‘Executive arm is arrogating itself the judicial power to determine what amounts to national security threat’

The protracted protest for the release of the leader of the Islamic Movement of Nigeria (IMN), Ibraheem El-Zakzaky, ended some weeks ago when a court in Kaduna ordered the state to allow him travel to India for medical treatment. Before the decision, the executive arm of government had been accused of holding him against previous decisions of court that granted him bail on the grounds that he is a threat to national security. Lagos-based constitutional lawyer, Mr. George Eke, in this interview with Assistant Editor, Law & Foreign Affairs, JOSEPH ONYEKWERE said only the courts could determine what constitutes national security as in the case of Asari Dokubo, which the Federal Government usually cites as the reason for keeping detainees. He also spoke on other interesting legal issues.

George Eke is a senior constitutional lawyer and a public policy analyst. He has several years of practice experience. He is the principal partner of George Eke and Company, a multi-practice law firm located at Ikoyi, Lagos. Eke, a one-time governorship aspirant in Imo State, is a member of the Nigerian Bar Association (NBA) and the International Bar Association (IBA). He is on the board of a number of companies.

Under what circumstances can the National Assembly take over the activities of a state Assembly?
The National Assembly can under section 11 (4) of the 1999 constitution as amended take over the duties of the state Assembly and pass laws on behalf of that State Assembly. But section 11(5) of the same constitution stipulates the conditions precedent for such take-over. That is to say that the State Assembly cannot hold meetings or perform their normal functions for whatever reason.

So, is it not in order for the National Assembly to threaten to take over the Assembly when there were conflicts among its members?
I don’t think the National Assembly should go the route of threats but should directly invoke the relevant section of the constitution and take over the functions on the condition that the State house is unable to perform its functions, but not because there is conflict among its members. In other words, unless the conflict has resulted in the stoppage of activities of that house, National Assembly cannot lawfully intervene.

With regard to your position on this, was it legal for the National Assembly to have threatened to take over the Edo State House of Assembly?
The National Assembly does not have any rights under our laws to issue an ultimatum to the Edo State governor to re-issue a proclamation for a fresh inauguration of the Edo State House of Assembly. The reasons are as follows: the governor has issued a proclamation for the inauguration of the House of assembly and the House has so been inaugurated. The Edo house has been conducting the legislative functions as required by the constitution, including screening and confirming commissioner-nominees. I know that the issue there is that some members-elect are complaining about the inauguration.  My advice to them is that they should first get sworn in as members so as to have a solid privileged and legal ground to challenge the structure and composition of the house. But the National Assembly in our federal structure cannot issue orders to the state governor. Secondly, the matter requires a judicial intervention. The National Assembly therefore acted ultra vires their powers.

Don’t you think that the courts need to also make a profound pronouncement about the legality or otherwise of a governor inaugurating a House of Assembly twice, which is what the National Assembly is asking the governor to do?
It is actually the court that has the powers to inquire into the legality, propriety or otherwise of the proclamation and the consequent inauguration of the Edo House of Assembly. The court can after due consideration of the issues of time of inauguration and what constitutes valid quorum for such inauguration confirm such exercise as being lawful or unconstitutional with the consequential orders. The legislature cannot so do. My advice then on national TV was that the Edo State governor should ignore the directive from the National Assembly to issue a second proclamation, but should proceed to court to stop the excesses of the National Assembly, who were undoubtedly acting at the behest of the National Chairman of All Progressives Congress (APC), who himself is engaged in a bitter power struggle with the governor of Edo State. Luckily, they have approached the court and the court has restrained the National Assembly from carrying out their unlawful threat.

The argument about the supremacy of national security over the rule of law is rearing its head again, following the order for the release of El-Zakzaky to embark on a foreign medical trip and the threat to appeal the decision by the Kaduna State government. What do you think about it?
The argument of the Federal Government that they continued detention of El-Zakzaky based on National security consideration does not make any legal sense. Court orders must be obeyed. The government is not in the position to pick and choose what orders to obey. It cannot also hide under the cover of national security to flout court orders. It is rule of law that begets national security. In other words, rule of law is superior to national security. With regard to the leader of the Islamic Movement of Nigeria (IMN) sect, it is the court that would have to declare that he is a threat to the stability of the nation based on the evidence adduced by the prosecution. Other than that, the Federal Government or Kaduna State cannot be sitting on appeal over the decision of the court that granted him leave to travel for medical treatment by attaching conditions to that ruling.

