… Claims that Injuries on Alleged Torture Victims were Self-Inflicted
Five years after the Anti-Torture Act was passed into Law, the Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami (SAN) has said that he is yet to make rules and regulations for its effective implementation as required by the Act because of the non-approval of the guidelines by President Muhammadu Buhari.
In an affidavit deposed to on his behalf by Ms Felicia Des Bordes, a Litigation Officer in his office, in response to a suit instituted against him by Media Rights Agenda (MRA), the Attorney-General said he could not publish the guidelines without the approval or consent of the President and that he does not have the authority to mandate the President to assent to the guidelines.
Saying that she had the authority and consent of the Attorney-General to depose to the affidavit in response to MRA’s suit alleging a breach of the provisions of the Anti-Torture Act, 2017 by the Attorney-General and seeking an order of mandamus to compel him to make the rules and regulations prescribed by the Act, Ms Des Bordes insisted that the averments contained in a 22-paragraph verifying affidavit deposed to by Mr. John Gbadamosi, a programme officer at MRA, in support of the suit were “grossly inaccurate, fallacious and without any reasonable basis”.
The Attorney-General’s representative alleged that the cases cited by MRA as instances of torture were self-inflicted injuries by the alleged victims and “can be attributed to injuries sustained when the said persons were evading arrest and refused to heed proper protocols and standards of care and prudence for their own good”.
In the suit bought on behalf of the organization by its lawyer, Mrs. Bankeye Akinwale, MRA claimed that although the Anti-Torture Act mandated the Attorney-General to make rules and regulations for the effective implementation of the Act, he has since 2017 failed to do so and that despite the enactment of the Act, there have continued to be various allegations made by journalists, and other individuals and citizens of Nigeria of being subjected to torture, inhuman or degrading treatment by officials of law enforcement agencies and other government officials and non-state actors.
However, in her counter-affidavit on behalf of the Attorney-General, Ms Des Bordes contended that contrary to MRA’s averment, the Chief Law Officer of the Federation was not in breach of the Anti-Torture Act or any legislation relating to the issue, claiming that the Department of Citizens Rights within his Office has been set up to look into cases of torture, inhumane treatment and complaints of infringement of fundamental rights from citizens and non-citizens.
Besides, she said, the Attorney-General has been performing his duties as expected under the Act by further setting up a special unit to oversee reported cases of torture and inhumane treatment by any law enforcement agencies of the government.
Ms Des Bordes averred that in further compliance with the provision of Section 10 and 11 of the Act, the Attorney-General on a national level earmarked June 21 of every year as an International Day in support of victims of torture and commemorates the Day by embarking on awareness campaigns.
In addition, she said, he also set up a National Committee Against Torture (NCAT), which she added “has been tackling several cases of torture and inhumane acts by law enforcement agencies and the general public with its offices strategically located in all geopolitical zones of Nigeria”.
According to Ms Des Bordes, in compliance with Section 12 of the Anti-Torture Act, the Attorney-General has submitted guidelines to the President, which is awaiting his approval before implementation.
She said the Attorney-General “does not have the authority to mandate the President to assent to the said guidelines” and that the application for an order of Mandamus being sought by MRA “is predicated on a carefully woven attempt to mislead the court into the erroneous impression” that the Attorney-General is deliberately withholding assent.
Ms Des Bordes contended that no part in MRA’s application shows sufficient and conclusive proof of law enforcement officers carrying out any human rights violations against persons but merely false allegations, adding that the exhibits attached to MRA’s affidavit do not “sufficiently and conclusively prove the false allegation made against the Respondent and law enforcement officers”.
She said contrary to MRA’s allegations, most of the cases and instances put forward by the organization as cases of fundamental right infringements, particularly incidence of breach of the Anti-Torture Act “were in fact self-inflicted and can be attributed to injuries sustained when the said persons were evading arrest and refused to heed proper protocols and standards of care and prudence for their own good.
Ms Des Bordes claimed that the Attorney-General “has since formulated guidelines and regulations” and that “same is awaiting the assent of the President for implementation as required from the provisions of the Anti-torture Act”.
She alleged that the claim of N5 million made by MRA against the Attorney-General as exemplary damages is indicative of the organization’s “intentions to fleece the Federal Government of tax-payers funds and make profit from the apparent distortion of information and misleading the Court”.
Ms Des Bordes described the claim for damages as “without necessary or reasonable basis or evidence”, saying it is alien to law and ultra vires to the object clause of the setting up of MRA as a non-profit organization.
She accused MRA of deliberately failing to inform the Court that there is a proviso to the fulfilment of the duty of the Attorney-General in providing guidelines for the implementation of the Act and until such proviso or condition precedent is fulfilled, the Attorney-General is constrained from completing the said process of publishing the guideline being the subject matter of the suit.
Saying that the Attorney-General cannot publish the guidelines without the assent or approval of the President, Ms Des Bordes noted that the Attorney-General, through its Department of Citizens Right, replied MRA’s Letter of Demand and pleaded for time within which to complete the process. She cited a report on MRA’s website saying the organization attested to receiving the response.
She urged the Court to dismiss MRA’s suit “in the interest of justice and fairness” and “for want of a reasonable cause”, asking it to impose punitive costs on the organization.
In the suit, MRA is seeking:
• A declaration that the failure of the Attorney-General to make rules and regulations for the effective implementation of the Anti-Torture Act, 2017 as imposed on him by Section 11 of the Act is a breach of the law;
• An order of mandamus compelling the Attorney-General to carry out the duty imposed on him by Section 11 of the Act;
• An order of mandamus compelling the Attorney-General to carry out the request contained in MRA’s letter of demand dated August 20, 2021 delivered to him on August 23, 2021, wherein MRA requested him to make the rules and regulations for the effective implementation of the Act; and
• An order directing the Attorney-General to pay to the organization the sum of N5 million as exemplary and aggravated damages for the flagrant violation of Section 11 of the Anti-Torture Act, 2017.
Further hearing in the suit has been fixed for November 22, 2022.