The Socio-Economic Rights and Accountability Project and Adeyinka Olumide-Fusika (SAN), the lawyer to the presidential candidate of the African Action Congress, Omoyele Sowore, have called on the Department of State Services to withdraw the criminal charges against the activist or transfer the prosecution to the Attorney-General of the Federation.
SERAP and Olumide-Fusika made the demands on Monday while reacting to the DSS announcement that it would suspend the prosecution of the activist until after the 2027 presidential election.
The Director-General of the DSS, Tosin Ajayi, had announced in a statement on Sunday that the agency would suspend the prosecution of Sowore, who was accused of describing President Bola Tinubu as a criminal, until after the 2027 election.
SERAP, in a statement signed by its Deputy Director, Kolawole Oluwadare, said the reported decision to adjourn the case did not address what it described as the fundamental problem with the prosecution.
The organisation urged Tinubu and the DSS to immediately withdraw all charges against Sowore and end what it described as the continuing harassment and intimidation of the activist over the exercise of his human rights.
SERAP said, “The DSS cannot selectively pause a politically sensitive prosecution for electoral convenience while leaving the bogus charges hanging over Sowore.
“The appropriate response is to withdraw the charges altogether.”
It said the right to participate in public affairs and criticise government officials should not depend on the electoral calendar or the discretion of security agencies.
According to SERAP, the prosecution of Sowore over his social media comments concerning Tinubu amounted to an unacceptable use of criminal law and judicial processes to punish, intimidate or silence a prominent critic and political opponent.
It said public officials, including the President, were subject to scrutiny and criticism in a democratic society, adding that offensive, harsh or politically inconvenient expressions did not, by themselves, justify criminal prosecution.
SERAP also warned the Federal Government against using the Cybercrimes Act, criminal defamation provisions or other laws to suppress peaceful criticism, particularly as Nigeria approaches the 2027 general elections.
It said suspending the Sowore case until after the election was not enough, insisting that the charges should be withdrawn immediately.
“The continued prosecution of Sowore has a chilling effect far beyond his individual case. It sends a dangerous message to journalists, bloggers, activists, political opponents and millions of Nigerians that criticism of government officials may attract the attention of the security agencies and criminal prosecution,” SERAP said.
It called on the Federal Government to comply fully with the 2022 judgment of the ECOWAS Court of Justice, which it said declared the former Section 24 of the Cybercrime Act arbitrary, vague and repressive and ordered Nigeria to bring its cybercrime legislation into conformity with its human rights obligations.
The organisation said the government could not invoke cybercrime legislation to criminalise peaceful expression or suppress legitimate criticism of public officials.
It urged the President to direct the AGF and the DSS to withdraw all charges against Sowore and direct security and law enforcement agencies to stop using criminal and judicial processes to harass, intimidate or silence journalists, activists and political opponents.
SERAP also called for a review of criminal prosecutions and pending cases against journalists, activists and political opponents arising principally from their peaceful exercise of freedom of expression, with a view to withdrawing charges it said were inconsistent with Nigeria’s constitutional and international human rights obligations.
On his part, Olumide-Fusika said the reason reportedly given by the DSS for seeking a pause in the proceedings to enable Sowore to participate fully in the forthcoming election without interference was valid and should be commended.
He, however, said the development provided an opportunity for the DSS to remove any perception that it was interfering in Nigeria’s political process by either withdrawing the case or transferring its prosecution to the AGF.
“Given this understanding, I respectfully suggest two options for the DSS: either instruct their counsel to withdraw the case entirely or pass it over to the Office of the Honourable Attorney-General of the Federation to continue prosecuting,” he said.
The SAN said the DSS was an intelligence and internal security agency and should not be perceived as taking sides in political contests.
“The DSS is an intelligence agency tasked with internal security, not a political party or organisation. It should not appear partisan or show bias towards any government or politician.
“When its actions suggest otherwise, it undermines the organisation’s credibility and the public’s trust,” he said.
Olumide-Fusika also criticised the manner in which the DSS announced the suspension, saying the defence team learnt about the development through media reports rather than from the prosecution counsel.
He described the procedure as strange, noting that lawyers handling a pending case were expected to communicate with each other where there was a need to seek an adjournment.
“I have been practising law for nearly 40 years, and I know that if there is a court date and there is a reason to believe you might not be able to attend, or if you seek an adjournment, you must inform the defence lawyer,” he said.
According to him, any legitimate reason for seeking an adjournment should be communicated counsel-to-counsel and subsequently presented to the court.
“Any legitimate reason can be communicated in advance, but this is supposed to be done by counsel-to-counsel, not through a press statement by clients,” he added.
The lawyer further faulted the reported position that the trial would resume after the 2027 presidential election, saying it created the wrong impression that the DSS could determine the timing of court proceedings.
“It gives the impression that the DSS controls the court, that it determines when the court sits and when the court does not sit, and that the trial’s progress depends on their agenda,” he said.
Olumide-Fusika stressed that once a matter was before the court, decisions concerning its proceedings should be left to the judge.
“Once you are in court, matters should be left to the court to decide. If an adjournment is needed, it should be requested directly in court, not through press statements or directives,” he said.
He also warned that poorly worded statements by government institutions could damage the reputation of Nigeria’s judiciary and other state institutions, particularly before the international community.
The lawyer said the DSS’s latest position had caused him to reconsider the circumstances surrounding the earlier proceedings in the case, particularly the insistence that the trial continue during the court’s vacation.
He said it appeared there had been an attempt to conclude the case before the Independent National Electoral Commission announced the timetable for the 2027 elections.
“I didn’t fully grasp all these considerations at first, but then I understood they wanted everything completed before INEC issued the election timetable,” he said.
The SAN, however, stressed that he was not necessarily attributing that motive to the authorities.
He said the DSS’s current explanation for pausing the proceedings could instead portray the agency as an institution willing to avoid interfering with Sowore’s political activities ahead of the 2027 election.
Both SERAP and Olumide-Fusika urged the authorities to ensure that Sowore could participate fully and freely in political and public life without harassment, intimidation, arbitrary arrest or reprisals, stressing the need to protect freedom of expression, political participation, media freedom, the rule of law and judicial independence ahead of the 2027 general elections.