How do you distinguish between the case of the leader of IMN and the decision in Asari Dokubo, which the former attorney general made reference to in defending the position of the FG that national security overrides rule of law? 
In the case of Asari Dokubo, it is the court that declared that national security was threatened after reviewing the evidence before it and considering the circumstances of the case. This is in line with section 45 of the constitution that places a bar to the absolute enjoyment of the fundamental rights provisions of the same constitution. That is to say that the said national security declaration in Asari’s case was still within the ambit of the rule of law. But in the cases of El-Zakzaky and of course Sambo Dasuki, the executive arm of government is arrogating itself the judicial power to determine what amounts to threat to national security by refusing to obey the order of court to release them, a refusal that is in itself a contempt of court.

Why did the court say that Rochas Okorocha must be returned elected even after the returning officer had insisted he declared him winner under duress?
On the case of former governor Rochas Okorocha as it relates to the declaration of result under duress, my considered opinion on the judgment of Justice Okon Abang is that it was a judgment delivered per incuriam. With profound respect, I think the court did not properly interrogate and determine the issue of duress involved in the matter. Anything done under duress is ineffectual in law. The ingredients to establish duress may be threat, inducement or promise. Duress may not have been envisaged and expressly provided for in the Electoral Act (as sought for by the judge) but it is however part of the general legal principles that form the adjudicatory process.

The court held that INEC through its agent, having made declaration that Rochas has won the Senate seat of Imo West has become functus officio. The legal question to ask is: Could the returning officer have made a valid declaration as contemplated by section 138 of the Electoral Act? My reply is a no. Rather what he made under duress was a mere announcement. For a valid declaration to be made, two ingredients of voluntariness and ownership of the information so released must be present. Were those the facts in the case, especially when an aide of the then governor came on a national television programme shortly after the election and admitted (apparently to impress his principal) that he was the person who warned the returning officer that he was not going to leave that venue unless he declared the result given to him to announce? Again, I am of the view that the court prematurely kick-started section 138 of the Electoral Act against INEC.

The legal position with respect is that at the material time that returning officer was making the announcement, having been held hostage or under duress, he was no longer the agent of his principal (INEC) but rather the agent of the captor candidate. INEC cannot therefore be held vicariously liable for such a ‘declaration’. But the law is that a court order whether good or bad must be obeyed except a stay of execution is obtained. That’s why INEC had to release the Certificate of Return to Rochas. I think the judgment has been appealed. The dangerous implication of that decision if allowed to stand is that a candidate does not need to canvas for votes any more. All he requires is to capture the returning officer and force him to declare him the winner of the election.

Can you elucidate on Nigerian anti-smuggling laws with reference to the activities of the customs on our highways? 
Of late people have asked questions with regard to the powers of the customs officers to impound their personal items as smuggled goods. Travellers along the Lagos – Benin axis face a lot of checks and harassment from custom officers in this respect. The general question from the public is why would the customs be checking cars within inland roads when such cars have passed through their ports and border posts undetected or through compromised customs officials. The legal principle is that an offender cannot be allowed to enjoy the proceeds of his crime. Secondly, time does not run against the state in criminal matters. That is the reason the customs can and do rightfully break open warehouses where smuggled goods are stored and impound/seize such goods. In the case of cars, the customs can seize such cars at those check points especially when the cars are still in the possession of the smugglers and have not been registered.

But when an innocent purchaser for value has bought such a car, the customs can no longer impound such a vehicle. The law protects an innocent purchaser for value. Most of the vehicles so smuggled are sold in market overt with papers that show or purport that they were genuinely cleared and appropriate customs duties paid. Ironically these vehicle customs papers are secured with the assistance or collaboration of customs officials. Although the purchase of smuggled goods is an offence, an innocent purchaser for value especially when the purchaser bought such items in a market overt where such purchase transactions are normally done has not commit any offence. Neither can the customs lawfully issue any debit note in respect of a registered car to a user of such vehicle who obviously was not the importer of the vehicle.

The legal reasoning behind this view is that a vehicle that has been cleared and released by the customs to the importer is believed to have satisfied the necessary importation requirements. When such a vehicle is registered for use, the documents that informed such registration are accorded what is legally referred to as Presumption of Regularity.  The customs can no longer turn to the eventual buyer/user of the vehicle with a debit note, that is to pay any balance or difference on the customs duty either not fully paid or compromised with the importer, thereby making the subsequent innocent purchaser a victim of customs officials’ corruption or negligence.

The relevance of this position is that if a line is not drawn in protection of the innocent citizen, the customs may seize a vehicle you may have used for years because the importer failed to pay the appropriate customs duty at importation. Or the customs may declare and impound the rice in your wife’s kitchen as a smuggled item.