By Emmanuel Onwubiko
“Anyone can be falsely accused of a crime. Everyone accused of a crime deserves a fair trial.” – John Garamendi
“A fair trial is one in which the rules of evidence are honored, the accused has competent counsel, and the judge enforces the proper courtroom procedures – a trial in which every assumption can be challenged.” – Harry Browne:
From onset, I wish to categorically state that the youthful Chairman of the Economic and Financial Crimes Commission (EFCC) Mr. Abdulrasheed Bawa has so far brought in a lot of youthfulness and reinvigorated energy towards the efforts to eradicate economic and financial crimes from the face of Nigeria.
I can say it without any fear of error that Abdulrasheed Bawa has for now made his fellow youths very proud and has signposted so far to millions of Nigerians how to be a youth. Also, I want to state that my passion and efforts are all geared towards seeing a working and functional Nigeria Police Force whose members are respected of the fundamental human rights of the citizens and a policing system that does not tolerate torture and extra legal killings of suspects as are being practiced now in the Nigerian Police Force and sadly the current hierarchy is one of the most dreadful things to ever happen to Nigeria since amalgamation in 1914. The EFCC and the Nigeria Police Force are the thematic area of our write up today and we will start from the EFCC.
The EFCC under the watch of the youngest law enforcement leader has still failed to outgrow certain tendencies that make it look like the body is above the law.
One of those indiscretions is the illegal practice of media trials and parading of suspects before the media and to make it look very comical, the suspects are seen holding signboards telling what charges they are facing.
This practice offends the principle of the rule of law and fair hearing as even institutionalised and enshrined in the Nigerian Constitution in section36(5) which states that an accused person is innocent in the eye of the law until contrary determinations are reached by a court of competent jurisdictions.
We will look at it later but for now, let us look at the deepening crises of lack of professionalism by the operatives of the Nigerian Police Force and the increasing fading of the powers and functions of the Police Service Commission due to leadership inertia and rudderless political interferences. This is compounded by the lack of passion on the part of President Muhammadu Buhari and the National Assembly to bring about a remedial measure to compel the Police Service Commission to wake up from slumber.
Because of the dysfunctional nature of PSC as currently constituted, The trending news is on the abysmal levels of Police lack of discipline and as have been told that a total of 130 senior police officers are currently “standing trial” before the Force Disciplinary Committee(FDC) sitting at the LouisEdetHouse, Abuja, over cases bordering on alleged indiscipline.
According to a statement recently, by the Force Public Relations Officer (FPRO), CSP Olumuyiwa Adejobi, the disciplinary panel, which comprises the seven Deputy Inspectors-General of Police as arbiters, and the Assistant Inspector-General of Police, Force Secretary, as its scribe, began its session on June 28, and will hold till tomorrow, July 1.
The Inspector-General of Police (IGP), Usman Baba, has expressed confidence in the Deputy Inspectors- General of Police overseeing the Committee to ensure dispensation of justice in all the cases before them. The affected officers include two Commissioners of Police, (CPs); three Assistant Commissioners of Police (ACPs); 11 Chief Superintendents of Police (CSPs); 19 Superintendents of Police (SPs); 18 Deputy Superintendents of Police (DSPs); and 77 Assistant Superintendents of Police (ASPs).
The officers, the FPRO noted, “are from all over the country with Pending Disciplinary Matters (PDM).” He explained that the committee will be reviewing the disciplinary cases instituted against the senior police officers, with a view to determining their culpability or otherwise. “Upon conclusion of proceedings and hearing of evidences, recommendations on each matter will be communicated to the Police Service Commission (PSC) for consideration.
“The IGP equally assures that the Force is deliberately committed to cleaning up its house for a more professional and citizens-focused policing system.” Meanwhile, the Force Headquarters is set to launch a digital solution to ensure standardisation and upgrade of the Force identification system, to be known as e-Warrant Card. “The e-Warrant Card would provide seamless identification of officers all over the country as well as eliminate the possibility of criminal elements presenting fake identity cards at police stations, personating themselves to be police officers. “The project which commenced with the approval of the IGP is being carried out by Police ICT experts attached to the Department of Information and Communication Technology (ICT), Force Headquarters, Abuja, Adejobi said.
These issues aforementioned are just a tip off the iceberg because the stench of indiscipline by the operatives of the Nigeria Police Force were the triggers that instigated the national protests two years back against police brutality. However, from what we now see since that #ENDSARS protest of two years back, it is clear that Police brutality and use of extrajudicial killings of suspects in police custody have only just increased with frightening dimensions. The police use physical, psychological tortures against suspects in their custody.
The level of lack of professionalism within the Nigerian police is so much frightening that if no concrete reforms are effected to bring these to a check, there could be another national protest against the police.
It doesn’t look like the current Inspector-General of Police is reform minded because he is not receptive and responsive to the extensive clamour for his operatives to respect the law and operate within the precepts of the rule of law and his appointing authority who is the President tolerates dereliction of duty.
