Sylvester Udemezue

I will start by repeating my earlier statement, in respect of which I think the brief comments following after are necessary, to further illustrate the statement, and disabuse our minds of all doubts as to what the true intentions of the writer is, and the reason behind the same:

If any lawyer believes (without any doubt), and acts on, a mere allegation in the news or social media (which is yet obviously unconfirmed by any documents and unsubstantiated before any competent court of law), then that lawyer is hardly fit to be called by the name “Lawyer.” He simply should hand back all his law certificates to the institutions that awarded them, and move back to his village to join in the farming business. My humble opinion.

The Canons of Legal Ethics, approved by the Canadian Bar Association, states in its preamble that “the lawyer is more than a mere citizen. He is a minister of justice, … and a member of an ancient, honourable and learned profession.” Lawyers, by the very special nature of their calling, have a responsibility to educate the public on the core demands of “law of evidence,” “due process,” and “rule of law.” Specifically, the lawyer has a duty to accentuate the difference between a mere “accusation,” a “speculation,” and verified information or statement. Suspicion alone, however strong or deep, it is said, is not sufficient to render an “accused” guilty. It is unfortunate to imagine that a qualified lawyer, on reading a story on a newsprint or on the social media, especially such that bothers on criminal allegations against another or other persons, would begin (relying solely on that story) to form opinions and draw definite conclusions that could only be validly and legally drawn from proven facts and legally established data.

If lawyers believe everything they read or hear in the news media, without asking for proof, what then do we expect the ordinary non-lawyer to do? This is my point. When issues in the news or media have to do with law or the legal, and especially touching on allegation(s) laced with criminal savor, unverified facts, mere stories, and unsubstantiated claims must be treated with absolute caution. A lawyer ought to handle with utmost circumscription any information in his possession in respect of which there are yet no sufficient bases. It would amount to a deliberate abdication of his responsibility for the lawyer to begin to propagate or disseminate such information in a manner that presents the same as already established. It’s for this reason that THOMAS PAINE once wrote (about America) in his famous book, COMMON SENSE: “…that the world may know, that so far as we approve of monarchy, that in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.” Like America, Nigeria is a constitutional democracy founded on respect for the rule of law. Section 1 (1) of the 1999 Constitution provides that “This Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.” In Military Governor of Lagos State vs. Ojukwu (2001) FWLR (Part 50) 1779 at 1802, para B-E, Obaseki, JSC, stated that “the Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. Nigeria, being one of the countries in the world, … which profess loudly to follow the rule of law, gives no room for the rule of self help by force to operate.” (per Obaseki JSC in page 1799, para. C – E). It is therefore obvious that the rule of law is not a vehicle by which private individuals, governments or government agencies can wield and abuse their powers; on the contrary, rule of law establishes principles that constrain the power of private INDIVIDUALS, governments and public bodies, obliging each to conduct himself/herself/itself according to a series of prescribed and publicly known rules.

Besides, the Nigerian (criminal) legal system is accusatorial and adversarial, and not INQUISITORIAL in nature. Ours is a system in which the prosecutor or accuser must necessarily establish the guilt of the accused person by credible evidence independently and freely secured, and not on pages of newspapers or on social media or by mere RUMOUR. An accused person is thus presumed innocent unless and until his guilt is established beyond reasonable doubt before a court of law in line with the requirements of section 36 (5) of the Constitution. Hence, section 35 (1) (a) provides that every person shall be entitled to his personal liberty and RIGHTS and no person shall be deprived of such liberty EXCEPT in execution of the sentence or order of a court in respect of a CRIMINAL offence OF WHICH HE HAS BEEN FOUND GUILTY, and in accordance with a procedure permitted by law.” SIR WILLIAMS BLACKSTONE`s dictum that “it is better for TEN wrongdoers to go scot-free than for ONE innocent man to suffer unjustly” is appropriate in this circumstance. One major lesson from the Fourth Amendment to the Constitution of the USA is that it is better that the guilty sometimes go free than the citizens be subject to easy arrest.

Back here, to borrow from the words the famous English writer, journalist, DANIEL DEFOE (1659-1731), it is sad and shocking that, OFTENTIMES, WE HEAR MUCH OF PEOPLE’S CALLING OUT TO PUNISH THE GUILTY; YET VERY FEW ARE CONCERNED TO CLEAR THE INNOCENT. This contravenes the very system we’ve accepted for ourselves. The accusatorial/adversarial criminal justice system is carefully designed to ensure fairness and protection of the accused, lest people be wrongly accused or convicted; liberty and freedom are paramount and any reasons for taking them away must be compelling and apparent even in the face of unmitigated advocacy for the accused. The major object of the adversarial processes is, precisely, to give every bit of benefit of the doubt to any person or persons suspected of or accused but not yet convicted. It is only in this way that we can be sure that only the guilty is punished. As JUSTICE BENJAMIN CARDOZO said in Snyder v. Massachusetts, 291 U.S. 97, 122 (1934), “justice, though due to the accuser and the society, is due the accused also. The concept of fairness cannot be strained till it is narrowed down to a filament; we are to keep our balance true.”

