ISSUES | Rights Abuse: Analyzing Audu Maikori’s N10bn Lawsuit Against El-Rufai – By Ikemesit Effiong
By Ikemesit Effiong
Audu Maikori has gone on the offensive and for good reason.
If you’re a little lost as to who he is and why any of this matters, here’s a little refresher lesson for you.
Mr. Maikori, a Nigerian lawyer, activist and an entertainment industry leader was arrested February 17 by the Nigerian police in connection with a series of tweets about a fatal attack on his relatives in the troubled southern part of Kaduna that panned out to be false, based on a petition by the Kaduna state government. He was eventually released on bail and cleared of any complicity by the Police Force Headquarters.
He was, however, re-arrested and whisked to Kaduna, after Kaduna State Governor, Mallam Nasir El-Rufai publicly vowed to prosecute him during the Social Media Week 2017. On the second occasion, he was re- arrested without a warrant or being informed of reasons for his arrest. Mark Jacobs, the label executive’s attorney, later said his client was ‘transported’ to Kaduna. Mr. Maikori was detained for four days, before he was charged at a magistrate court in Kaduna. He was eventually released on bail on medical grounds after the court declared that it had no jurisdiction to try the matter as the charge was brought under the Cybercrime Act of 2015, which precludes the jurisdiction of a magistrate court.
Now, the entertainment mogul has sued Governor El-Rufai alleging a gross violation of his human rights. In a suit filed by his lawyers at the Federal High Court, Abuja, Maikori is asking for reliefs and compensatory damages to the tune of ₦10billion.
According to details of the suit, which is already being heard by Hon. Justice John Tsoho, Mr. Maikori says he was unduly harassed and intimidated by the Kaduna State government, Governor El-Rufai and the Nigeria Police Force. The originating summons filed by Mr. Maikori’s lawyers reads like a laundry list of all that is wrong and unfortunately notorious about our creaking criminal justice infrastructure. Some of the more consequential allegations in the court papers include:
- A declaration that it is wrong in law and a gross violation of [Mr Maikori]’s fundamental rights as provided in Section 35 of the Constitution for [Governor El-Rufai] to influence, initiate and order the arrest, detention and attempted prosecution of [Mr Maikori] for his tweets on 23 January, which did not in any way instigate or cause any violence in Kaduna state or in any part of Nigeria at all.
- A declaration that the arrest of the [Mr Maikori] in Lagos… subsequent detention in Abuja… for almost 48 hours on a warrant signed by a Kaduna magistrate but not registered in any court in Lagos and his second subsequent arrest and detention… in legally unjustifiable circumstances was a violation of the Mr Maikori’s right to liberty and security of person as enunciated in section 34 of the Constitution and the Article 9 of the International Covenant on Civil and Political Rights.
- A declaration that the re-arrest of [Mr Maikori]… after he was previously cleared of charges and released by the IGP Monitoring Unit, his being ferried in a convoy of 6 trucks from Abuja to Kaduna as well as his subsequent detention from Friday 10th March, 2017 till Monday 13th March, 2017 in State (Special) Anti-Robbery Squad detention facility, a facility reserved for hardened armed robbers and criminals at Ibrahim Taiwo Road, Kaduna without being informed for the reason for his arrest and detention is a brazen violation of his right to life, right to dignity of person, right to freedom of movement, right to fair hearing and right to personal liberty as enshrined in the Constitution, the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights.
- A declaration that the brazen and open threats issued by [Governor El-Rufai] and his use of state powers, apparatus and facility to incarcerate, intimidate, harass, terrify, terrorize, overawe and unnerve [Mr Maikori] has made [Mr Maikori] apprehensive and in a state of fear for his life and is a direct breach of Sections 33, 35 and 37 of the Constitution.
- A declaration that the numerous threats received by [Mr Maikori]’s family members of being attacked as a result of [Mr Maikori]’s civic engagement and tweets and the intimidation, harassment and unnerving suffered by [Mr Maikori]’s family is a breach of Section 37 of the Constitution for which [Mr Maikori] is entitled to redress.
- A declaration that the harassment, intimidation and wrongful detention of [Mr Maikori] in a small cell meant for hardened criminals with seventeen (17) people and in a facility that had no sanitary structure and his being treated as though he were a convicted criminal in the hands of the [Inspector-General of Police], [the Commissioner of Police] and [Governor El-Rufai] which psychologically traumatized him is a violation of his right to dignity, presumption of innocence and personal liberty as enshrined in the Constitution.
The summons paper also accuse the police of having no regard for the deteriorating health condition of Mr. Maikori in shuffling him within three Nigerian states. A persistent criticism of the prosecutorial services has been their storied record of shoddy legal preparation. Thus, on the execution of warrants, Section 27(3), (4) of the Criminal Procedure Act (applicable in Lagos, Mr. Maikori’s state of residence and all southern states) essentially provides that every person arrested on a warrant shall, subject to the provisions of sections 30 and 31 of the Act (which deals with the conditions under which one can be granted bail after an arrest) be brought before the court which issued the warrant as soon as is practicable after he is so arrested. An accused person being detained for four days with no information as to his legal status cannot be comfortably determined by any court to be “as soon as practicable,” notwithstanding our criminal justice system’s poor record when it comes to the dispensation of cases – more than 70% of those resident in Nigerian jails are awaiting trial, according to the Acting Executive Secretary of the National Human Rights Commission, Oti Ovrawah.
Critically, Section 31 of the CPA provides that “where a warrant of arrest is executed in the State outside the division or district of the court by which it was issued, the person arrested shall, unless security is taken under section 30 (which deals with the conditions under which one can be granted bail after an arrest), be taken before the court within the division or district in which the arrest was made. The court, let’s call it the home court shall if satisfied that the person arrested, appears to be the person intended to be arrested by the court which issued the warrant (which we’ll call the arresting court), direct his transfer to the arresting court.
