In this survey by KEHINDE OSASONA, legal practitioners from different geo-political zones, review the recent attacks against Nigerians in South Africa and explore options available to the Federal Government to secure compensations for victims of the attacks and avert recurrence.
The African Court option, diplomatic line both welcomed – Michael Omosegbon
Well, the suggestions of toeing diplomatic path or and going to African Court are both within the ambit of law. They are both welcome. However, even when we have the rights to be aggrieved or feel cheated, we also have to understand the position of Nigeria in the comity of African nations. We remain big brother.
South Africa, no matter how great it is today, still remains one of our children that we liberated from slavery. The President Buhari’s visit to South Africa was to achieve certain results diplomatically; and that is not to say that the advocacy that they be dragged to African Court to press charge on repatriation is misplaced.
For me it would send the signal that when you allow the spirit of Xenophobia overwhelm you, you will pay AYZ for certain things.
Don’t also forget that the Nigerian government has not ruled out the court option but I think she is taking it one step at a time before she avails herself with the AU Court option.
The primary function of any government is protection of lives and properties of its citizens – Akan Essien
The issue at stake is international in nature and the Federal Government has already intervened knowing full well that Nigerians are resident in that country where the xenophobic attack took place. The primary function of any government of a country is among other things the protection of its citizens’ lives and property, whether at home or in the diaspora. For me, the assumption that it might strain bilateral relationships notwithstanding, I think the Federal Government has a job to do here.
On the issue of seeking repatriation via African Court, I think legal action is not a bad idea too because they are a legal entity. They can sue and be sued and not exempted from legal liability because lives were lost in the process and International Treaty has been breached. So, if the Federal Government feels it was the right option, no law stops her from doing so.
Amicable resolution should be employed in any dispute – Barr. Paul Akogun
When you talk of diplomatic option, it is always a good one. Again, as family, amicable resolution is also good in any dispute. I said that because as Africans, we are family and Nigeria has continued to play the role of father of Africa to all. So, when things like this happen, toeing the diplomatic line is always desirable but when such fails, then the court option may now fly.
I chose the diplomatic approach because it is the saner thing to do in the 20th century and if it fails, then the legal option can now be explored.
Dialogue, amicable solution rather than litigation is key – Gbenga Ajibulu
You see, we have different perspectives to these issues. First, you have to look at the country itself. If we want to toe the line of repatriation for instance, are we ready to accommodate them? Do we have jobs for them? Even those who are in Nigeria are still suffering.
I think the first thing to be done is to look at the situation of the country and see if we are ready for repatriation. For me, I think dialogue like the President and his team have gone to do, is the best option.
The Nigerians involved here have investments in that country and the reason why they left in the first place was because of the situation in the country.
For me, I will choose amicable solution to the diplomatic face-off between the two countries. Come to think of it, the Alternate Dispute Resolution option which is also done in court can be used instead of the line of litigation via African Court which for me could breed long time enmity.
Legal action will cause disharmony, diplomacy better – Martin Kalu
In my own opinion, I think to toe the line of a legal action to an extent would be protracted, linger for long and cause more disharmony between the two countries.
When we talk about xenophobic attacks and all that, aside Nigerians, Zimbabweans, Zambians too were affected and I think with the situation of things, diplomatic approach must be embraced fully in resolving it because it would, to an extent, help maintain close ties earlier built.
Nigerian government should be firm as negotiation continues – Enemona Shaibu
I will opt for diplomacy any day. No country is an island on its own. We all need each other. After the repatriation exercise, you could see that the number of Nigerians still living in South Africa despite the wave of attack outweighs the number of people that came back home.
So, in guiding our own business interest there, we do not have to throw away the baby with the bath water. Don’t also forget that some people are on educational scholarship in that country, do you want them to abandon it?
Nevertheless, I would recommend that the Nigeria government be very firm and should not take it as business as usual when negotiating with the South African government such that there would be an agreement that any loss suffered subsequently by a Nigerian as a result of xenophobic attack, the South African government must be made to take responsibility.
If we feel like seeking redress, I think we should toe the line of SERAP – David Seidu
The essence of international law is to regulate international relationships between countries. I think that informed President Buhari-led team’s visit to South Africa. But again, the essence of law is that when there is grievance as a result of reaction of some citizens, you have the option of seeking redress.
