THE TRIAL OF COLONEL NICHOLAS ASHINZE AND THE EVILS OF MEDIA TRIALS BY THE EFCC.

BACKGROUND FACTS:

What inspired this write up is a news report titled: “Court stops EFCC case over falsehood, media trial” which this writer read on the website of Vanguard Newspaper of March 21, 2017 posted at hour of 03:06pm. For ease of reference, the link is hereby posted.  [http://www.vanguardngr.com/2017/03/court-stops-efcc-case-falsehood-media-trial/].

For their bearing on this reflection we are about to undertake, I would endeavor to reproduce those portions of the report that would lend this piece to easy comprehension and no more. The report goes as follows:

The Economic and Financial Crimes Commission (EFCC) suffered a major setback in the trial of Colonel Nicholas Ashinze and three others in an alleged N3billion unlawful transfer as the Federal High Court in Abuja suspended the case over an alleged falsehood and media trial engaged by the anti-graft agency against the military officer. Ashinze was Military Assistant to former National Security Adviser, Colonel Sambo Dasuki (Rtd). Counsel to Ashinze, Mr. Ernest Nwoye, had at the resumed trial protested the press statement issued by EFCC in which the defendant was reported to have been indicted by the court for diverting and misappropriating a whopping sum of N36billion. Apart from the alleged N36bn said to have been diverted and misappropriated, the EFCC statement also referred to serving Colonel Ashinze as a retired officer. The counsel who drew the attention of Justice Gabriel Kolawole to the offending EFCC press statement, tendered the statement and the newspaper publications at the court to establish bias and misrepresentation of the court proceeding of March 7, 2017 by the anti-graft agency. Nwoye told the Judge that Colonel Ashinze was never charged by EFCC for any offence on N36billion diversion and misappropriation and wondered where EFCC Media team, that was not present in the court, got its proceeding that the defendant had been indicted for the amount. The counsel urged the Court to frown at Media Trial the defendant is being subjected to as such action if not checked, will lead to misrepresentation of facts by the general public. Nwoye also tendered newspaper publications that emanated from the EFCC press statement issued by one Mr. Wilson Uwujare who claimed to be the Head of Media and Publicity in the EFCC. Nwoye said that both the complainant and the defendant are bound by court records of proceeding and any attempt by one of the parties to concoct lies to prejudice the order is against the rule of law and natural justice. Justice Kolawle who was taken aback by the EFCC’s press statement asked the EFCC counsel, Mr Ofem Uket if he was aware of the press statement and if he ever issued any. The EFCC counsel denied ever granting press interview in respect of the trial but admitted receiving letter of complaint from Nwoye and that he consulted with EFCC and discovered that the Press Statement was actually released to the media. Uket, in his defence said that contrary to the charge of N3billion alleged transfer, evidence from witnesses have shown that about N5billion was involved. …“In order to prevent media and court trial at the same time with one misrepresenting the order, I have stopped this trial pending the time the EFCC retracts the offending press statement. The trial of the defendant has nothing to do with N36billion diversion and misappropriation. “The retraction has to be done between now and April 13, 2017. And this EFCC witness is hereby ordered to step down from the witness box and come back on April 13, 2017 “The court proper proceeding cannot materialise where records and facts of the case are being distorted by EFCC that is even the complainant in the matter.”

EXORDIUM:

There is no doubting the ubiquitous positive influence of the media on the evolution of democracy. Indeed, remove media coverage from the criminal trials going on in our courts almost on daily basis and the transparency of trial ordained in our Constitution as a formidable safeguard of an accused person would go to the dogs. As an indispensable ingredient in the cooking pot of democracy, the 1999 Amended Constitution of the Federal Republic of Nigeria [simply called the Constitution henceforth in this discuss], reserves an envious position for press fondly called the fourth estate of the realm. For purposes of completeness and flow of logic, it is pertinent to reproduce the constitutional provision dealing with press freedom. It is section 22 and it reads thus;

The press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in this Chapter and uphold the responsibility and accountability of the Government to the people.

