#EndBadGovernance: Legal noose tightens on Borno minors despite Tinubu’s reprieve

• Govt to investigate police conduct over arrests in cost-of-living protests
• Senator lauds President, faults mishandling of cases
• Legal experts: Tinubu lacks direct authority to order release of detained minors

While minors detained in Abuja for alleged crimes during the #EndBadGovernance protests may have begun heaving a sigh of relief, their counterparts in Borno yesterday commenced a journey into legal labyrinths.

This happened as the police in Maiduguri, the state capital, charged 19 additional suspects and three minors for their roles in the protests. President Bola Tinubu yesterday directed the Attorney General of the Federation, Lateef Fagbemi, to facilitate the immediate release of all minors arrested and facing prosecution for their alleged involvement in the protests across Nigeria.

Tinubu also instructed the Minister of Humanitarian Affairs and Poverty Reduction to ensure the welfare of the minors, irrespective of any ongoing legal processes.

The Minister of Information and National Orientation, Mohammed Idris, announced the directive during a press briefing at the State House, Abuja. According to court documents in Maiduguri, the minors who appeared before Justice Aisha Mohammed Ali were between 14 and 17.

Borno State Attorney General Hauwa Abubakar presented two separate charges, accusing the defendants of treason and using social media to defame the state governor, Babagana Zulum while inciting citizens against the government.

It is alleged that the minors joined a Hausa-language social media group named “Zanga-Zanga” (meaning “protest”) on WhatsApp and TikTok, where they reportedly discussed plans to take arms against the state, an offence punishable under Section 79 of the Borno State Penal Code Law, 2023.

In another charge sheet, 11 defendants are accused of displaying the Russian flag publicly while chanting “Bama yi” (meaning “we reject” or “we won’t participate”), a move prosecutors argued breaches Section 42 and is punishable under Section 76(b) of the state’s Penal Code.

All the defendants pleaded not guilty to the charges read against them. The prosecution requested an adjournment to call witnesses and present evidence. However, the defence counsel, Yakubu Alhaji Adamu, sought an expedited trial, arguing that the accused had already been held in police detention for over 90 days. “Only with an accelerated hearing can justice be served for these young people before this honourable court,” he contended.

Justice Ali adjourned the case for a further hearing on November 18, 2024. She also ordered that the minors be transferred to a juvenile facility while the adult defendants remain in prison custody until the next hearing.

A crowd had earlier gathered outside the court. Family members, human rights advocates, and legal professionals were among those present, all showing solidarity with the detained protesters.

A relative of one of the defendants, Hajara Shaibu, appealed to the state government to show leniency, allowing the accused to return and rebuild their lives.

Also, Hassan Dahiru, State Chairman of the Civil Liberties Organisation, called for the immediate release of the detainees, arguing, “Whether they are mature or immature is immaterial to link them with treason, because there is hunger in the country, and that is undeniable.”

Meanwhile, Minister of Information and National Orientation Mohammed Idris, who announced Tinubu’s directive, revealed that all law enforcement officers involved in the arrest, detention, and prosecution of the minors would be investigated, and those found culpable would face appropriate disciplinary measures.

It should be recalled that 29 children were arraigned last Friday for participating in a protest against the country’s record cost-of-living crisis. Four of the minors collapsed in court from exhaustion before they could enter their pleas.

In total, 76 protesters have been charged with 10 felony counts, including treason, property destruction, public disturbance, and mutiny, according to court documents. The charge sheet indicates that the minors are aged between 14 and 17 years.

The rising cost-of-living crisis has led to multiple mass protests in recent months. In August, at least 20 people were shot dead, and hundreds were arrested during a demonstration demanding better opportunities and employment for young people.

Addressing the media, Idris, who was accompanied by Special Adviser on Public Communications and Orientation Sunday Dare, said: “In recent days, there has been significant public concern and inquiries regarding the fate of the detained minors, particularly following the events in the courtroom last week. In response, Mr President, who is deeply committed to democracy and the rule of law, has directed that these minors be released without prejudice to ongoing legal processes.

“The President has also mandated the Ministry of Humanitarian Affairs and Poverty Reduction to attend to the minors’ welfare and facilitate their safe reunion with their parents or guardians, wherever they may be in the country.

“Additionally, the President has ordered the immediate formation of an Administrative Committee, led by the Ministry of Humanitarian Affairs, to investigate the circumstances surrounding the arrest, detention, treatment, and eventual release of these young individuals.

