Why Kanu’s request for access to medical records should be rejected – DSS

….as court fixes July 20 for judgement

The Department of State Services, DSS, has asked the Federal High Court sitting in Abuja to dismiss an application the detained leader of the Indigenous People of Biafra, IPOB, Nnamdi Kanu, filed to be granted access to his medical records.

Kanu, in the suit he filed through his team of lawyers led by Prof. Mike Ozekhome, SAN, equally applied for an order of mandamus to compel the security agency to allow him to have unhindered access to his private physicians.

However, when the matter came up for hearing on Tuesday, counsel to the DSS, Mr. A. M. Danlami, challenged the jurisdiction of the court to grant the request.

Danlami told the court that the security agency had earlier filed both a preliminary objection and a counter-affidavit to query the legal competence of Kanu’s suit.

Insisting that Kanu has been receiving adequate medical attention in custody, the counsel to the DSS said he attached a feeding schedule that reflected the IPOB leader’s demands for his choice of food.

The DSS lawyer further attached an Exhibit he said would show the court that the detained Applicant was “dutifully and clinically on his routine medication.”

“We, therefore, urge this honourable court to dismiss this suit in the interest of justice and national security,” Danlami added.

Meanwhile, arguing the suit before the court, Prof. Ozekhome, SAN, told the court that the health of his client has deteriorated badly, accusing the DSS of refusing to allow him to get an independent medical examination.

He told the court that a specialist doctor that was engaged by the security agency had warned that the IPOB could die if he was not allowed to have access to a quality health care.

“All we are saying is, let this young man not die. They told us that they took his medical report to South Africa. But till date, we have not seen anything.

“Now they are talking about conducting ear surgery on him. The Supreme Court has repeatedly said that a man should be alive to be able to stand trial.

“This case has taken international colouration and this court can save this country this opprobrium by ordering them to release his medical records.

“We have equally attached certified true copy of the judgement of a high court in Umuahia which awarded N500million damages for the extra-ordinary rendition of the Applicant from Kenya.

“We humbly seek my lords intervention in this matter. We are seeking solace for this young man who has been beaten blue and black, with no one to stand up for him apart from this court.

“His doctor has gone there two times but they refused him entry. But here they are, asking for reliefs from this court when they have not obeyed a subsisting order of this same court.

“They cannot come before this temple of justice with soiled hands to seek equitable remedy.

“More over, my learned friend is missing the entire point. We are not here on the issue of whether they are feeding him or not.

“All we are saying is, let the treatment they claim that he is receiving, be subjected to a review by an independent physician of his choice,” Ozekhome, SAN, added.

After she had listened to both sides, Justice Binta Nyako adjourned the matter till July 20 for judgement.

Specifically, Kanu, had in the suit marked FHC/ABJ/CS/ 2341/2022, said he would need his doctors to conduct an independent examination to ascertain his actual state of health.

He is praying the court for an order, granting him leave to, “apply for judicial review in the form of an order of Mandamus, compelling the Respondents to allow the Applicant unhindered access to his medical doctors to enable them conduct an independent examination of his present detoriorating health condition, as earlier ordered by the Federal High Court, Abuja, coram, Hon. Justice B.F.M. Nyako, on the 21st day of October, 2021; and as required by the express provisions of section 7 of the Anti-Torture Act, 2017”.

As well as, “an order of this Honourable Court granting leave to the Applicant to apply for judicial review in the form of an order of Mandamus, compelling the Respondents to avail the Applicant with all his medical records, from the 29th day of June, 2021, till date”.

Kanu listed some of the records he would require from the DSS, to include; his admission records, medical and clinical notes, nursing notes, observation charts and documentation during treatment or stay-in-hospital, laboratory test results, pharmaceutical records, radiological scans, images and reports, blood transfusion records, physiotherapy and rehabilitative treatment records, clinical findings, as well as diagnosis and treatment prescribed records.

On grounds upon which he filed the application, Kanu, noted that trial Justice Nyako had on October 21, 2021, ordered that he should be allowed access to three persons of his choice, including his medical doctors.