It is equally of great importance to highlight the fundamental right to freedom of expression guaranteed by the Constitution. Being one of the beacons that will mark the contours of this discuss, it is most sufficient to set out the said constitutional provision.

39. (1) Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference. 

(2) Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions:

 The title of this piece calls attention to some key words the concept of which we need to appreciate. Those key words are ‘media trial’ and ‘fair trial’. We shall now turn to define the key terms that are inextricably intertwined and central to the appreciation of this piece.

DEFINITION OF TERMS:

According to the Wikipedia, Trial by media is a phrase popular in the late 20th century and early 21st century to describe the impact of television and newspaper coverage on a person's reputation by creating a widespread perception of guilt or innocence before, or after, a verdict in a court of law.

It is pertinent to observe that the concept of ‘fair trial’ owes its provenance to the Constitution as being one of the safeguards consecrated for the benefit of an accused person. That imperishable constitutional right to “fair trial” is irrefragably grafted on the supreme law of the land with a view to ensuring that no man is sent to the gallows by perfunctory judicial process or an outcome dictated largely by public opinions built on sentiment as against the strength and weaknesses of the agglomeration of facts and evidence before the court. Section 36 of the Constitution represents the total package of the fair trial principle. Elsewhere, it has been noted that Fairness of a trial is fundamental to the administration of justice, it does not only give integrity to the legal system but it also ensures the confidence of the society in the justice system. The concept of fair hearing is at the foundation of the legal system; two major principles of fair hearing are "Audi Alteram Partem" meaning "hear the other party" and "Nemo Judex In Causa Sua" meaning "no one should be a judge in his own case.”.

While acknowledging the glaring fact that the social media may greatly impact judicial proceedings in many positive ways, however, there have been growing concerns about the negative impacts it bears on the courtroom proceedings. These concerns are indeed legitimate. They can no longer be ignored. The stakeholders are now all at one that the negative impact of social media on the trial of accused persons is one of the identified contemporary challenges besetting our criminal justice administration system. Finding immediate and lasting solutions to this emerging disturbing trend is one that can no longer suffer delay. The danger of such delay is now looking us all in our faces. In all of this, what suffers most is the right of an accused person to a fair trial.

It is pertinent to observe that this disturbing trend is not a challenge peculiar to Nigeria as a country only. Its reach is wide-spread. As a renowned scholar at Murdoch University, Ms Krawitz, aptly noted, “It is crucial that Australian courts actively address these issues because of the importance of what is at stake: an accused's right to a fair trial.” [http://www.nd.edu.au/news/media-releases/2013/165]. The story is the same in India. This concern impelled the Indian Supreme Court to hand down the warning that “a trial by media amounts to travesty of justice if it causes impediments in the accepted judicious and fair investigation and trial” [refer to Manu Sharma vs. State (NCT of Delhi) 2010(2) ACR1645 (SC), AIR2010SC2352].

It must be stressed that fair hearing is one of the chief cornerstones of our criminal justice system. It is therefore not a privilege but an immutable right inuring eternally to the benefit of an accused person and to equally safeguard the integrity of the judicial process. The tons of academic materials and barrels of judicial ink which have engendered unending academic enterprise in expounding this fundamental right to fair trial speaks to the ubiquitous status of this right. It cannot [as it ought not to] be whittled down or overthrown by the side winds of media trial. The Nigerian Courts have remained consistent in upholding this right. Indeed, extensive research has shown that the weight of all binding judicial authorities in this country speak with the same accord in jealously guarding this right considered to be inviolate. 

In the case of Federal Polytechnic, Ede & Ors vs. Alhaji Lukman Ademola Oyebanji (2012) LPELR-19696(CA), the irrepressible judicial activist, the ever indomitable C.C. Nweze, J.C.A. (as he then was, now J.S.C.), announced magisterially;

