By Aloy Ejimakor
This piece is a summary of
the legal/other consequences of the Army's mid-September armed invasions of
Mazi Nnamdi Kanu's homestead at Umuahia, Abia State .
The state of affairs before the invasion was that Nnamdi Kanu was free on bail
on a subsisting court order; his bail was not on personal recognizance but on a
bond posted by a third-party obligor/surety; and Kanu was neither
judicially-ordered to be re-arrested for breaching his bail, or on account of
any new charges filed.
*Kanu |
It is beyond argument that the invasion achieved
complete routing of Nnamdi Kanu's home and caused fatalities and injuries to a
yet to be determined number of people, including Nnamdi Kanu, who were present
and trapped at the premises throughout the attacks. The invading forces also
'captured' an undetermined number of occupants of the premises, none of whom is
accounted for to date. Most significantly, Nnamdi Kanu has not been seen or
heard from since then.
The inevitable
question that has arisen from the foregoing set of facts is this: What are the
consequences of such an obviously deadly military action against an accused
person who was free on bail? The following analysis will provide some answers.
At common law, a bail is simply a binding promise by an obligor or a surety to
produce an accused in court whenever required to do so. Any monetary or
property item offered by the obligor to back up his promise becomes the bond
that he stands to lose should he fail to produce the accused when required to
do so by the State. In other words, a bail bond is a
written contract in which the State is the Promisee, and the obligor is
the Promisor. The accused is merely the subject matter (or the res) of the
contract. And the fundamental purpose or consideration is to have the
accused appear in court by compulsion of the bond.
So, just like any other contract, a
contract of bail is subject to universal rules of contract, including - in this
particular case of Nnamdi Kanu - an implied covenant on the part of the
Nigerian State that it will not in any way interfere with
or impair the ability of the obligor to produce Kanu whenever required to do
so. This includes the covenant that the State will not take any steps with
the res (the accused, the subject of the bail) that will increase the
risks of 'flight of safety' or the extra-judicial killing of the
accused, which will inevitably lead to nonperformance by the obligor.
So, when the Nigerian State ,
through her Army invaded Nnamdi Kanu's home, it breached the basic covenant that
required the Nigerian
State (or the Federal
government) not to create a situation that will make it impossible for the
obligor to produce Kanu in court. And given that Kanu's death, mortal wounding
or capture are the foreseeable consequences of the invasion, the contractual
doctrines of frustration and force mejeure also
come into play.
It is trite
that the occurrence of force majeure (or superior force) relieves one or both
parties from the duty to perform the contract obligations. The rationale is
simple and that is: The force majeure event - in this case, the military
invasion - is a supervening event or circumstance that was beyond the control
or contemplation of the obligor or even Kanu himself when the contract of bail
was executed. A military invasion is specifically deemed a typical force
majeure event under every human legal system, especially one that was as
targeted and vicious as this one against Nnamdi Kanu.
It can also
happen that, in certain scenarios such as this case of Nnamdi Kanu, a unique
force majeure event will raise the prospects of another contract killer known
as the 'doctrine of frustration'. Under this time-honored doctrine, a
contract (including a bail contract) will be deemed frustrated if its
fundamental purpose (appearance of Nnamdi Kanu in court or Nnamdi Kanu himself)
is destroyed or traduced to the point that his appearance in court becomes
impossible or even onerous. In such event, the obligor or the promisor in the
bail contract will be discharged from his obligation to produce the accused.
This, the accused should no longer be expected to appear at his next scheduled
court date. Assuming that Kanu was not killed or captured but he somehow
managed to retreat to safety, is it reasonable (or even safe or wise) for him
to emerge in plain sight of an army arrayed and on strict orders to kill or
maim him? That will be foolhardy.
Now, consider
this: A Nigerian State that has Kanu on trial for certain offenses - in the
course of time - released him on bail posted by another. Then, the same Nigerian State ordered its army to invade Kanu's
home with live bullets and other munitions. Then, the death of some
unidentified people at that locations ensued from the attacks; and some lucky
ones not killed were captured. During all of these, Kanu was confirmed to be at
the location - trapped and being shot at in barrages and with intensity.
Consider for once that Nnamdi Kanu is human. Now, there are only two things
that could have resulted from this, and they are - Kanu was either killed or he
was captured by the Nigerian army. So, how can anyone now expect Kanu's surety
to produce him in court. Or even for Kanu to magically emerge from nowhere and
stroll to court like a cat with nine lives.
Yet again,
there are other myriad legal, constitutional and international law consequences
arising from all these. The most obvious one is that the Nigerian Army and
those that command it, even from the highest levels, are clearly in contempt of
a Federal High Court by launching military attacks against an accused person (a
ward of the court) who was free on a judicially-ordered bail. The second
violation is constitutional and fundamental and it is found at Chapter IV of
the Nigerian Constitution, to which the army and its commanders are subject.
The third lies in the flagrant breach of the 'African Charter On Human And
Peoples Rights', which is legally enforceable in Nigeria . Then, there are others,
mostly of the diplomatic and penal kinds that will surely come in the course of
time.
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