Section 39: Every person shall be entitled to freedom of expression including freedom to hold opinions and to receive to impart ideas and information without interference.
Section 40: Every person shall be entitled to assembly freely and associate with other persons and in particular he may form or belong to any political party, trade union or any association for the protection of his interests.
Going by the wordings of the said constitution as reproduced above, the inevitable question that arises for determination is whether the said ruling does not violate the fundamental rights of the accused person.
The constitution is the grundnorm and the fon et origo of every other law. This supremacy clause is so fundamental and supersedes the powers of every court in the land. This supremacy principle is further entrenched in section 1 (3) of CFRN I999 (AS AMENDED) as reproduced below;
If any other law is inconsistent with the provision of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void.
That ruling as delivered by Binta Nyako J. is a clear violation and infringement of Nnamdi Kanu’s fundamental right to freedom of expression at the press and right to peaceful assembly and association pursuant to section 39 and 40 of the CFRN 1999 (as amended) .
The Supreme Court has advised in C.P.C V Nyako (2011) ALL FWLR pt 587 pt 627-628 ratio 3 cautioned that in the interpretation of legal rights, a broad interpretation which entails a liberal approach or a global view should be employed.
On the sterngth of that advice , I do not doubt the fact that the grant or refusal of an application for bail is wholly at the discretion of the court. But however, it is a clear and trite position of the law that such discretion must be exercised judicially and judiciously.
In NIB investment (West Africa) LFO V G.E (Nig) Ltd (2011) ALL FWLR pt 593 p 2013 ratio 3 ,the court viewed discretion as that equitable decision of what is just and proper under the circumstance or a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar case guided by the principles of the law. The court in extending caution to the bench in the exercise of discretion stated in EFCC V Akingbola (20150 ALL FWLR pt 794 pg 139-140 ratio 3;
“Discretion is the power or right to decide or act according to one’s own judgement; freedom of judgement or choice, and when applied to public functionaries like judicial officers, discretion is the power or right conferred upon them by law for acting in certain circumstances, according to the dictates of their own judgement and conscience, uncontrolled by the judgement or conscience of others. It connotes action taken in light or reason as applied to all facts and with a view to the right of all parties while having regards for what is right and equitable under all circumstance and law. Discretion cannot dictate to the law; it is the law that dictates when a court can exercise its discretion, how it can exercise that discretion and what it is allowed to exercise its discretion on”.
I have followed this case carefully with keen interest from the time of the arrest of the accused to the arraignment and subsequent trial. The bail of the accused person had become a subject matter of national discourse among lawyers and non-lawyers alike. Whether the grant of the bail to the accused person is predicated on the grounds of the accused ailing health or the genuine concern of the court to ensure that the accused stays alive to prosecute his matter or as a result of continuous and overwhelming public outcry which paints the image of the present administration in a negative light, what is sacrosanct is that conditions of bail should not offend the law whether it applies to Nnamdi Kanu or anyone.
Regards .
By Christian Tom
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