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.
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.”
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]
THE TRIAL OF COLONEL NICHOLAS ASHINZE AND THE EVILS OF MEDIA TRIALS BY THE EFCC.
Reviewed by Unknown
on
Sunday, April 16, 2017
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