Writing on “FREEDOM AND THE CONSTITUTION,” JUSTICE WILLIAMS ORVILLE DOUGLAS once declared thus: “the function of the prosecutor under the Constitution is not to tack as many skins of victims as possible against the wall; his function is to vindicate the rights of the people as expressed in the laws and to give those accused of crime a fair trial.” Mr Justice SUTHERLAND, while delivering the opinion of the Court in Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, neatly illuminated the position and responsibility of the State and public prosecutors in the criminal justice system, when he declared thus:

“The … States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one”

It is therefore reasonable to expect that fairness, even-handedness and above all respect for rule of law would characterize the behavior and standards of all of lawyers and persons involved in the business of law enforcement, public prosecution, arrest, searches, investigation or defence of persons accused of crimes. See the judgment of Hon Justice IBRAHIM MOHAMMED MUSA SAULAWA, delivered on January 4, 2007, in APPEAL NO.CA/PH/161/99 in the case of WHYTE V KWANDE. In all countries of the world which subscribe to and operate under the rule of law, all actions of both private and public persons are always adapted to the laws of the land and not the reverse. In Nigeria, we ought to allow this time-honoured principle to sink well into our heads and hearts. The dictum of his Lordship, PIUS OLAYIWOLA ADEREMI, JSC, in the famous case of CHIBUIKE ROTIMI AMAECHI V. INEC & 2 Ors. (2008) 1 SCNJ 1; (2008) 5 NWLR (Pt. 1080) 227) gives a clear grasp of this fact.

Further, Rule 1 of the Rules of Professional Conduct for Legal Practitioners (RPC), 2007 imposes on every Legal Practitioner in Nigeria a perpetual duty “to uphold and observe the rule of law,” and to “promote and foster the cause of justice.” Also, in Rule 15, RPC, a lawyer is barred from asserting any position when he knows or ought reasonably to know that such “would serve merely to harass or maliciously injure another.” He must also not make a false statement “OF LAW OR FACT.” Generally, the lawyer is not expected to “aid or participate in conduct that he believes to be unlawful even though there’s some support for an argument that the conduct is legal.”

How then, should a lawyer approach stories and speculations in the media, one may ask? In answer, may I humbly refer us to a statement made by SIR THOMAS JEFFERSON. In his “LETTER TO JOHN NORVELL, 14 June 1807,” published in the WORKS OF THOMAS JEFFERSON 10:417-17, Sir Jefferson has this to say about believing without doubts stories in newspapers:

“To your request of my opinion of the manner in which a newspaper should be conducted, so as to be most useful, I should answer, ‘by restraining it to true facts and sound principles only.’ Yet, I fear such a paper would find few subscribers. It is a melancholy truth, that a suppression of the press could not more completely deprive the nation of its benefits, than is done by its abandoned prostitution to falsehood. Nothing can now be believed which is seen in a newspaper. Truth itself becomes suspicious by being put into that polluted vehicle. The real extent of this state of misinformation is known only to those who are in situations to confront facts within their knowledge with the lies of the day. I really look with commiseration over the great body of my fellow citizens, who, reading newspapers, live & die in the belief, that they have known something of what has been passing in the world in their time; whereas the accounts they have read in newspapers are just as true a history of any other period of the world as of the present, except that the real names of the day are affixed to their fables. General facts may indeed be collected from them, such as that Europe is now at war, that Bonaparte has been a successful warrior, that he has subjected a great portion of Europe to his will, &c., &c.; but no details can be relied on. I will add, that the man who never looks into a newspaper is better informed than he who reads them; inasmuch as he who knows nothing is nearer to truth than he whose mind is filled with falsehoods & errors. He who reads nothing will still learn the great facts, and the details are all false.”

DAVID D. FLOWERS answered the question thus:

“Mis-information is rampant in this great age of mass-information. While we have more access to learning than ever before in the history of the world, we’re actually getting dumber it seems. The amount of misinformation at everyone’s fingertips has lured us into a false sense of knowing. Whether it be information about science, politics, or theology, our society is suffering from an inability to research, process, filter, and apply. At the same time, we seem entirely oblivious to the zeitgeist (spirit of the age) that is nihilistic and libertine, making everything relative and subjective. And Satan himself rushes to blur our vision, stirring up the dust of confusion.”

