One highlight on how Falana plans to defend Sowore

I had read it reported in the media. But I finally had the opportunity to listen to what Falana actually said about how he plans to defend Sowore. Falana said: “I do hope they will not charge him; I hope the government will not be stupid enough to charge him with treason. You know why? You know why? He has briefed me. In fairness to the DSS, when he told them yesterday that he would not make a statement without speaking to his lawyer, they asked him who was his lawyer. He said Femi Falana. In fairness to DSS, they gave him a phone to call me. Of course, I knew they were monitoring the phone. But I said to him: I hope they won’t charge you. But if they do, some of the people in government will be our witnesses. You know why? You know why? One of them; I won’t mention his name, in 2011, one of them asked Nigerians to learn from the Egyptian revolution and be ready for a revolution.”

Everybody in the room clapped for Falana when he said that. Of course, this became sensational headline everywhere – “Falana Plans to Make Buhari his First Witness”. Yes, Falana was referring to the statement of Candidate Buhari during the campaign for 2011 elections.

Now, let’s analyze the above defense plans to try to understand the strategy behind it.

First, the statement Falana attributed to Buhari in 2011 did not call for a revolution. It only asked Nigerians (no specific person) to “study” Egyptian revolution and “prepare” for a revolution. He did not state what exactly they needed to do to “prepare” for revolution. Or whether they are to prepare to cause revolution or to prepare to witness it. Example, it did not tell them to start a protest or riot. Indeed, he could have meant that they should start praying against the anticipated revolution. Also, it did not give them a date when the revolution was to start. So, without telling anybody exactly what to do or the date to start doing that, the statement attributed to Buhari is not the same thing as what Sowore did. Comparing the two is really a big mistake.

Further, when a lawyer calls a witness, he must  have a clear and specific objective for calling that witness – either to establish a defense or an alibi – leading to exculpation or to discredit a witness called by the other party. Assuming Buhari goes to court and admits that yes, indeed, he made that statement in 2011, how does that help Sowore to explain his meetings with IPOB leader and plans to use the Shiites to bring the government down? How does that help explain Sowore’s call for protest on 5th August 2019 under the slogan “Revolution Now”?

Okay, let us say that Buhari also planned a revolution in 2011 and did exactly everything Sowore did now, how does that help the defence in this case? In a criminal trial, it is not a defense that somebody else who committed the same offense was not prosecuted. It is like a person standing trial for rape telling the court that the victim was also raped 8 years ago and the previous rapist was not prosecuted. The fact that someone else committed the same offense and was not prosecuted will never be an excuse for you to commit that same offense. Indeed, to pursue that line of defense amounts to a confession.

Having said all that, it is clear that Falana will not be allowed to call Buhari as a witness because the law requires a person to state what a witness is coming to testify before he can be called especially when the witness is being subpoenaed against his will. And for the reasons explained above, the court will not agree that the testimony of Buhari will serve any defense purpose.

Also, Femi Falana totally forgot that Presidential immunities will not allow a court to compel the President or even a Governor or Deputy Governor. Anybody that cannot be arrested cannot be compelled because the only way for a court to compel a person is by ordering his arrest. So, how does Falana intend to force Buhari to testify while still in office as President of Nigeria? Or maybe, he wants to delay the trial of Sowore till Buhari leaves office, while Sowore remains in detention.

Finally, Falana will not be able to call witnesses until the prosecution has closed its case and defense opens its own case. So, Falana must wait for up to 2 years before his first move to call Buhari or anyone else as witness.

Even a fresh lawyer just stepping out of law school today knows that Femi Falana is selling a dummy to ignorant and excitable audience. He can’t be serious at all. But why such bogus claims? It must be a general belief that the case will eventually blow over and Sowore will be warned and released. But this practice of selling dummies to the people must stop.