By Suyi Ayodele

Now that he is at home, what will the court do today when Mallam Nasir el-Rufai’s case comes up?

His bail application is slated to be moved today, but some extra-legal super powers freed him on Saturday.

Justice Rilwanu Aikawa of the Federal High Court, Kaduna, had on Tuesday, March 24, ordered that el-Rufai be remanded in the custody of his prosecutors, the Independent Corrupt Practices and Other Related Offences Commission (ICPC), and be brought to the court today, Tuesday, March 31, for his bail application to be argued.

But he is free. What is the meaning of academic exercise?

The law and the courts are a joke. If you think they are not, how else would you describe a eunuch for whom a beautiful bribe is procured?

The ICPC, which arrested el-Rufai on February 18, had kept the former Kaduna State governor in detention for 38 days, refusing him administrative bail. The Ramadan season was not enough consideration for the ICPC to let go of the former Federal Capital Territory (FCT) Minister. Protests by various groups on the arrest and subsequent detention of the opposition key figure fell on the deaf ears of the ICPC.

While in detention, the ICPC was shopping for ‘facts’, gathering ‘evidence’ and building its ‘case’ against the key opposition party leader. And when it appeared to be ready, the agency approached the court and slammed a 10-count charge bordering on alleged conversion and possession of public property as well as money laundering on el-Rufai.

Even when the defence counsel objected to the arraignment, the anti-graft agency stood its ground and Justice Aikawa allowed the arraignment just as he ordered that the accused person be remanded in ICPC custody for his bail application and any other application to be heard on the adjourned date; a mere seven days.

While waiting for the March 31 date, el-Rufai’s mother, Hajiya Umma el-Rufai, died in faraway Cairo, Egypt. Hours after the news of the old woman’s demise hit the Nigerian news media, el-Rufai’s son, Bashir el-Rufai, announced, via his X (formerly Twitter) handle, to the bewilderment of Nigerians that: “My beloved great legend of a father (@elrufai) is being released from his unlawful and illegal detention at the hands of one of the most corrupt agencies in the Federal Republic of Nigeria, that is a lame excuse of a pathetic institution.”

This is the dilemma Nigeria has found itself in again in the hands of the present administration. Feelers from the ICPC indicated that el-Rufai was released ‘temporarily’, ‘on compassion’, to attend his mother’s funeral rites which were held on Sunday, March 29.

Ever since the former Kaduna State governor was released, Nigerians from all walks of life have been asking if the ICPC has the right under our laws to make a judicial pronouncement over the bail of a detainee that was ordered remanded in its custody by a court of competent jurisdiction.

Many Nigerians have argued that due to the death of Hajiya Umma el-Rufai, it was not out of place for the ICPC to have released el-Rufai on compassionate grounds. Those in this school of thought posited further that in Africa, once one’s adversary suffers bereavement or is delivered of a new baby, all hostilities must cease! We are always encouraged to mourn with those who mourn and rejoice with those who rejoice.

But what is the position of the law in this matter? The search for answer(s) to this question has elicited various reactions from senior lawyers and public affairs analysts, who expressed worries over what is left for the court to do when the parties involved showed up in court today (Tuesday, March 31), for the bail application.

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What will be on the mind of the presiding judge, Justice Aikawa? Will My Lord ask the defence counsel to move his application, or will he ask him which application he intends to move when his client, the accused person, is already as free as a cool breeze? How do you castrate a man and still procure a wife for him?

If Justice Aikawa turned to the prosecution counsel, would he be right to ask: “Mr. Prosecutor, why are we here again when the accused person is free? Will His Lordship be right, to ask if the prosecution team did not see or notice that virtually everyone who would have been listed as primary and secondary interested parties in the matter was in the Abuja home of el-Rufai over the weekend?

Will he ask if the ICPC did not see the nominal complainant, the Kaduna State Governor, at the rite of passage for Mama el-Rufai? This is the dilemma of His Lordship and every other right-thinking Nigerian.

The human rights lawyer and Senior Advocate of Nigeria (SAN), Mr. Femi Falana, in his immediate reaction to the development, said that the release of el-Rufai by the ICPC when the ‘court is seized of the case’, amounted to illegality. The SAN posited that if the ICPC was desirous of compassion for the detainee in view of his mother’s death, all that was legally allowed was for the ICPC to approach the court via ex parte motion and get the go-ahead of the court to do that which it did.

As reported by Premium Times, Falana said “Nigerian authorities must learn to operate under the Rule of Law. There are ordinary people in custody who have lost both parents. Why are they never released in this manner to participate in the burial rites of their loved ones?” He went further to suggest that ICPC ought to have ‘rushed’ “an application to the court seeking his release to enable him to participate in the burial rites of his mother. The prosecution and the defence could exchange processes electronically. The application could then be filed on Monday, accompanied by an affidavit of urgency so that it could be held the same day.”

