Falana tells Attorney General Malami that he can be removed from office if Sowore remains in jail

Falana is Sowore's lead counsel.

Following the announcement that Malami will henceforth be in charge of the federal government's case against Sowore, who was arrested over a planned protest in August, Falana wrote the AGF, demanding the release of the Sahara Reporters Publisher.

In his response, Malami's office said it could not just ask DSS to set Sowore free without due process and the rule of law.

"With respect, Mr. Malami has not taken cognizance of the legal implications of taking over a pending criminal case in exercise of the powers of an Attorney-General under the common law and the Constitution,” Falana wrote in a statement.

He added that “in the case of State v Ilori (1983) JELR 51804 (SC) the Supreme Court dwelt in extenso on the powers of an Attorney-General under section 193 of the 1979 Constitution which is in pari materia with section 174 of the 1999 Constitution. In that case Eso JSC of blessed memory said inter alia:

“An Attorney-General, who proposes to act under his powers to institute and undertake, take over and continue or discontinue criminal proceed­ings would need to bear in mind public interest, interests of justice and the need to prevent abuse of legal process before he exercises his powers, since if he ignores any of these, he would run the risk of exposing himself to removal or reassignment by his appointor, and above all – and this is most important – also to public opinion.

“‘The powers of the Attorney-General under s. 191, (and notwithstanding sub-section (3) thereof) are still a matter for his quasi-judicial discretion and one within his complete province. He still possesses the constitutional powers in full and the responsibility for any decision thereupon rests solely on him."

The human rights lawyer stated that his call for Sowore's release became necessary after two lawyers from his team who visited the DSS to effect his client's freedom, were told to take their request to Malami. 

Since his arrest, Sowore has been standing trial for alleged treason, insulting the president, money laundering and heating up the polity.

DSS operatives stormed the federal high court in Abuja to re-arrest Sowore on December 6, 2019. The move sparked outrage from civil society groups in Nigeria, the social media space, the US political class and the international community.