Friday Lines (42) With
Dr Abubakar Alkali
The 1999 constitution (as altered) is very clear, explicit and unambiguous that each of the 3 arms of government: the executive, the legislature and the judiciary should adhere to their separate constitutional roles and no one arm should interfere with the functions of the other arm while working towards the same objective to preserve the rule of law and protect the public interest.
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These relevant sections state that:
EXECUTIVE: Section 5. (1) Subject to the provisions of this Constitution, the executive powers of the Federation:
b) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make law
JUDICIARY: Section 6. (1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.
To this extent, President Buhari lacks the powers to release Nnamdi Kanu because the 1999 constitution says the President has no judicial powers and judicial powers are vested in the courts.
The combined effect of sections 5 and 6 of the 1999 constitution also asserts that the executive should allow the judiciary to do its job.
By sticking to the constitutional provision of separation of powers, President Tinubu has been able to maintain a very stable relationship between the 3 arms: executive, legislature and the judiciary largely because he doesn’t interfere with the functions of the other arms (especially the judiciary).
President Tinubu deeply respects the principle of separation of powers and this position helped him and his government in relations with the other arms of government to implement government policies and programmes.
Releasing Nnamdi Kanu will rock the boat, abuse the constitutional doctrine of separation of powers and change the current harmonious working relationship between the executive and the judiciary. The Tinubu administration cannot afford a frosty relation between the 3 arms especially at this time of very serious insecurity engulping the entire nation.
PREROGATIVE OF MERCY
Albeit the 1999 constitution has restricted the powers of the President to interfere in legislative and judicial matters based on the doctrine of separation of powers as enshrined in sections 4,5 and 6, it has given the President a window for clemency to persons either undergoing trial or convicted of an offence. This is spelt out in section 175 which grants powers for clemency on the President in consultation with the national council of states.
S.175 states inter alia, that
(1) The President may –
(a) grant any person concerned with or convicted of any offence created by an Act of the National Assembly a pardon, either free or subject to lawful conditions;
(b) grant to any person a respite, either for an indefinite or for a specified period, of the execution of any punishment imposed on that person for such an offence;
(c) substitute a less severe form of punishment for any punishment imposed on that person for such an offence; or (d) remit the whole or any part of any punishment imposed on that person for such an offence or of any penalty or
forfeiture otherwise due to the State on account of such an offence.
(2) The powers of the President under subsection (1) of this section shall be exercised by him after consultation with the Council of State.
Despite this window given to the President to exercise the prerogative of mercy, it is clear that releasing Nnamdi Kanu could potentially jeopardise the public interest and promote further violence. A political solution cannot be applied where there is clear and real danger to the public interest.
PUBLIC/NATIONAL INTEREST
Using section 175 of the constitution to release Nnamdi Kanu could tantamount to abusing the constitution due to the overriding consideration of PUBLIC INTEREST and NATIONAL SECURITY. Nnamdi Kanu, a global fugitive has made it very clear in words and actions, on both print and electronic media notably through the secessionist so-called Radio Biafra which he operates from abroad, that he is out to destabilise Nigeria using every available means and is a clear threat to national security.
Mr Kanu did not just stop at threats but he went on to establish the so-called independent people’s of Biafra (IPOB) and it’s militant wing, the Easter Security Network (ESN) which is currently waging what they call ‘campaign to achieve Biafra’ by visiting an unprecedented level of violence in the South eastern part of Nigeria. Without the gallant efforts of our military and other security agencies, the situation in the South east is better imagined than witnessed.
IPOB and ESN secessionists have been alleged to be involved in the killing of innocent people including security agents. The secessionists have also displaced hundreds of thousands of people and are on the march to creating a very serious humanitarian crisis in the South-East geopolitical zone.
In the light of all these realities, Mr President shouldn’t succumb to pressure to release Nnamdi Kanu but should allow the judiciary complete its job on Mr Kanu even if to serve as a deterrent to other wannabe secessionists who want to disturb the fragile peace in Nigeria.
Someone who is plotting to dismember Nigeria in his quest for ‘Biafra’ deserves no clemency from the same constitution he doesn’t recognise.
The President is also mandated by the constitution to implement and maintain the constitution. This is clearly stated in section 5(1)(b) that:
‘The executive powers shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws’
Clearly section 5(1)(b) has given credence on the need to safeguard the sanctity of the constitution and releasing Mr Kanu could distort this requirement.
Releasing Nnamdi Kanu will violate sections 2 and 3 of the constitution which clearly indicate that there shall be a nation called Nigeria comprising of 36 states and the federal capital territory: Nnamdi Kanu has repeatedly, persistently, publicly and unapologetically said he doesn’t believe in Nigeria and called our dear motherland a ZOO.
Nnamdi Kanu should be made to understand that there is the need to think before action not action before thinking.
Let the law run its full course on Nnamdi Kanu even if to serve as a deterrent to wannabe secessionists that the civil war ended on 15 January 1970.
NOLLE PROSEQUI
The prerogative granted to Mr President on the powers to release a suspect or convict by the 1999 constitution (as altered) may be exercised through the attorney – general of the federation. In this manner, the President may direct the attorney – general of the federation to withdraw or review the charges against the suspect.
As a matter of fact, the constitution has also given direct powers to the attorney- general of the federation to discontinue a case or withdraw charges against a suspect as contained in section 174.
Without prejudice to section 174. (1) of the 1999 constitution (as amended) on the concept of NOLLE PROSEQUI which empowers the attorney-general of the federation to withdraw charges on persons undergoing trial in a court of competent jurisdiction, it must be observed that this is allowed only if it doesn’t jeopardise the PUBLIC INTEREST.
Section 174 (1) (c) states that:
The Attorney-General of the Federation shall have power –
(c) to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
Section 174(3) is clear that in exercising these powers to discontinue a case, the attorney – general of the federation must consider the PUBLIC INTEREST. The relevant section 174 (3) is unambiguous that:
‘In exercising his powers under this section, the Attorney-General of the Federation shall have regard to the PUBLIC INTEREST, the interest of justice and the need to prevent abuse of the legal process.
In this context, it is clear that NOLLE PROSEQUI is not a blank cheque for the attorney- general of the federation to withdraw charges at will. Indeed, withdrawing charges and releasing Nnamdi Kanu could tantamount to the following:
1. Jeopardising the PUBLIC INTEREST as Mr Kanu could potentially continue from where he stopped in mobilising members of the outlawed independent people of Biafra (IPOB) to continue their violent campaign across the South East.
2. Abuse the LEGAL PROCESS as the judiciary has commenced the trial of the Mr Kanu since 2016 and ongoing. It will be counter-productive to discontinue Nnamdi Kanu’s trial at the middle of it. The legal process is on course to prosecute Nnamdi Kanu and take the case to its logical conclusion.
There is absolutely no reason to stop the trial.
Indeed, the amended charges against Nnamdi Kanu which border on Terrorism and Treason are too weighty to be the ignored.
SENDING THE WRONG SIGNALS
Releasing Nnamdi Kanu will send the wrong signals that no matter the weight of your alleged crimes, you can walk free once you have the right connections. Just ask the politicians, elders, elite and traditional rulers in your area to go and put pressure on Mr President to release you.
It will also make a mockery of the judiciary and disrespect the constitution. Many hardworking people have lost their businesses and other means of livelihood as a result of the so-called sit-at-home order in the South East routinely imposed on the entire South east by the outlawed IPOB/ESN.
