Col. Sambo Dasuki (retd.).
Falana stated this in a letter he sent on Sunday to the Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN), titled: โRe: Why Federal Government released Dasuki, Sowore, by Malamiโ
The popular lawyer informed the minister that before Soworeโs release last Tuesday, his team had filed Forms 48 and 49 for the DSS chief to be imprisoned for contempt of court.
He said the government was not permitted to refuse to comply with the order of bail under the pretext of defending the security of the nation.
According to him, even under military dictatorship, detaining authorities were not authorised to incarcerate any person for โsecurity reasonsโ in defiance to court orders.
Falana argued that under the current human rights regime, no authority has the power to detain any person beyond 48 hours in any part of Nigeria without a court order.
The lawyer said if a criminal suspect is going to be detained beyond 48 hours for security reasons or for any other reason whatsoever, the detaining authority is required to secure a remand order from a Magistratesโ Court pursuant to Section 293 of the Administration of Criminal Justice Act, 2015.
โIndeed, the Executive arm of government was not allowed by law to be the sole determinant of what constituted national security or state security.
โIn Commissioner of Police v Agbaje (1967) NMLR 65 Akinola Aguda J (as he then was) had cautioned that: โIf the resolution of such a conflict is left in the hands of any arm of the executive, as in this case where the power to put a citizen in custody for no proved offence is left at the discretion of the Inspector General of Police (IGP) by an Act of the legislative body, then the role of the courts to perform is to make sure that the IGP conforms strictly with the enabling legislation.โ
โOnce I am satisfied that he conformed with the provisions of the Act and that persons carrying out his orders likewise conformed with those provisions, I do not conceive that it is part of my duties to inquire at any rate in this suit, whether Decree Number 24 is valid or not.โ
Falana stressed that the government is entitled to appeal against the order of bail, if it is dissatisfied with it.
The lawyer averred that in the cases of Sowore and Dasuki, the Federal Government did not file an appeal against any of the orders in question; hence, no application was filed for stay of execution of the orders.
โAssuming that the Federal Government had filed an appeal against the orders of bail, the mere filing of the appeal could not have constituted an order of stay of execution of the orders for bail, citing that in Nigerian Army v Mowarin (1992) 2 NWLR (Pt 235) 345, the Court of Appeal has ruled that where the government files an appeal against the order of a High Court for the release of any person from custody, the order cannot be stayed, pending the determination of the appea because the liberty of a citizen cannot be put in abeyance,โ he said.
Falana recalled that Malami, in a statement on December 24, 2019, announced that he had directed the DSS to release Sowore and Dasuki from what he called illegal custody.
