Femi Falana, senior advocate of
Nigeria (SAN), says Abubakar Malami risks being removed as the attorney-general
of the federation (AGF) if he fails to secure the release of Omoyele Sowore.
Last Friday, Malami took over
Sowore’s case from the Department of State Services (DSS), and with this
development, Falana, counsel to the activist, asked him to use his office to
secure Sowore’s release.
The AGF, however, said he cannot
take any decision on Sowore’s release.
Responding in a statement on
Tuesday, Falana said the AGF has not taken note of the legal implications of taking over the case.
“With respect, Mr. Malami has not
taken cognizance of the legal
implications of taking over a pending criminal case in exercise of the powers of an Attorney-General under the
common law and the Constitution,” the statement read.
“In the case of State v
Ilori (1983) JELR 51804 (SC) the Supreme
Court dwelt in extenso on the powers of an Attorney-General under section 193
of the 1979 Constitution which is in pari materia with section 174 of the 1999
Constitution. In that case Eso JSC of blessed memory said inter alia:
“An Attorney-General, who
proposes to act under his powers to institute and undertake, take over and
continue or discontinue criminal proceedings would need to bear in mind public
interest, interests of justice and the need to prevent abuse of legal process
before he exercises his powers, since if he ignores any of these, he would run
the risk of exposing himself to removal or reassignment by his appointor, and
above all – and this is most important – also to public opinion.
“‘The powers of the
Attorney-General under s. 191, (and notwithstanding sub-section (3) thereof)
are still a matter for his quasi-judicial discretion and one within his
complete province. He still possesses the constitutional powers in full and the
responsibility for any decision thereupon rests solely on him.
“Since Mr. Malami has taken over
the case of FRN v Sowore v Another he is deemed to possess ‘the constitutional powers in full
and the responsibility for any decision thereupon rests solely on him.’
Therefore, he cannot like Pontius Pilate wash of his hands with respect to the
illegal detention of Sowore by the State Security Service. Furthermore, since
section 287 of the Constitution has
imposed a legal obligation on all
authorities and persons in Nigeria to comply with the decisions of all
competent courts the Attorney-General of the Federation, Mr. Malami is duty
bound to direct the State Security Service to release Sowore on bail in
compliance with the valid and subsisting order of the federal high court.”
The senior lawyer said on legal
principle, they are compelled to ask the AGF to direct the DSS to release
Sowore without further delay.
Sowore, convener of Revolution
Now Movement, was arrested in August for planning a nationwide protest.
Despite a court order granting
him bail, the activist has been denied his freedom.
He was briefly released after 124
days in detention but was rearrested less than 24 hours after, and he has been
in DSS custody since this time.
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