August 7, 2019

The DSS, apparently trying to ensure that they followed the Nigerian law in their handling of Sowore case, filed an ex parte application for an order of court to approve detention of Sowore for 90 days. According to the DSS, they would need that time to carry out investigation on the alleged criminal activities of Sowore. It is disturbing to us that as long as 90 days would be needed to conduct any such investigation. It is also disturbing that the suspect (Sowore) should be in detention during the entire period. Anywhere else in the world, that would be considered an unjustified period of investigation during which a suspect would need to be in a pre-indictment detention. You need to know the deference between a pre-indictment detention and pre-trial detention.  Pre-indictment detention is called holding charge in the Nigerian parlance, while pre-trial detention is called awaiting trial. The DSS want a court order to detain Sowore for 90 days before they could file any charges against him. Even though Nigeria allows that kind of procedure, international practice abhors it. The government is expected to be ready with s charge just few hours after arrest, if no arrest warrant was obtained or immediately upon arrest if a warrant of arrest was obtained.  No pre-indictment detentions in developed countries in the present time. However, after charges have been filed, there will be pre-trial detention (bail) application, to determine whether there is a good reason why the person should not be released pending trial. Notice the remarkable difference between advanced counties and Nigeria. In advanced countries, liberty is the default state. So, it is the government that should show why a person accused should not be granted bail. But in Nigeria, loss of liberty is the default state. And, it is the accused person that should show why he should be granted bail. So, it means that once a charge is filed against you in Nigeria and you are arrested, you are as doomed as a tried and convicted person. (DPA is working to change this practice). The position is slightly different if it is a pre-indictment situation, such as Sowore faces right now. In pre-indictment situation, liberty is the default state even in Nigeria. So the government is the one to show why the suspect should be detained. Again, pre-indictment detention is detention pending investigation, which is rarely allowed these days in civilized counties, while pre-trial detention is detention pending trial, which is possible in developed counties in very extremely rare cases. Applications for pre-indictment detentions are usually done ex parte, which is one of the reasons it is considered objectionable. On Tuesday, the DSS filed ex parte application to detain Sowore for 90 days. The ex parte motion by the DSS bears the number FHC/ABJ/CS/915/19. It came before Justice Taiwo Taiwo of Federal High Court sitting in Abuja. Being an ex parte application, it could be immediately worked up to the judge for immediately disposition. In support of their application, DSS attached a video evidence. No one knows exactly what is in the video. The judge reserved his decision till Wednesday, 7th August to enable him view the video. So, there will be a ruling later today. There will be the following possibilities in the awaited decision: 1) The court may decline to make any order for detention of Sowore. If that happens, DSS will have to either release Sowore immediately or charge him immediately and then oppose his bail application. If they charge him immediately, it will still take up to 2 weeks before his bail application will be argued. 2) The court may grant the DSS application for 90 days detention. In that case, Sowore, upon receiving a copy of the order, will file a motion to vacate the order. All that will keep him in detention for at least 6 weeks before before he can regain his freedom. 3) The court may go halfway, which is to grant DSS some time for investigating while Sowore is in custody, the period will be much shorter than 90 days, say 30 days, but may be extended. We think this is the most likely option. One of these 3 options will be confirmed today.  But one mischief remains regardless of the option the court takes, which is that the DSS will have ways to continue to detain Sowore regardless of the decision of the court. We call it a mischief because that is something DPA will like to stop in Nigeria. If Sowore wants to get out sooner, his lawyers need to negotiate with DSS for a deal that will avoid charges being filed. But making a deal with DSS will require him to compromise for the time being. He may not like to eat a humble pie. In any case, Sowore may have the problem of lawyers who may want to use his case for their own crusade. Such lawyers will like to be making inflammatory remarks for publicity. For instance, Femi Falana was reported to have said yesterday that if Sowore was charged he would make Buhari his first witness. If you are not an experienced trial lawyer, you may be tempted to find solace in such statement. But in truth, even if Falana succeeds in making Buhari his first witness, he must have to wait until the prosecution has closed its case, which could be two years away, and he must admit then that the prosecution has made a prima facie case deserving a defense. (Of course, if at the end of prosecutions case, he feels that they did not make out a prima facie case against Sowore, he will not be calling any witnesses. Instead, he should be making a no-case submission. But the desire to compel Buhari to testify as a hostile witness may cause him to deviate from standard defense counsel procedure). Note that Falana in 3 years, Falana was not able to make Buhari his witness El Zakzakky case. Before we end this piece, let it be known that presently, DSS has suspects in their custody who have been there for up to two years without them being taken to any court and without any court order. Sowore being a high profile suspect has been treated differently. We need to demand that DSS take all suspects in its custody to court or otherwise obtain a court order for their detention. That should be among the proper aims for any revolution in Nigeria. DPA shall keep its members fully informed about the legal development in the Sowore's case.