By Chidi Anselm Odinkalu

By the time Muhammadu Buhari ran for a second presidential term in 2019, it seemed clear that the judicial process in many parts of the country had been actively co-opted in the intimidation of civic opponents of the government, both real and imagined. The case of Steven Kefas was a defining moment in that process.

Steven was a compelling activist and amplifier of the crisis of human security in Southern Kaduna under former governor, Nasir el-Rufai.

For this invented crime, el-Rufai had Steven charged before a Magistrate in Kaduna, who refused him bail even when the crime was clearly a misdemeanour. Steven renewed his application for bail before the Federal High Court in Kaduna where the presiding judge, Peter Mallong, incredulously ruled that his suit was “an abuse of court process” because the Magistrate had previously refused bail. Turning judicial precedent on its head, Peter Mallong held that the decision of the Magistrate was binding on the Federal High Court.

Gloria Ballason, who argued Steven’s case, was also my lawyer when el-Rufai sought to abduct me too in circumstances that would have been not dissimilar to what he did to Steven. On the eve of the presidential election in 2019, el-Rufai went public with claims of the massacre of scores of Fulanis in Kajuru, a community against which he appeared to have an implacable beef. The following morning, I publicly rebutted his claims. The security services were pointedly unable to support his claims.

After the 2019 elections, el-Rufai instructed my prosecution before the Magistrates Court in Kaduna on the fanciful charges of incitement and injurious falsehood. The case did not even have a charge number. The magistrate called up the case on two successive occasions and, when I did not show up, decided the time was ripe to issue a warrant for my abduction. Contrary to my entitlements under the Nigerian constitution, they did not even bother to bring the charges to my attention. It seemed as if the entire objective from the beginning was to set me up for abduction.

Informed off-record about the case by sympathetic law enforcement agents subsequently, Gloria Ballason first issued filings objecting to how the court had chosen to proceed. Thereafter, she instituted proceedings before Peter Mallong’s Federal High Court in Kaduna against el-Rufai and the police, arising out of these facts, alleging the breach of my constitutional rights.

One year after the case was instituted, in October 2020, Peter Mallong issued his decision. He claimed that the affidavit in support of my court processes, sworn to by a litigation clerk in the law firm of my lawyers, was incompetent because the deponent was someone other than me. It was as if he had never heard of the Fundamental Rights (Enforcement Procedure) Rules, which allowed for what the litigation clerk did. As a result, Peter Mallong said my case was incompetent and his court lacked jurisdiction over it. After holding that he lacked jurisdiction, however, Peter Mallong went on to “dismiss” my case.

The judgment was manifestly crooked on the face of the record. A judge can only dismiss a case that s/he has had the opportunity to consider but a judge cannot consider a case over which s/he lacks jurisdiction. So, a judge who rules that he or she lacks jurisdiction cannot thereafter decide to dismiss the same case. That is exactly what Peter Mallong did. Having accomplished such crookedness, he then went on to award punitive costs against me.

It was this kind of casuistic and crooked jurisprudence that emboldened el-Rufai and his ilk to routinise the persecution of Nigerian citizens by abduction under the cover of law. I was lucky. Steven Kefas was not. Gloria Ballason’s tenacity and an international campaign eventually enabled to Steven to make bail after 162 days in pre-trial detention in Kaduna prison.

According to Steven, while he suffered prolonged pre-trial detention for an imaginary crime framed against him for being a critic of government, he witnessed kidnappers caught in the act being released without charges. Steven’s explanation is that: “What the oppressive elites do in Nigeria is that they will hire rogue lawyers to help them draft all manner of petitions to get critics and ‘enemies of the government’ abducted and locked up….”

This appears to be the perfect description for what is happening in an ongoing case involving the prosecution of Precious Eze, Olawale Olurotimi, Rowland Olonishuwa and Seun Odunlami before the Federal High Court in Lagos. The accused are all bloggers who run different platforms as citizen journalists or aggregators.

On 19 September, Country Hill, a law firm acting on behalf of Guaranty Trust Holding Company (GTCO) and its CEO, Segun Agbaje, wrote a petition in which they complained against the accused for what they called “acts of cyberbullying, criminal extortions (sic) and conducts (sic) likely to cause a breach of public peace” arising reportedly from material published on their blogs about Guaranty Trust Bank (GTBank). Importantly, the complaint omitted any mention of the sums that any of the suspects allegedly extorted or sought to. Subsequent investigation by the police showed clearly that upon the material being brought to their attention by intermediaries, the suspects had voluntarily pulled down the publications complained of.

Acting on this petition, nevertheless, the police promptly arrested and detained Precious Eze and Olawale Olurotimi, both of who have been held in pre-trial custody since then. By the date you read this, each of them would have been in pre-trial custody for over 91 days. That is more than double the maximum duration of 42 days of pre-trial custody allowed by the Administration of Criminal Justice Act.

It took the police just four days to conclude investigation. Michael Abu, the chief superintendent of Police (CSP) who led the investigation into GTBank’s petition, wrote in his report of 23 September, with reference to Precious Eze and Olawale Olurotimi, that “these types of people be used as scapegoat” and recommended that they be “charged  to court for the offence (sic) of conspiracy, cyberbullying, attempt to extort money through fraudulent means and conduct likely to cause the breach of peace.”

On 14 October, the police re-arraigned them. Ten days later, the amended charges filed against them included six counts of cyberbullying and two each of conspiracy and extortion. To prosecute them, GTBank secured the “fiat” of the Inspector General of Police to instruct a high-powered team of ten lawyers, including three Senior Advocates of Nigeria (SANs). This is a classic example of “oppressive elites” capturing the criminal process for destructive purposes against poor citizens.

Until now, the people who orchestrate these kinds of travesties and their judicial and legal co-travelers have enjoyed earthly impunity. Judges like Peter Mallong made this possible. The one lesson, however, of the Dele Farotimi case is that citizens now have the wherewithal to make these kinds of perversion of the legal and criminal process costly for those who orchestrate them.

In this case of Precious Eze and Olawale Olurotimi, that should be even moreso, given that the travesty is procured at the instance of a commercial and corporate actor. We are both citizens and customers. In this dual capacity we have the muscle to resist the determined conspiracy of politicians and corporates who seek to muzzle and destroy an informed and responsible civics. It is not too late for GTBank to retrace its steps.

Odinkalu, a lawyer, teaches at the Fletcher School of Law and Diplomacy and can be reached through chidi.odinkalu@tufts.edu.