The home court is allowed under Section 31 to determine if the accused person “is ready and willing to give bail to the satisfaction of the court within the division or district of which he was arrested; or if he can provide sureties, meet the bail sum and sign an undertaking to appear at his trial under section 30 of this Act, to take bail or security, as the case may be, and shall forward the recognizance (fancy legal speak for bail money), if such be entered into, to the arresting court. The Criminal Procedure Code, applicable in Kaduna and all northern states has similar provisions in Sections 64-66.
Applying this to our case, the proper action for the police would have been to take Mr. Maikori to a Lagos magistrate court pursuant to the Kaduna arrest warrant and allow the Lagos court authorize his arrest, take bail where possible and transfer same to Kaduna. Why this process exists is that Nigeria is a federation and each state is deemed to have superior and near unfettered legal jurisdictional rights within their borders. Kaduna cannot simply infringe into Lagos’ or anyone’s territory for that matter and administer its own form of justice. It is worth noting that there are certain acts that may be offences in one state but perfectly legal in another. To illustrate with an infamous example, while it is illegal to sleep with another person’s spouse in Zamfara or Katsina, Enugu or Osun could care in the least bit if you respect your marital vows.
On a wider plane, the right to freedom of expression as one of the basic human rights is enshrined in almost every international human rights documents and is one of the cardinal stones of every self professing democratic society. Whether a society can rightly claim to be democratic or not can be defined in large part by the independence of the press and the presence and encouragement of critical voices.
It is also widely acknowledged that the press and an engaged citizenry should be able to criticise the authorities when state officials and politicians make mistakes; news shall stimulate criticising attitude towards the political course of the authorities and news and entertaining programs shall be defined according to taste of audience. To permit the opposite of the above mentioned is to encourage authoritarianism. There is a reason the world is rightly concerned about leaders such as Turkey’s president Recep Tayyip Erdogan, which has jailed more than 40,000 people accused of plotting a failed coup, fired or suspended more than 140,000 additional people, shut down an estimated 1,500 civil groups and more than 150 news outlets while also arresting 120 journalists – even cancelling the passport of a vociferous and critical basketball star. Turkey’s aggressive behavior towards dealing with critical voices did not begin last week or even last year. There is a well-documented pattern of an incremental slide towards the curtailing of key human freedoms in that country.
Under the International Covenant on Civil and Political Rights, of which Nigeria is a signatory and Mr. Maikori bases a key portion of his case on, Article 19 states that everyone shall have the right to hold opinions without interference; everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice and the exercise of the rights carries with it special duties and responsibilities and may therefore be subject to certain restrictions as are provided by law and are necessary for respect of the rights or reputations of others and for the protection of national security or of public order or of public health or morals. It is taken for granted in advanced democracies that saying what you think should not result in a near death experience. Thus, in the opinion of the Australian Human Rights Commission, “citizens also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives or through their capacity to organize themselves. This participation is supported by ensuring freedom of expression, assembly and association.”
The European Court of Human Rights (EctHR) found that even if speech shocks or offends it can be protected speech. It went as far as to state that the defamation of a public official or a well-known celebrity is often protected speech because for a democracy, it is important to discuss public matters and to have alternative opinions. In 1986, the EctHR, in the case of Lingens v Austria, decided that “a politician should take more criticism than ordinary people.” While the decision was primarily aimed at balancing libel protections for public personalities with the right of journalists to do their work and enshrining freedom of press, it could easily be applied within the context of expressing informed personal opinions on issues of public concern, especially if such opinions express a dissatisfaction with the conduct of an elected official.
Governor El-Rufai’s grouse with Mr. Maikori is just the latest in what appears to be a campaign to muzzle critical voices who are dissatisfied with his efforts at addressing an escalation of a decades long tussle between indigenous settlers and itinerant roving Fulani herdsmen over land possession and usage rights in the southern part of his state that has arrested the national attention since the end of 2016. It is an irony not lost on many observers that Mr. El-Rufai has dispensed with legal niceties and institutional safeguards in pursuing his crazed agenda – they are simply inconveniences on his march to ensure that his viewpoint, his opinion, his will stands unchallenged and controverted.
That the Governor has vigorously followed on his chilling promise at Social Media Week Lagos – of all places – that “what [Maikori] posted may have led to killings and we are trying to link the dates of the posting to attacks that may have happened the next day on Fulanis and if we are able to establish that causation, as lawyers, we know what it means, “is a clear indication of the Governor acting as the executive, the prosecutor, judge and jury meaning that the likelihood of Maikori getting justice is slim if not nonexistent. In other climes, the Governor would have been asked to resign or recuse himself having made such a personal statement. Indeed his pronouncement has spooked social commentators who justifiably fear that Maikori’s travails reflect the fast diminishing ability of not only Kaduna, but Nigerian governments at every level – there is a similar case involving a journalist in Ogun and his Facebook activity – to accommodate and incorporate dissenting opinions on matters of critical national importance; one which should not be overlooked in a country where our elected leaders are quick to seize on token, shadow straw men and whip up ethnic and nationalist sentiments in the pursuit of parochial short-term goals while conveniently ignoring the yawning infrastructural and human development needs of the country.
Governor El-Rufai’s deliberate, targeted and personal campaign of incarceration, subordination, suppression is not what Nigeria signed up for when we ditched decades of political oppression, resource mismanagement and economic underperformance for democratic and participatory governance in 1999. All true democrats must resist it.
Ikemesit Effiong is a Nigerian Lawyer based in Lagos, Nigeria. He is a socio-political commentator who has been featured on various Nigerian radio and TV shows
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