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Law empowering gov to arrest, detain at pleasure rattles Imo

By Charles Ogugbuaja, Owerri
19 September 2020   |   4:19 am
As reactions trail the signing into law, the Imo State Administration Of Criminal Bill No 2 of 2020 (ISACJL, 2020) by Governor Hope Uzodimma, which empowers him to arrest and detain...

As reactions trail the signing into law, the Imo State Administration Of Criminal Bill No 2 of 2020 (ISACJL, 2020) by Governor Hope Uzodimma, which empowers him to arrest and detain any resident of the state for as long as he wishes, the governor has accused the opposition of sponsoring dissent in the state.

A former Commissioner for Information and Professor of Law, Nnamdi Obiaraeri, had on Wednesday, while delivering a lecture in Owerri, as part of this legal year’s assizes, cited Section 484 and 485 of the law as draconian, as they vested too much power on the governor to order and detain anyone.

“Section 484 of the ISACJL, 2020 provides that where any person is ordered to be detained during the governor’s pleasure, he shall notwithstanding anything in the ISACJL, 2020 or contained in any other written law liable to be detained in such place and under such conditions as the governor may direct and whilst so detained shall be in proper custody.  

“Section 485(1) of ISACJL, 2020 enacts that a person detained during the governor’s pleasure may at any time be discharged by the governor on license which said license may be in such form and in such conditions as the governor may direct under section 485(2). 

“Finally, in section 485(3) of the ISACJL, 2020, a license may at any time be revoked or varied by the governor and where license has been revoked, the person to whom the person the license relates shall proceed to such place as the governor may direct and if he fails to do so, may be arrested without warrant and taken to such place.”

But a rights group, Save Imo, through its Founder, Nze Ebubeagu Ekenulo, threatened to sue the government and relevant stakeholders that participated in making the Bill become law, if the governor fails to withdraw his assent and represent it to the State Assembly for repeal, blaming the leadership of the House for the passage.

Speaking with The Guardian yesterday, the Special Adviser to the Speaker on Media, Emeka Ahaneku, said the House was on vacation, stressing that when the lawmakers return, they might review the law.

He explained that the Bill went through all the processes, including First, Second and Third Readings before it was committed to committee stage.

But in a statement issued by Uzodimma’s Senior Special Assistant made available to The Guardian, yesterday, the governor accused the opposition of insinuating out of nothing and laughable, stressing: “Remember, this Bill, from what we were told, was passed six months ago.

“Expectedly, however, the opposition has been cashing in on this to make their usual mountain out of a molehill, apparently trying to smear the integrity of the governor, because for them, Uzodimma removed their mouth from their mother’s breast. Quite laughable.”

He asked rhetorically: “Is Uzodimma a member of the state Assembly? Is that Bill an Executive Bill or Private Bill? If it was a Private Bill, was the governor part of the proposers or originators of the Bill? Was Uzodimma’s opinion sought before the Bill was proposed in the first place? Did Uzodimma partake or participate in the debate leading to the passage of the Bill by the House before the governor eventually assented to it? Does it mean that the House can send to the governor for assent, a Bill they never collectively cross checked? Does it mean that proposers of any Bill did not make effort to see the final draft of any Bill they proposed before it was finally taken to the governor for assent?”

He continued: “Having asked these questions, let me say here that for those who do not know, but decided to be mischievous, the Governor or President reserves right to refuse to assent or accept to assent any Bill.

“The paper work of any Bill is done by the legislature, including the debate and its passage. What the governor does is only to put pen on paper and even the House legally have the right to override the governor in a case he refuses to sign any Bill within a stipulated time.

“So, I don’t know why the blame on the governor for merely performing his constitutional role. This is even an indictment on the whole 9th House, particularly the sponsors of the said Bill. Are you saying that the House does not have an internal mechanism to cross-check a Bill they want to present to the governor before it is passed?

“Please, let us continue to commend the governor; he means well for all of us in Imo State. Let us place blame where it is necessary.”

Expressing shock over the outcome of the Bill he sponsored, the member representing Oguta State Constituency and Deputy Minority Leader, Frank Ugboma, said the outcome was not what he presented ab initio, stressing that he had reached out to his other 26 colleagues in the House.

In the statement he issued yesterday, Ugboma said: “Some sections in the recently gazetted ACJL came to me with rude shock. As the Chief Sponsor of the Bill, I have had cause to search through all the documents that cumulated into the Bill.

“I must say that I have done this repeatedly and have equally taken further pains in reaching out to my colleagues in the House. I must admit that they have each expressed shock over the sudden obnoxious sections of the law, particularly Section 484 of the said ACJL of Imo State.

“For the avoidance of doubt, the Bill I presented had about a total of 372 Sections. How and where it was amended, recreated and reshaped into Section 484 and beyond remains a mystery and a legislative wonder of our time, as what I presented and circulated to my colleagues during plenary, both in the First and Second Readings, did not contain such obnoxious and embarrassing Section 484, neither was it deliberated in the House Committee of the whole. It, indeed, never existed in the House.

“No one has been able to explain to the members of the 9th House how and at what stage the said Section 484 was inserted into the Bill. It smacks of an evil manipulation to throw Imo people into the dungeon.

“As a lawyer, I have had cause to fight against such obnoxious laws and as an activist, there is no way this section would have scaled through plenary in the 9th House, which I am part of. All of us are already available victims of these obnoxious sections. Not even those who practised this calculated affront on the constitution are exempted.