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Falana was not alone. For instance, Inibehe Effiong, human rights lawyer, commenting on the matter, expressed the view that: “A person who’s remanded by an order of a court cannot be released legally without recourse to the court. ICPC Nigeria, can you clarify the procedure adopted in this case? If el-Rufai’s motion for bail is slated for Tuesday, March 31, 2026, how was his release processed?” The lawyer wondered if the release is not a reflection of what the iconoclast, Fela Anikulapo Kuti, described as “government magic”, a euphemism for the untidiness in government circles.

Another notable Nigerian and veteran journalist, Richard Akinnola, on Saturday, also expressed surprise at the release of el-Rufai. Here is what the ace journalist wrote under the headline, “El-Rufai’ release by the ICPC: “Mallam Nasir El-Rufai, unfortunately lost his mother yesterday while on court remand in ICPC custody. El-Rufai’s bail application has not yet been heard. The court ordered that he be remanded in the ICPC custody pending the hearing of his bail application next week. So, under which order did the ICPC release him for his mum’s burial? It would have been a different thing if he had not been charged to court; hence, ICPC could have released him on compassionate ground, even though he was being illegally held. But since the court is seized of the matter, the agency cannot whimsically release him.”

Whichever way one views the perfidy, it appears to be more than the proverbial “government magic.” The ICPC has, by that indiscretion, shot itself where it hurts badly. The anti-graft agency has given credence to the claim by el-Rufai junior that the period his father spent in the agency’s custody was nothing but an “unlawful and illegal detention at the hands of one of the most corrupt agencies in the Federal Republic of Nigeria that is a lame excuse of a pathetic institution.”

And how pathetic can the ICPC be? Does the agency not have a legal department to guide it in this matter? If it was confused about what to do, why did it not seek wisdom from the Attorney-General of the Federation or the Office of Public Prosecution?

I think the agency is not lacking in terms of quality personnel to advise it on a sensitive matter of this nature. The problem, methinks, is endemic with the government which acts before it thinks. This is why Nigeria has remained the joke of the entire globe. It is only in Nigeria that accused persons are arrested first before the prosecutor begins to look for ‘evidence’ to nail them. Nothing is tidy, nothing appears decent. When government agencies begin to act on impulse, we cannot but have outrageous decisions like the one made by ICPC on el-Rufai.

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And the fact that all the hawks that have been asking for the head of el-Rufai on a platter were in his Abuja home on Saturday and Sunday on condolence visits goes to show that the ICPC and el-Rufai matter is another theatre of the absurd. Former Governor of Rivers State, Rotimi Amaechi, captures the silliness of the action, when, during his visit to el-Rufai, he said: “To show that the government knows what they are doing, they just released him (el-Rufai) without a court order.” What a joke!

Unfortunately, that is logical. If ICPC is that compassionate, why did it not release el-Rufai, a devoted Muslim, during the month of Ramadan, so that he could observe the solemn period in his home? After all, while the Ramadan lasted, the agency was still on the voyage of discovery to ascertain what the former governor allegedly stole or did not steal while in office. Which would have been more honourable and dignifying between allowing el-Rufai to serve his God as commanded by his belief, in peace during Ramadan, or to go home and bury his dead? How many days of ‘compassionate leave’ did the ICPC grant him?

The person that is in the most difficult situation in this matter is His Lordship, Justice Aikawa, whose order has been bastardised by an agency of government. I wonder how the judge felt when he read the news that the ICPC had taken over his court! Now that the parties have returned to the desecrated hallowed chamber, which of the nine theories of judicial behaviour will Justice Aikawa be putting on as the counsel in the matter announce their appearances today, before him?

Richard Posner, the retired United States circuit judge, in his book, “How Judges Think”, said, under the sub-topic, Nine Theories of Judicial Behavior, that: “There are many positive (that is, descriptive as distinct from normative) theories of judicial behavior. Their primary focus is, as one would expect, on explaining judges’ decisions. The theories are the attitudinal, the strategic, the sociological, the psychological, the economic, the organizational, the pragmatic, the phenomenological, and of course, what I am calling the legalist theory.” (Pg. 19)

All eyes are on Justice Aikawa to know if, today, he would apply the attitudinal theory which allows him to adjudicate on this matter based on the political preferences of the prosecution team that appears to be fighting a proxy battle on behalf of the government. Or, if His Lordship will be pragmatic enough to know that whatever decision he takes on this highly politically-motivated trial, should be based “on consequences, rather than on deduction from premises in the manner of syllogism”, as Posner projects. (Pg. 40)

Whichever way the pendulum of justice swings, my thoughts are with His Lordship, Justice Aikawa. I pray he knows that the ICPC has already taken the wind out of his judicial sail. Whatever the Nobel Laureate, Professor Wole Soyinka, saw in 1973, when he wrote his second novel, Season of Anomy, has paled into insignificance with the prevalent endemic perfidy in our Nigeria of today. Now is the real “Season of Anomy” and Adebayo Williams’ “The Year of the Locusts” rolled into one. We are not doomed yet. Are we?