The provision of section 36 (1) of the 1999 Constitution, relating to fair hearing, is truly far-reaching. The requirements of fair hearing are ubiquitous. 
The basic criteria and attributes of fair hearing have been outlined in Case Law. The rationale of all such binding authorities on the matter is that fair hearing imposes an ambidextrous standard of justice in which the court must be fair to both sides of the conflict, Ndu v. The State (1990) 7 NWLR (pt.164) 550, 578, adopted by Onu JSC in Ogundoyin v. Adeyemi (2001) 33 WRN 1, 13-14. It, therefore, does not anticipate a standard of justice, which is biased in favour of one party, but prejudices the other. Above all, it is not a technical doctrine, but one of substance, Ogundoyin v. Adeyemi (supra) at pp. 14 - 15, Onu JSC, approvingly adopting the posture which Nnaemeka Agu JSC took in Kotoye v C.B.N. (1989) 1 NWLR (pt. 98) 418, 448. The touchstone is determining the observance of fair hearing in trials is not the question whether any injustice has been occasioned on any party due to want of hearing. It is rather the question whether an opportunity of hearing was afforded to parties entitled to be heard, J. C. C. Inter Ltd. v N.G.I. Ltd. (2002) 4 WRN 91, 104. 

END:
In ending this short reflection, we recall the meaning ascribed to media trial by the Indian Supreme Court as: “The impact of television and newspaper coverage on a person's reputation by creating a widespread perception of guilt regardless of any verdict in a court of law. During high publicity court cases, the media are often accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial nearly impossible but means that, regardless of the result of the trial, in public perception the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny.”

No doubt, in tying up the loose ends of this piece, it is important to take the liberty which the platform of this rare academic altitude has offered to eloquently condemn the media trial to which Colonel Nicholas Ashinze has been subjected in his ongoing trial before the Federal High Court presided over by Justice Gabriel Kolawole. It is an unwholesome arsenal in the armoury of the EFCC being deployed with confounding recklessness to entice the gullible and twist the minds of the undiscerning. The satanic media trial of citizens [like Colonel Nicholas Ashinze in the instance] who may have come under suspicion by the EFCC is solely aimed at provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial nearly impossible but means that, regardless of the result of the trial, in public perception the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny. [In the language of the Indian Supreme Court.].

It cannot be otherwise for it totally defies reason and queries the motive for deliberately misrepresenting the proceedings of the Court by using the media to rub the head of Colonel Ashinze in the mud and thereby making it well-nigh impossible to live the rest of his life without intense public scrutiny and worse still making his fair trail nearly impossible. This is indeed the aspect of the media coverage of judicial proceedings that has become of grave concern to stakeholders in our criminal justice system world over. It is this negative impact of the media on the fair trial of accused persons that Ms Krawitz deems it crucial that Australian courts actively address…because of the importance of what is at stake: an accused's right to a fair trial.

It is the turn of Colonel Nicholas Ashinze today, and nobody knows whose turn it would be tomorrow. Our history and experiences have shown that it is not also impossible that those who are nurturing and fertilizing the festering evil system of media trial today at the EFCC might become its victims tomorrow.

In signing off this piece, we must now praise the Honourable Justice Gabriel Kolawole. By his Ruling, he has stood up to be counted especially at a time when the judiciary is practically under siege laid by a most intolerant and hostile regime. His courageous stand in stepping in to stop the EFCC on their evil track could not have been better captured than he did it in his short Ruling for which he deserves the commendations of all stakeholders in the administration of criminal justice and preservation of democracy in Nigeria. Hear him;

“It is unfair for EFCC as a complainant in this trial to resort to self-help by engaging the defendant in the media trial at the same time in the court trial. “If you want to try the defendant in the media, you have to limit yourself to the media. You have to stop misleading the public in the fact of this trial. Let me say it for the sake of emphasis that EFCC must stop the use of journalists to distort proceedings in my court. You cannot be engaging in two trials: one in the court and one in the media at the same time. If you are not satisfied with my decision to stop this trial pending the time the EFCC retract this offending press statement of my court proceeding, then you can take your case to another court “This press statement by one Wilson Uwujare who claimed to be from EFCC is scandalous and prejudice to fair trial of the defendant in this matter.”

We find here a convenient place to stop.

JOHNMARY CHUKWUKASI JIDEOBI is a Criminal Defence Attorney and Human Rights activist based in Abuja, Nigeria. He could be reached on: [email protected]