Kanu argued that section 7 of the Anti-Torture Act, 2017, provided that a person arrested, detained or undergoing, custodial investigation, shall have the right to demand a physical and psychological examination by an independent and competent doctor of his own choice after interrogation, which shall be conducted outside the influence of the Police or security forces.

“The Respondents have repeatedly denied the Applicant access to medical doctors of his choice to independently examine him, contrary to the order of the court made on the 21st October, 2021; and the express provisions of Section 7 of the Anti-Torture Act, 2017”, he added.

In a verifying affidavit that was deposed to by one Chimmuanya Emenari, Kanu told the court that prior to the time he was arrested abducted in Kenya and extra-ordinarily rendered back to Nigeria, he visited a Specialist Cardiologist every week for medical examination and treatment.

“Medical Reports containing the medical history of the Applicant as was issued by medical specialists managing the Applicant before his abduction in Kenya and extraordinary rendition to Nigeria are hereby attached and variously marked as Exhibits MNK 3, MNK 4 and MNK 5.

“That notwithstanding the fact that the Applicant has been discharged by the appellate court and his further detention prohibited, the Applicant is still being held in solitary confinement in the custody of the Respondents, where he is exposed to daily mental and psychological torture and degradation of his human person”.

Kanu alleged that upon his “abduction” in Kenya, he was subjected to various forms of brutal torture and inhuman treatment and degradation, all of which worsened his health condition, pursuant to which he suffered a mild cardiac arrest before he was “smuggled back into Nigeria”.

“The Applicant’s health condition has continued to take a downward spiral since then.

“That various medical personnel that attended to the Applicant whilst in custody, had repeatedly informed him that they could not ascertain the reason for the depletion of potassium in the Applicant’s blood.

“That on various occasions, the medical personnel brought by the Respondents took the Applicant’s blood sample and allegedly transported same to South Africa for screening and up till the present, there is no end in sight for their trial-and-error medicare.

“That all medical experts that have so far attended to this complex health situation of the Applicant failed to medically fathom the explanation for the continued failure of various treatments so far given to the Applicant, hence their inquiries as to whether the Applicant may have been injected with a dangerous substance by those that abducted him in Kenya before being forcibly smuggled into Nigeria.

“That the medical personnel attending to the Applicant in the custody of the Respondents are oblivious of the cause of the Applicant’s health condition and are basically using the Applicant as a guinea pig while carrying out a trial-and-error exercise, as they keep changing his drugs and increasing the dosage without any improvement whatsoever in his health condition. Attached and marked as Exhibit MNK 6 is a copy of the Applicant’s medical report issued by the Respondents.

“That the full medical history of the Applicant as contained in his Medical file with the detaining authority were deliberately suppressed, as the facts of the speedy depletion in his potassium content was clearly deleted from the medical report which the Respondents issued to the Applicant.

“That the Applicant’s doctor- Dr. CFine Okorochukwu, who had gone to visit him on the 29th August, 2022, and 1st and 15th September, 2022, respectively, was denied access to him, by the Respondents, in flagrant disregard to the Order of the trial court, made on the 21st day of October, 2021, which order directed that the Applicant should be allowed access to three persons of his choice, which persons includes his doctors. Attached and marked as Exhibit MNK8 are copies of the letters forwarding the name of the Doctor to the Respondents.

“That following the continued refusal of the Respondents to allow the Applicant access to his medical doctor, on the 12th of December, 2022, the Applicant through his lead Counsel- Chief Mike Ozekhome, SAN – wrote to the Respondents and demanded that the Applicant be given unhindered access to his own medical doctors; and further, for the Applicant’s comprehensive medical records. A copy of the said letter is hereby attached and marked as Exhibit MNK9.

“That the Respondents roundly ignored the Applicant’s request to be availed of his medical records, and access to his doctors,” the deponent averred.

It will be recalled that the Court of Appeal in Abuja had on October 13, 2022, quashed a 15-count terrorism charge the Federal Government entered against Kanu, even as it discharged him.

However, following an appeal FG lodged before the Supreme Court, the appellate court, on October 28, 2022, granted a stay of execution of its judgement to await the decision of the apex court.