“Furthermore, all law enforcement officers involved in the arrests and subsequent legal processes will be scrutinised. Any official found guilty of misconduct, whether a law enforcement agent or other government official, will face disciplinary action.”

Idris stressed the need to balance legal considerations with humanitarian concerns, stating that while legal processes may continue as required by law, the minors must be released in the interim.

He reiterated that the Ministry of Humanitarian Affairs is charged with ensuring the safe return of the minors to their families and that any misconduct by government officials will be addressed appropriately.

Reacting, Senator Sani Musa praised President Bola Tinubu for directing the release of the minors, calling the order a compassionate and just decision that underscores the President’s commitment to protecting young Nigerians’ rights.

“This action demonstrates a deep commitment to justice and humanity, offering relief to the affected families,” Musa remarked. “The President’s directive is a crucial step toward healing and rebuilding public trust.”

The Senator also expressed concern over the conduct of the Inspector General of Police and police prosecutors in their handling of the minors’ cases. He criticised what he saw as a lack of regard for justice and child welfare, cautioning that such actions could erode public confidence in law enforcement.

“I am disappointed by the Inspector General of Police and the police prosecutors involved in these cases,” he said. “Their actions stand in stark contrast to the principles of justice and children’s rights. A thorough investigation is necessary to hold those responsible accountable.”

Musa stressed the importance of safeguarding minors’ rights and called on stakeholders to prevent similar incidents in the future. “This should serve as a reminder that the rights of minors must always be respected and upheld,” he added.

HOWEVER, Emeka Okpoko, a Senior Advocate of Nigeria (SAN), asserted that President Tinubu does not have the authority to issue such a directive directly. “He cannot. The most he can do is act through the Attorney General’s office, which holds what is known as the ‘power of nolle prosequi.’ This power allows the Attorney General to declare that the state is no longer proceeding with the case and to withdraw it,” he said.

“The President cannot act on his own in this matter; rather, it is the Attorney General, who is a minister within his administration, who has the authority. The Attorney General of the Federation (AGF) has the constitutional power to do so, as he is the chief law officer of the entire federation,” he added.

Similarly, human rights lawyer Chief Malcolm Omirhobo noted that the power to release minors facing charges of treason rests solely with the judiciary, meaning the court can order their release. However, he acknowledged that, as Commander in Chief and appointing authority for the Attorney General and judges, the President holds sufficient influence to persuade, though not to mandate, their release.

“He can advocate for their release or provide reasons why the minors should be freed without trial. Ordinarily, it is the court that determines whether a case proceeds to trial. The Attorney General or police can withdraw the charges,” he explained.

Omirhobo highlighted the principle of separation of powers, which prohibits interference by one arm of government in the functions of another. Echoing this viewpoint, Lagos-based senior lawyer Eze Alala stressed that, under the constitution, the President lacks the executive power to order the “immediate release of minors” already before the court.

Alala said he can only achieve this by directing the Attorney General of the Federation to file a nolle prosequi on his behalf, adding that such an executive intervention undermines the judiciary’s independence.

Another human rights lawyer, Deji Ajare, agreed that while the President cannot issue such an order directly, he may direct the AGF to act on his behalf.
Ajare explained that the offences with which the minors were charged are federal, and the Attorney General has the power of nolle prosequi. This allows him to appear before any court, irrespective of who initiated the criminal trial, and exercise his power to request an immediate termination of the trial without any obstruction.

“The President may, therefore, instruct the AGF, his appointee, to act accordingly,” he reiterated, emphasising that the President himself does not have the power to command the court.

Human rights lawyer Evans Ufeli remarked that Nigeria’s system often leads to minors being arrested, detained, and arraigned in open court, thereby violating their rights. “Charging them in the first place was a mistake, and remanding them compounded that violation,” he stated.

“Now, without being discharged of any alleged criminal liability, the President is attempting to intervene. We are not operating under a monarchy or a single-system government where the President can override the judiciary or make decisions contrary to court rulings. The President’s directive stems from the fact that this situation has become an international embarrassment,” he pointed out.

Titi Aina-Scott, Managing Partner at Scott’s Legal, observed that the President’s directive to release the minors calls for a closer examination of minors’ criminal liability under Nigerian law.

She explained that, under Nigerian law, children under seven are completely exempt from criminal responsibility, those aged seven to 12 have limited criminal capacity (which can be contested), and those over 12 can be held criminally responsible, though age is considered during sentencing. Aina-Scott concluded that the validity of the President’s directive depends on the case’s specifics.