Yes, it is good to maintain diplomatic ties, but when you do that at the expense or risk of your citizens, then that would not be too good. So, if we have the option of seeking redress at the African Court, I think we should toe the line of SERAP.
I align myself with President Buhari’s stance on xenophobic attack – Funke Audu
I believed that owing to our bilateral ties, when a thing like this happens between two countries, it should be solved through diplomatic means.
I totally condemn the killings that took place in South Africa under the guise of xenophobia. Note that no one has the right to take anyone’s life. In fact, no one should take any life.
However, when diplomatic moves fail, then we can begin to talk of legal action. My take is that the step by Mr President to avert further killings of Nigerians and looting of their property was a good one.
Taking legal action would forestall future attack – Chukwuemeka Oriko
I personally condemn the fact that our president just decided to travel to South Africa recently many weeks after the unfortunate incident.
If he had gone there when the trouble first brewed, those who returned hurriedly would have stayed back and monitor their businesses.
Despite the visit and what have you, taking a legal action for me would have placated the victims of the xenophobic attack. Not only that, they should be proactive enough in order to forestall future attack.
Of treason charge, Sowore’s bail and matters arising
After the initial bail order delivered by Justice Taiwo Taiwo of the federal high court was disregarded, a relief came the way of activist and RevolutionNow convener, Omoyele Sowore through Justice Ijeoma Ojukwu who granted him a fresh bail. KEHINDE OSASONA examines the intrigues that trailed his detention before trial.
The new twist
After the initial bail order given by Justice Taiwo Taiwo of the federal high court was disregarded by the Department of State Security (DSS), Justice Ijeoma Ojukwu of the Federal High Court last week admitted detained convener of #Revolution Now Protest, Omoyele Stephen Sowore to bail in the sum of N100m.
Also admitted to bail in the sum of N50m is Sowore’s co-defendant, Olawale Adebayo Bakare, facing alleged treasonable felony charge, among others.
Justice Ojukwu who admitted the defendants to bail in a ruling, held that the offences they were charged with are bail-able ones.
As part of the bail conditions, Sowore is to produce two sureties in like sum who must be resident in Abuja and show evidence of tax payment for three years from 2014 to 2016.
The two sureties must have landed property worth N100m each and must deposit original copies of the property title with the court.
Sowore was prohibited from traveling out of Abuja throughout the trial
Bakare on his part is to produce one surety in the sum of N50m and also show evidence of tax payment within the same three years period.
The court in addition ordered the defendants not to participate in any form of protest pending the determination of the suit.
They are also expected not to travel without the permission of the court.
Justice Ojukwu also ordered that the defendants be remanded in custody of the Department of State Service (DSS) pending the perfection of their bail.
Earlier, in arguing the bail application, counsel to the defendants urged the court to admit them to bail on the grounds that they are entitled to bail and that they do not have any criminal record.
Femi Falana SAN, submitted that the claim by the respondent that the defendants will jump bail being a resident of America is not tenable, stressing that the 1st defendant was a candidate in the February 23 presidential election.
On the first charge of treasonable felony, the senior lawyer argued that the word ‘Revolution’ has never been criminalised, adding that Buhari after losing election in 2003 called for a revolution and was never arrested by the respondent.
On count two which accused Sowore of insulting the president, Falana said that the law does not allow a public officer to use the machinary of state to “settle scores”, stressing that if the president feels insulted, the legal option before him is to sue for libel or defamation.
Reacting to the case of Asari Dokubo cited by the respondent in opposition to the bail application, Falana claimed that Dokubo was denied bail by the Supreme Court based on his confessional statement and not because of the severity of the charge against him. He submitted that nowhere in Sowore’s statement was he associated with violence.
He assured the court that if granted bail, the defendants will not interfere with evidence or witnesses of the prosecution.
He cited several cases where persons accused of treasonable felony were granted bail even on self recognizance and urged the court to do same for his clients or at most admit them to bail on liberal terms.
While stressing that the case of Nnamdi Kanu, who jumped bail last year was quite different from that of his client, he submitted that the respondent knows Kanu’s whereabouts and can easily extradite him if they want to.