“This particular provision is a nullity ab initio, in view of the unambiguous provisions of Sections 1(1), (3), 4,5,6 and 36 of the 1999 Constitution (as amended). This is very appalling.”

Ugboma said in his “quest to ascertain which hands of Esau made it into the Bill, I presented, attention was drawn to a list said to be the names of Imo people that facilitated the domestication of the law in the State. It need not be overemphasised that in lawmaking, such contributions and or inputs from members of the public are usually submitted to the House for deliberations.

“I am, however, saddened that there is no record of presentation of such obnoxious contributions to the House. There is no record anywhere that such contributions was laid and/or circulated to members during plenary.

“I have requested that my colleagues constitute a committee to ascertain how such horrendous act was practised on this ordinarily good legislation. Its outcome, I believe, would interest all lovers of democracy and enable future legislative vigilance.
“This was not the Bill I presented and sponsored. “In the manuscripts that I received after each hearing and which I have today, compared with that given to my colleagues, there is no hand of Esau. This has informed my view and I have today forwarded a Bill for the immediate amendment of those offensive and draconian sections.”

In his reaction, factional state Publicity Secretary of the All Progressives Congress (APC), Onwuasonya F. C. Jones, castigated the law, saying: “That section did not mention any of the known law enforcement agencies as the arresting authority, but rather made a vague provision that someone may be detained at the pleasure of the governor.

“This implies that anyone could actually be empowered by the governor to affect that arrest. It could be Chinasa, it could be Akaolisa, it could be Anyaehie and it could be any thug or aide who the governor feels can carry out that assignment.

“The obnoxious provision goes further to say that the detained person may be kept in any place and under any condition which the governor directs. You could be picked up anywhere, anytime and kept in any place or in any condition.

“The law did not even provide for what infractions the governor may be at pleasure to order someone’s detention. It could be for anything as bad as asking that the governor pays civil servants their entitlements, calling the governor the Ben Johnson of Nigerian politics. It could be for holding a legitimate aspiration to run for an election in the state or to freely associate with legitimate political organizations. It could even be for deciding to go to school or attend church service or for admiring a beautiful woman, who coincidentally, the governor fancies.

“The vacuousness of these sections of the law is further accentuated by the provision that a detainee may be released only by getting a licence from the governor. This licence may be likened to paying ransom for a kidnapped victim. And by that provision, the licence will be provisional and could be revoked at any time.

“By this, the governor’s hostages would never be free. The licence would contain some provisions that would eternally deprive such victim of his or her basic rights to freedom. So, once detained at the governor’s pleasure, you remain a slave to the governor, perpetually.

“There is also another provision that authorises the governor to banish such individual should they default on the terms of their ‘release licences.’

“One could see clearly that Imo has a governor who is dreaming his dreams, backwards. I do not know why and how a governor in this 21st Century could imagine that such an anachronistic law could be implemented in Imo of all places. This is most disrespectful to the sensibilities of average Imolites, renowned for their intellectualism, political awareness, stubbornness and exposure.

“I have read some apologists of the governor arguing that the entire blame for this embarrassing piece of legislation should be placed at the doorsteps of our legislators, but that is as silly as any argument could be. Even without having heard from any of the legislators, …but shouldn’t the governor have read what he signed? Shouldn’t the governor had withheld consent, if he wanted to make the slightest pretence to understanding the simplest tenets of democracy?

“But the members of the House have come out to denounce this lawlessness passed off as law and we cannot but be rest assured that those offensive sections will be extracted and thrown into the pit latrine in Omuma, maybe, with its initiator…”

But a Federal Commissioner /Ombudsman, representing Imo in the Public Complaints Commission (PCC), Willie Amadi, also a lawyer, said the law should not heat up the political space.

In a statement yesterday, Amadi stated: “I have taken time to dissect, analyse and discuss Sections 484 and 485 of the ACJI and the clarification and education I am getting is that contrary to the widely held views that the provisions are inconsistent with the provisions of the 1999 Constitution (as amended), it is rather a provision specifically and deliberately designed to protect offenders below the age of criminal responsibility and persons of unsound mind.

The “any person” drafting clause is therefore an inelegant drafting delivery, which in my humble opinion, created ambiguity in its understanding. ‘Any person’ should have read ‘Persons of unsound mind’ and or ‘Persons under the age of 17.’

“Recall that detaining someone at the governor’s pleasure is not a novel development; it has always been in our criminal procedure law and other states of the federation have similar law in their criminal administration law.

“Going forward, it is crystal clear that there are category of persons in respect of whom such orders can be made by the courts. Persons falling under this category are usually specified, i.e. persons bereft of the requisite sanity to face trials and juveniles that are condemned by the courts, but cannot be sent prison because of their age.

“See Sections 319 of the Criminal Code, which provides that when a child is below the age of 17, the court cannot sentence him/her to death, but will be detained at the Governor’s pleasure.

“Chapter 44 of the Criminal Procedure law equally gives the court the powers to order detention at Governor’s pleasure.

“Recall that during the Otokoto saga, one of the young men sentenced to death was not killed because of his age and was detained at the Governor’s pleasure.”

He continued: “It is, therefore, extremely important to read Sections 484 and 485 with this clear legal understanding, rather than with the belief and or suspicion that the provision is applicable to the normal citizenry with the consequences of abuse by the Governor of any state.

“Commentaries, including the House of Assembly and other stakeholders, should not just shake table for political mischief, but for the security, welfare and good governance of the state. I stand to be corrected.”