By Mike Ozekhome
I congratulate Justice Binta Nyako for being courageous enough to even grant bail at all to IPOB leader, Nnamdi Kanu, on health grounds. This is predicated on the truism that the Judiciary has been so humiliated, browbeaten, terrorised and emasculated by the Executive that it takes extraordinary courage and daring bravado, for a judge to even grant bail to a much vilified Nnamdi Kanu, whose only “crime” is that he seeks self-determination for his repressed, oppressed, suppressed and marginalised indigenous people of Biafra, a right recognised even by the UN and AU in all self-determination instruments.
The catch here, however, is that in granting the bail, the judge, apparently trying to tread softly, took back with the right hand what she gave with the left hand. Bail is a constitutional right. It is guaranteed by section 35(5) of the 1999 Constitution, with or without conditions attached. But any conditions so attached to bail must be such that the grant of bail is itself not rendered meaningless and impotent, as in the Nnamdi case. Kanu’s bail conditions are outrightly stringent, punitive, discriminatory, profiling and stereotyping. Hear them:
(1) He must produce 3 sureties, who must deposit the sum of N100m each (a ready recipe for corruption).
(2) One of the sureties must be a highly respected Jewish leader since Kanu practises Judaism as his religion (discrimination on the basis of religion).
(3) Produce a highly placed person of Igbo extraction (discrimination on the basis of place of origin and ethnic group).
(4) Produce a respected person, who resides and owns landed property in Abuja (a call for the elitist money bags).
(5) Must not attend any rally or grant an interview (breach of freedom of movement and speech).
(6) Must not be in a crowd exceeding 10 persons (denial of freedom of association).
(7) Must surrender his Nigerian and British passports (denial of freedom of movement).
(8) Must sign an undertaking to be available for trial at all times (normal. This is the main purpose of bail).
(9) His wedding ring and reading glasses to be given back to him (thank God for tokenism).
(10) Must provide monthly update on Kanu’s health (yes, to ensure his health is improving).
Some of the bail conditions are not only troubling, upsetting and punitive, but are simply unconstitutional, as briefly highlighted above.
Section 42(1) of the 1999 Constitution provides that:
“A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:-
(a) be subjected either expressly by, or in the practical application of, any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religion or political opinions are not made subject to; or
(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.
(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.
It is crystal clear from these constitutional provisions that the stringent bail conditions granted to Nnamdi have clearly discriminated against him and subjected him to “certain disabilities or restriction” on the basis of his religion, place of birth, political opinion and ethnic group.
What the bail conditions are simply saying is that it will be illegal, forbidden and contrary to the bail conditions were Kanu to do the following:
(a) Kanu cannot be received by a multitude of his village people, kindred and kinsmen, who have missed his presence since his mindless incarceration over one and half years ago, contrary to the right to freedom of association granted by section 40 of the 1999 Constitution.
(b) That Kanu cannot express his right to freedom of expression clearly guaranteed by section 39 of the Constitution.
(c) That Kanu cannot exercise his freedom of movement guaranteed by section 41 of the Constitution.
(d) That Kanu cannot receive sympathisers, well-wishers and political associates, once they are more than 10.
(e) That Kanu cannot freely exercise, without being monitored, his freedom of religion and conscience contrary to section 38 of the Nigerian Constitution.
(f) That Kanu cannot, at any given time, even in his household or larger family setting, host more than 10 people (ludicrous; unnatural!).
(g) That Kanu cannot even visit any hospital to take care of his health, because the hospital staff of doctors, nurses, para-medical staff and other patients, must surely exceed 10 (contrary to section 17(3)(c) of the Constitution
(h) That Kanu cannot attend church service or the synagogue worship to glorify God in thanksgiving for his release, since such place of worship will harbour hundreds if not thousands of people (contrary to section 10 and 38 of the Constitution).
(i) That Kanu cannot even go to a busy motor park, airport, seaport, parks and gardens, cinema hall, theatre, to transport himself, watch films or relax, or even go to Shoprite to shop.
(j) That Kanu cannot deliver lectures to students or groups, or participate in seminars, workshops, summits, conferences, etc., as these involve many people.
(k) That by way of summary, Kanu should remain a hermit, marooned like Robinson Crusoe in the 1719 novel of the same name, by Daniel Defoe, who spent over 28 years as a castaway, after he was washed up on the shores of a deserted island, near the mouth of Oronoco River in South America.
Day by day, we subject the Nigerian society to bottomless ridicule and derision in the comity of nations. Bail conditions are simply to ensure the attendance of a person in court, and nothing more. Once excessive or punitive, bail loses its purpose, function and goal.
I urge Nnamdi Kanu’s lawyers to immediately file an application before the same Justice Binta, for variation of the bail terms to more favourable ones that will make Kanu a human being once more. I urge the Nigerian judiciary to stand up “gidigba” to defend the rights of all Nigerians against executive lawlessness, judicial timidity and legislative rascality.
God bless Nigeria and Nigerians.
•Ozekhome (SAN) is a constitutional lawyer and human rights activist.