On the 21st day of March 2017, the Hon. Justice Gabriel Kolawole of the Federal High Court, Abuja Judicial Division, suspended the trial of one Nicholas Ashinze and others over what he termed false media statements by the Economic and Financial Crimes Commission (EFCC).
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The suspension of the trial of the accused persons followed a protest by their Counsel over a press statement by the EFCC which claimed that the accused persons diverted the sum of N36 billion public funds and not N3 billion in the charge sheet of the commission or N5 billion as claimed by a witness. Justice Kolawole said it was unfair for the EFCC to feed the public with falsehood while at the same time in the court of trial.
He ordered the EFCC to withdraw the offending publication. To the ordinary observer, the Hon. Justice Kolawole might have overreacted to the false publication by the EFCC but to the discerning observer, the judge must have exhausted the limits of tolerance in coming to the conclusion that the commission must bow to the rule of law and due process and respect the rights of accused persons in the judicial process. There are fundamental issues embedded in the umbrage of the judge. The EFCC is not a newspaper, radio or television house.
The EFCC is a specialised commission created by an Act of the National Assembly with the mandate to combat financial and economic crimes. The commission is also empowered to prevent, investigate, prosecute and penalise economic and financial crimes. It is also charged with the responsibility of enforcing the provisions of other laws and regulations relating to economic and financial crimes, including the Economic and Financial Crimes commission Establishment Act (2004), the Money Laundering Act 1995, the Money Laundering (Prohibition) Act, 2004, the Advance Fee Fraud and Other Fraud Related Offences Act 1995, the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994, the Banks and other Financial Institutions Act, 1991 and Miscellaneous Offences Act.
Under the Act, the EFCC is not a media group or organisation and cannot behave like a media organisation. Rather than allow the media to report court proceedings, it has proceeded to report court proceedings and has been transmitting such to media organisations and some media groups have been using such statements without verification. But those in charge of EFCC understand the psychology of crime and the “peculiar” Nigerian way of assessing crime and criminality.
The EFCC understands that if it releases a humongous or mind boggling figure of crime and criminality against an individual or group of individuals and or organisation, no matter what happens in court or tribunal the Nigerian people would have taken a position.
The commission understands the mood of the nation and the anger of the Nigerian people against some of the people that stole and or appropriated or misappropriated the commonwealth of the Nigerian people and its press statements and press releases target these segments of the Nigerian people.
In the short run, the commission would name and shame some of the people that have harmed the country and maybe assist in lowering the incidents of corruption in the country. However, fundamental jurisprudential and rule of law issues are involved in what the EFCC and similar groups are doing in relation to the rights of suspects in the criminal justice system.
By releasing preliminary reports and sometimes leaking its investigation activities to the media, the EFCC in the main has foreclosed the possibility of fair hearing and fair trial of suspects and accused persons. Sometimes, the guilt or otherwise of suspects who have not been charged to court are determined on the pages of newspaper making the actual trial of the said suspects a mere charade. The EFCC by its posture and attitude towards investigation and prosecution harm the judicial process, bring it to disrepute and add no value to the integrity of the adjudicatory process.
The EFCC also harms the power of the Nigerian State to bring the full weight of the law to bear on those that harm the commonwealth of the Nigerian people through poor investigation and prosecution. Those that drafted the EFCC Act equipped the commission with investiga tion and prosecutorial powers and made it independent of the Nigerian Police Force or other investigation agencies. The sense is to domicile key issues in investigation and prosecution within the same commission to avoid leakage, shoddy investigation and shoddy prosecution.
Why then does the EFCC prefer to conduct trials in the media rather than in the court room? What benefit do they intend to derive from such conduct other than scandalising suspects that have not been given their due process rights. Nigeria and Nigerians must not live and operate outside the fundamental law of the land.
The law and the constitution have specified the rights of suspects and accused persons in the criminal justice system. Section 36(4) of the Constitution of the Federal Republic of Nigeria, 1999(as amended) entrenches in our constitutional framework the rights of accused persons in the criminal justice system. “If a person is charged with a criminal offence, the right of such a person as entrenched in section 36(4)(unless the charge is withdrawn) is a right to (a)fair hearing, (b)within a reasonable time, (c)by a Court or Tribunal, constituted in such a manner as to secure its independence and impartiality”.
As early as 1986 in the case of Garba v University of Maiduguri (1986)1 NWLR (Part 18)550, the Supreme Court of Nigeria gave guidance on what fair hearing implies. The court stated unequivocally that fair hearing implies that (a) a person knows what allegation against him are, (b) what evidence has been given in support of such allegation, (c) what statements have been made concerning those allegations, (d) such person has a fair opportunity to correct and contradict such evidence and (e) the body investigating the charge against such person must not receive evidence behind his back.
The court made it clear that “if a person is accused of committing or having committed a criminal offence his civil obligation not to commit the offence is called into question.”
The court also underlined the fact that “assumption of jurisdiction to try offences where there is none is a denial of the right of the person accused of committing that offence to fair hearing.” Conducting media trial of suspects is assuming jurisdiction to try offences that should be tried by the courts and making a determination as to the guilt or otherwise of accused persons which is the exclusive preserve of courts of law.
The most heinous aspect of media trial is that sometimes, the commission abandons such cases without charging the suspects to court but by then, the matter has finished trending in the social media and the conventional media and the suspect has been tried and either found guilty or released by the media. Trial by the courts becomes an exercise in futility as a pronouncement of not guilty by the courts in respect of an accused person only relives the person of the possibility of going to prison but the person cannot retrieve, recall or clean up his or her image that has been destroyed in the course of media trial. It must be emphasised that media trial is completely different from honest reportage of court proceedings or investigating the veracity or otherwise of allegations against suspects or accused persons.
In a true democracy, the media must be free to report truthfully, objectively and without unnecessary inhibitions. “Freedom of the press being an integral part of the freedom of speech is a bulwark of democracy.
However, this freedom is not absolute. Freedom of speech emphasises the profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.”
Public statements, debates and conclusions on preliminary, sometimes unverified criminal allegations that have not gone through the crucible of forensic evidential examination is not part of freedom of speech and can harm and destroy the reputation of those involved.
Festus Okoye
Festokoye2003@yahoo.com
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