Naming And Shaming Of Suspects: Lawful Or Unlawful?

Daily Law Tips (Tip 823) by Onyekachi Umah, Esq., LL.M, ACIArb (UK)

Introduction:

For every crime, there is a punishment, and publicly disgracing a criminal could be a punishment. A criminal is different from a criminal suspect and as such, public disgrace (naming and shaming) of a criminal may not apply to a criminal suspect. This work answers this question; “Naming and Shaming of Suspects: Lawful or Unlawful?”. It considers the definition of “Naming and Shaming”; the status of a suspect; the practice and threat for naming and shaming in Nigeria; and the legality of naming and shaming of suspects in Nigeria. Also, the work briefly focuses on the issues of whether a conviction is naming and shaming; and whether all convicts can be named and shamed.

Who is a Suspect (Criminal Suspect)?:

The Constitution of Nigeria says that all persons in Nigeria are presumed to be innocent of all crimes unless it is proven that they are not innocent. So, even persons arrested while they were committing a crime are presumed to be innocent by the courts in Nigeria. It is the business of the Prosecutors to prove in courts that arrested persons are guilty and not innocent.

A person arrested on the suspicion of committing any crime (offence) but yet to be formally charged to a court of law is a “Suspect”. Suspects who are often being investigated, questioned, queried, or examined but not yet charged to a court of law (prosecuted) are suspects. Then suspects that are charged to court are referred to as “Defendants” (earlier they were known as “Accused Persons”). Then, where a court of law finds a Defendant to be guilty of any crime, the Defendant becomes a “Convict”. A Convict is a Criminal because a court of law says so. Where a “Convict” is done serving his punishment or is pardoned, the Convict becomes an “Ex-Convict”.

For this publication, the term “Suspect” will include Suspects and Defendants. Also, the term will be stretched to cover any Convict that committed an offence that has no law authorizing naming and shaming. Well, one may wonder and argue that being convicted by a court of law is naming and shaming, since court trials are often public events and convictions (judgments) are public documents. Hence, the argument may end with the conclusion that a Convict having been convicted by a court, can be named and shamed without a law that specifically authorizes the naming and shaming of such convicts. The issues of whether a conviction is naming and shaming; and whether all convicts can be named and shamed is addressed below.

Naming and Shaming in Nigeria:

“Naming and shaming” is defined by Cambridge Dictionary as “the activity of saying publicly that a person or company, etc. has behaved in a bad or illegal way.” Among the popular words/phrases in Nigeria is “Naming and Shaming”. The phrase owes its recent popularity to the Federal Government of Nigeria. The Federal Ministry of Works in Nigeria is headed by a lawyer, Senior Advocate of Nigeria and former Governor of Lagos State; Mr Babatunde Fashola, SAN. Recently, the public media reported that Mr Fashola has threatened to name and shame defaulting contractors engaged by the Federal Government.

Also, recently, contrary to public outcry, the Federal Government of Nigeria reiterated that it will not name and shame the financiers/supporters of insurgents in Northern Nigeria. However, many Nigerians are not comfortable with this position of the Federal Government. This is a scenario where the public is rightly or wrongly calling for the naming and shaming of criminal suspects; the following paragraphs will explain whether the call for naming and shaming is right or wrong.

Arguably, ahead of the position of the Federal Government of Nigeria in the above scenarios, naming and shaming is contained in the laws of Nigeria. Many may argue that the Violence Against Persons Prohibition Act, 2015 (VAPP Act) which criminalizes and punishes violence against persons in Abuja (Federal Capital Territory), has legalized the naming and shaming of criminals. By the VAPP Act, where a person is convicted for a sexual offence, the person’s name and information are to be published in a Sexual Offenders Register. The Register is made public and accessible to all persons and as such it is arguably a naming and shaming (public shame) practice. Presently, the National Agency for the Prohibition of Trafficking in Persons (NAPTIP) maintains and administers the Nigeria Sexual Offender & Service Provider Registers. The Register is accessible online via https://nsod.naptip.gov.ng.