Honestly, I think much of the challenges some Legal Practitioners in Nigeria encounter in this respect have more to do with their difficulty in being able to draw a clear line being between their duties as lawyers in society and their responsibilities to their clients or to political, social, religious or ethnic organisations or other interest groups to which they belong or whose interests they represent. Some Legal Practitioners easily overlook the fact that, irrespective of their political leanings or cultural, ethnic, religious or social predilections, they have a primary responsibility as lawyers to uphold the truth, promote the rule of law, and desist from rumor-mongering or propagation of propaganda. This duty is overriding and far supplants the lawyer`s duty to his clients as well as his desire to protect or advance the any provincial interests he represents. It could therefore be concluded that promoting the truth, justice, due process and rule of law, is the most obvious and fundamental role for lawyers in a democracy, though this duty is not necessarily such a simple one. OKECHUKWU OKO has given an eye-opening account of how crucial, yet difficult, this role is in a fragile democracy such as Nigeria. In the introduction to his essay, “Lawyers in Fragile Democracies and the Challenges of Democratic Consolidation: The Nigerian Experience,” he succinctly describes it in the following words:

“Because of their status, special skills, and training, lawyers have the opportunity and indeed the obligation to help attain the nation’s political imperative of consolidating democracy. Unlike their colleagues in stable democracies, however, African lawyers face a phalanx of harsh realities and pragmatic constraints that severely limit their ability to deepen democracy, or even perform their traditional functions. Africa’s distinctive problems include political instability, social disequilibrium, insecurity, corruption, ineffective and inefficient public institutions, and a lack of a democratic culture. (see Okechukwu OKO, in 77 FORDHAM L. REV. 1295, 1295-96 (2009)).

Worthy of mention, at this juncture, is Mahatma Gandhi`s shining example of what the role of lawyer should be in society. On page 4 of the book, THE LAW & THE LAWYERS (by M.K Gandhi), it is reported thus about Mahatma Gandhi`s love of truth and justice:

“If there was one characteristic more than another that stamped Gandhi as a man amongst men, it was his extraordinary love of truth. The Mahatma was an ardent and inveterate votary of truth. Truth, like nonviolence, was the first article of his faith and the last article of his creed. It was therefore no wonder that in his practice of the law, he maintained the highest traditions of the profession and did not swerve by a hair’s breadth from the path of rectitude and integrity. He was always valiant for truth, bold in asserting it in scorn of all consequence, and never sold the truth to serve the interests of his clients. He never forgot “that if he was the advocate of an individual, and retained and remunerated, often inadequately, for his valuable services, yet he had a prior and perpetual retainer on behalf of truth and justice.” It may truly be said of him that he practiced law without compromising truth.”

As affirmed by Mr. Justice Crampton in R. v. O’Connell et al. (1844), 7 I.L.R. 261 at 313, he (the lawyer) “will ever bear in mind that if he be the Advocate of an individual, and retained and remunerated (often inadequately) for his valuable services, yet he has prior and perpetual retainer on behalf of truth and justice; and there is no Crown or other license which in any case, or for any party or purpose, can discharge him from that primary and paramount retainer.” Likewise, in an article titled, “Role of Lawyer in the Society: A Critical Analysis,” and published in The Clarion: A Multidisciplinary International Journal, Volume I, Number I, February (2012) pp. 148-52, the author, Balin Hazarika, has this to add about the proper role of lawyers in a democratic society:

“It is possible to have different views of what a lawyer does. Some may say that a lawyer is a business person, not unlike the barber, the doctor or the shop owner, providing a service to paying customers. Others will see a more public-abiding role for the lawyer, providing a service to paying clients but also maintaining an eye on the public interest, justice, and fairness of society. This difference in view will account for differing opinions about what a lawyer should do in a morally difficult position. In democratic societies, lawyers surely fill an important role that no other professional fills: the lawyer is the guardian of the rule of law, the ideal that all people stand equally before the law and neither expect nor receive special treatment from it. In emerging democracies, this role is especially important for lawyers, who have the potential to become the great levelers between the powerful and the less so. A lawyer’s function therefore lays on him a variety of legal and moral obligations toward:…the public for whom the existence of a free and independent profession itself is an essential means of safeguarding human rights in face of the power of the state and other interests in society.”

It is for the above reasons that this writer is of the firm view that “if any lawyer believes and acts on a mere rumour or allegation in the news or social media without any efforts to verify the truth or ascertain the accuracy of such, by independent, disinterested evidence or methods, then such lawyer is hardly worthy of that name, “Lawyer.” He simply should hand back all his law certificates to the awarding institutions, and take to another occupation or profession, as he is only a round peg in a square hole for as long as he continues to belong to the legal profession.
Respectfully,

Sylvester C. Udemezue
(mrudems@yahoo.com)

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