In his opposition to the bail application, counsel to the prosecution, Hassan Liman SAN, urged the court to disregard the submissions of the defendants because they touched on the substance of the case.
He said that the charge against the defendants is severe, carrying life sentences if convicted hence the high risk of the defendants jumping their bail if granted.
While citing the case of Nnamdi Kanu who absconded from his trial after he was granted bail by a Federal High Court, the prosecution submitted that the first defendant is a flight risk being a resident of the United States of America.
Another reason the court should not release the defendants on bail is the possibility of the defendants repeating the act, adding that Sowore had on September 30 after the court’s proceedings was shouting ‘Revolution now’.
Liman in urging the court not to admit the defendants to bail said the respondent has concluded investigation and are ready for an accelerated hearing of the suit.
They pleaded not guilty to the charges
Meanwhile, during their arraignment, counsel that held brief for Sowore and Bakare, Adeyinka Fusika-Olumide, urged the court to prevent the case from proceeding so that “those who are not part of the Judiciary will not make mockery of the Judiciary.”
Fusika-Olumide said the defendants were not ready to take their pleas on Monday.
“There are two reasons. It is part of the process of arraignment that defendants should have access to their lawyers,” he said.
“There are two options in arraignment. Whether to plead guilty or not. To do that, they must have access to their lawyers who will advise them.
“It was only yesterday that Falana called me to inform me of his being outside Nigeria and requested that I hold the brief for him. The information he gave me was that throughout last week, he was virtually resuming and closing at the office of the SSS. He was denied access to Sowore.” He was quoted as saying.
Fusika-Olumide was about to discuss the bail earlier granted but the prosecution lawyer, Hassan Liman, a senior advocate of Nigeria, objected to that announcement, saying, “the matter as discussed in another court should not be brought here.”
The court, however, allowed Fusika-Olumide to continue and the defense lawyer responded to the arguments of Mr Liman, saying that the bail was not granted by another court, but by the federal high court.
Fusika-Olumide said the court had instructed the release of Mr Sowore, but that the SSS had refused to comply with the order.
The prosecuting lawyer, Liman, said the fact that the lawyer representing the defendant did not know they had been served was not a problem. He said any decision to deny the hearing of the case would be unfair to the prosecution.
Liman said the order for bail was made pending the arraignment of the defendant. He said the defense could not say they will not take the plea.
“That submission is for the press,” Liman said, accusing Mr Fusika-Olumide of attempting to subject the case to a media trial.
“Upon arraignment, this order has no more life,” Liman said.
Olumide-Fusika accused the SSS of trying to intimidate the judge who granted the bail.
He said the SSS informed them about the arraignment on the pages of the newspaper and wondered who was guilty of the playing to the gallery.
The court ruled that there was no impediment to the taking of the plea. The court presided by Justice Ijeoma Ojukwu then ordered the defendants to take their plea.
While taking the plea, Sowore said he did not understand the second count and the count was explained to him. He then pleaded not guilty.
He also said after hearing the count four that he did not have a UBA account
Sowore, it would be recalled, was accused by the authorities of attempting to overthrow Buhari’s government.
Sowore had made waves over the past two weeks over his alleged calls for nationwide protests against the President Muhammadu Buhari–led government.
The Sahara Reportersfounder allegedly accused the current government of badly managing the affairs of the country and called on Nigerians to reject the wickedness of the establishment.
After the DSS picked him up on Saturday, August 3, 2019, the agency accused him of threatening the harmony of the nation by plotting to overthrow a democratically-elected government.
Sahara Reporters has now released an 18-minute long video showing how Sowore was arrested by the DSS.
In the video, DSS operatives entered Sowore’s building complex around 1:05 am on Saturday and commenced on a search that took almost 20 minutes.
While his initial contact with the operatives wasn’t caught on tape, Sowore was apprehended after a slight altercation in the gym.
When he eventually showed up on camera, the slightly resistant Sowore was firmly held by one DSS operative while another pushed him to usher him out of the building.
The Inspector-General of Police, Mohammed Adamu, had warned the organisers, sponsors, allies, supporters, associates and sympathisers of the protest to desist from embarking on the planned protests.