Also, the various sexual and gender offences prohibition laws across states in Nigeria have provisions for the maintenance of Sexual Offenders Registers. They have also given room for the names and information of sexual offenders to be made public and the offenders named and shamed. They are the modern-day most popular naming and shaming practices in Nigeria. Whether such practise is lawful or unlawful is part of the issues addressed in the next section.

Should Suspects be Named and Shamed?

Nigeria is a country designed to be governed by written laws and not the wishes, and opinions of its leaders. Hence, nothing is a crime in Nigeria, until there is a written law making an act, action or inaction to be a crime. Also, punishments for crimes (offences) are never left to chance, rather, they are written in our laws. Hence, Nigeria cannot name and shame any person unless there is a written law allowing such practice.

The Violence Against Persons Prohibition Act (VAPP Act) 2015 and similar laws across states in Nigeria have expressly allowed the naming and shaming of convicted sexual offenders (criminals). However, this is only to the extent that putting the names of sexual offenders in the Register of Sexual Offenders which is public and accessible on the internet is naming and shaming. Hence, it is lawful for criminals that are convicted for sexual offences to be named and shamed in Nigeria (or better put; in parts of Nigeria where there are enabling laws). This also means that not all criminals can be named and shamed in Nigeria and also not in all parts of Nigeria.

Suspects all around Nigeria are presumed to be innocent until a court of law says otherwise. Hence, no person, group or government in any part of the world has the power or authority to name and shame any suspect in Nigeria for any crime. Naming and shaming is a punishment for crime and as such are the entitlements of only certain convicts in Nigeria, like sexual offenders. Hence, an innocent person, group, company or institution should not be named and shamed. All suspects in Nigeria are innocent and should never be named or shamed. Naming and shaming a suspect is a gross violation of the fundamental human rights of the suspect. It is also a breach of several civil rights of the suspect. Naming and shaming a suspect is also a civil wrong and a crime on its own. Naming and shaming of suspects is unlawful in all parts of Nigeria and on all issues, including issues of national security.

Conclusion:

In Nigeria, religion, tradition, public opinion and government policies are not laws. Laws are made by the legislatures, while the judiciary interprets them, the executive enforces them. Crimes and their punishments are created by laws and not by any other thing. Naming and shaming is a form of punishment and as such can only be dispensed by a court of law and on the authority of a written law. Expectedly, the few offences in Nigeria that could beget naming and shaming (publish disgrace) are created by law and their punishments contained in the law. An arguable example is the Violence Against Persons Prohibition Act (VAPP Act) which authorises a Sexual Offenders Register to be kept and made public.

Since all persons, groups, businesses, companies, institutions, and governments in Nigeria are presumed, assumed and deemed to be innocent, suspects should not serve any form of punishment, including naming and shaming. Hence, suspects in Nigeria cannot and should not be named and shamed by any person, institution or government in any part of the globe. Naming and shaming a suspect violates the rights of the suspect and could beget several legal actions for civil wrongs, violation of human rights and also crimes. It is unlawful and unconstitutional to name and shame a suspect in any part of Nigeria.

Actionable Advice:

1. Wait for courts of law to hear cases, convict suspects (defendants) and order that they be named and shamed, before attempting to name and shame them.
2. Where any person is named and shamed without an order of a court in any part of Nigeria, the person should seek legal remedies, immediately.
3. Always engage and speak with your lawyer.

Authorities:

1. Sections 1, 2, 3, 4, 5, 6, 7, 318 and 319 as well as Schedule 4 to the Constitution of the Federal Republic of Nigeria, 1999.
2. Sections 1(4) and 44 of the Violence Against Persons Prohibition Act, 2015 and similar laws across the states in Nigeria.

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66. Onyekachi Umah, “Duty of Government to Pay Compensation for Damages Caused By Riot.” (LearnNigerianLaws.com, 4 November 2020) <https://learnnigerianlaws.com/duty-of-government-to-pay-compensation-for-damages-caused-by-riot/> accessed 15 February 2021.
67. Onyekachi Umah, “Who Pays For Properties Damaged or Lost In A Riot In Nigeria” (LearnNigerianLaws.com, 6 August 2018) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-157-who-pays-for-properties-damaged-or-lost-in-a-riot-in-nigeria/> accessed 3 November 2020.
68. Onyekachi Umah, “List of Fundamental Human Rights In Nigeria.” (LearnNigerianLaws.com, 22 October 2020) <https://learnnigerianlaws.com/list-of-fundamental-human-rights-in-nigeria/> accessed 15 February 2021.
69. Onyekachi Umah, “Does The President/Governors Have Powers To Lockdown Any Part Of Nigeria Or Restrict Human Rights?” (Daily Law Tips [Tip 537]) <https://learnnigerianlaws.com/does-the-president-governors-have-powers-to-lockdown-any-part-of-nigeria-or-restrict-human-rights-daily-law-tips-tip-537-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 18 October 2020.
70. Chris Admin, “Onyekachi Umah Speaks To ChannelsTv On SARS & The New Police Act” (LearnNigerianLaws.com, 9 November 2020) <https://learnnigerianlaws.com/onyekachi-umah-speaks-to-channelstv-on-sars-the-new-police-act/> accessed 15 February 2021.
71. Onyekachi Umah, “What Is The Punishment For Any Person Including Police Officers That Tortures Another Person” (LearnNigerianLaws.com, 18 December 2018) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-251-what-is-the-punishment-for-any-person-including-police-officers-that-tortures-another-person/> accessed 15 February 2021.
72. Onyekachi Umah, “Is Obeying “Orders From Above” a Defence for Torture in Nigeria” (LearnNIgerianLaws.com, 7 September 2019) <https://learnnigerianlaws.com/is-obeying-orders-from-above-a-defence-for-torture-in-nigeria-daily-law-tips-tip-409-by-onyekachi-umah-esq-llm-aciarb-uk/> accessed 15 February 2021.
73. Onyekachi Umah, “Being Present During Torture Without Participating In It, Is A Crime” (LearnNigerianLaws.com, 25 November 2019) <https://learnnigerianlaws.com/being-present-during-torture-without-participating-in-it-is-a-crime-daily-law-tips-tip-464-by-onyekachi-umah-esq-llm-aciarb-uk/> accessed 15 February 2021.
74. Onyekachi Umah, “New Punishment for Security Officers Involved in Torture in Nigeria.” (LearnNigerianLaws.com, 27 August 2017) <https://learnnigerianlaws.com/new-punishment-for-security-officers-involved-in-torture-in-nigeria-daily-law-tips-tip-401-by-onyekachi-umah-esq-llm-aciarb-uk/> accessed 15 February 2021.
75. Onyekachi Umah, “Watching Torture but not Participating in it, is Torture.” (LearnNigerianLaws.com, 19 November 2019) <https://learnnigerianlaws.com/watching-torture-but-not-participating-in-it-is-torture-daily-law-tips-tip-460-by-onyekachi-umah-esq-llm-aciarb-uk/> accessed 15 February 2021.
76. Onyekachi Umah, “Any Security Agency’s Manual/Protocol that Allows Torture Even for National Security Cases is Unlawful and its Officers are Liable.” (LearnNigerianLaws.com, 11 September 2019) <https://learnnigerianlaws.com/any-security-agency-s-manual-protocol-that-allows-torture-even-for-national-security-cases-is-unlawful-and-its-officers-are-liable-daily-law-tips-tip-412-by-onyekachi-umah-esq-llm-aciarb-uk/> accessed 15 February 2021
77. Direct access to previous works on Torture in Nigeria <https://learnnigerianlaws.com/?s=torture+>
78. Direct access to previous works on Nigeria Police Force <https://learnnigerianlaws.com/?s=police+>

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