For instance, the family members of Chinonso Omeh, an indigene of Umuogboagu community, Enugu Ezike, Igbo Eze North Local Government Area (LGA), Enugu state, have cried out for justice over the alleged killing of Mr Chinonso while under police custody at the defunct Awkuzu SARS which has been renamed State CID Annex.
Onyebuchi Omeh, elder brother to Chinonso, who raised the alarm while addressing journalists in Onitsha, Anambra state, explained that his younger brother Chinonso, 30, was arrested on February 4, 2022 over alleged threat to life of one Austin Izunnwanne.
According to Omeh, Chinonso was detained at Ogidi Police Station before his transfer to Awkuzu but police at Awkuzu denied them access to see him in the cell and even initially denied detaining him in their custody.
He explained that after repeated attempts to see him at Awkuzu state CID Annex failed, they wrote a petition to the AIG in charge of Zone 13, Ukpo, Anambra state through a lawyer and the IPO at Ogidi was summoned who gave a graphic account of how, when and whom he handed Chinonso over to at Awkuzu.
Omeh added that when the team from Awkuzu was also summoned to Zone 13 Ukpo, they confessed that Chinonso was in their custody but slumped in their cell and later pronounced dead by a medical doctor.
He noted that when they requested to see his corpse, they were taken to a private mortuary and shown the corpse of a 70-year-old man in place of their brother Chinonso.
He said the last time they had appointment with the police team investigating the matter at Zone 13, Ukpo, they learnt that the two policemen from Awkuzu, the IPO, Michael Nelson and his team leader known as Big Sam who handled their brother’s matter earlier detained over the case have been released without prosecution.
When contacted, the Police Public Relations Officer, Zone 13 Ukpo, Ms Nkiruka Nwode, said he had not been briefed on the extent of investigation on the matter but would respond once she got the information.
These instances of breakdown of law and order by the police are all over the Country but the IGP doesn’t give a damn. The sad thing too is that Mr. President doesn’t give a damn either and the National Assembly do not give a damn and so we are doomed.
Also the statutory body to enforce and instil disciplinary measures on the police called Police Service Commission is sick in the head and in urgent need of unbundling and rejigging of the leadership because the Chairman is absolutely incompetent and tired. The PSC is a shadow of its old self thereby allowing lawlessness and impunity to rein freely in the Nigerian Police Force.
Now let us move to the EFCC and the practice of illegality of parading suspects holding signboards as if EFCC has convicted them of those offences even before they are taken to the Court in line with Section 6 of the Constitution which gives judicial powers tonthe courts.
Also this practice violates the chances of those accused persons getting fairness in their prosecution because criminalising and demonising them before going to court or whilst in court is as same as persecution and lynch mob justice.
It is for this and many other malpractices that the EFCC is not enjoying public confidence to such a level that whistleblowing policy is not succeeding and the EFCC is bemoaning that fact.
The Economic Financial Crimes Commission the other day decried the decline in whistleblowing across the country despite the huge rewards the commission offers to whistleblowers.
The Chairman, EFCC, Abdulrasheed Bawa stated this in Awka, the Anambra State capital at a one-day town hall meeting recently.
The programme facilitated by the African Centre for Media and Information Literacy, centred on strengthening the capacity of stakeholders on whistleblowing policy.
Bawa was represented by the Zonal Commander, EFCC, Enugu, Oshodi Johnson.
The EFCC chairman pointed out that at the beginning of the whistleblowing policy, the commission received huge information which, according to him, led to the recovery of “humongous” stolen public funds.
He disclosed that two of the landmark recoveries from whistleblowers’ information were the $9.8m recovered from a former Managing Director of the Nigerian National Petroleum Corporation, Andrew Yakubu, and the $11m recovered at an apartment in Osborne Towers, Ikoyi, Lagos.
He wondered why the sudden decline and the reason behind it.
He listed challenges undermining the policy effectiveness to include ignorance of its legal and administrative frameworks as well as difficulties in navigating the complex bureaucratic processes for claiming the advertised incentives.
He said, “It is also not impossible that the few false informants who were prosecuted for wanting to turn a serious programme to memes, unnerved some other would-be informants.
“Whatever the challenges are, it is imperative that there is a fresh awakening to sustain the flow of critical intelligence to Nigerian law enforcement agencies.
“Recall almost with some sense of nostalgia, how a few years ago, precisely on December 21, 2016, the Federal Government introduced the Whistle-blower Policy, which offered some incentives to citizens that provide information leading to the recovery of stolen public funds.
“It was heralded by a frenzy of sorts with a deluge of information by informants, some of which led to the recovery of humongous sums of money by the EFCC.
“Two of the landmark recoveries from whistleblowers’ information were the $9.8m recovered from a former managing director of the Nigerian National Petroleum Corporation, Mr Andrew Yakubu, and the $11m recovered at an apartment in Osborne Towers, Ikoyi, Lagos.
“After these landmark recoveries and a few others and notwithstanding the fact that those who came forward with useful information received handsome rewards, enthusiasm for the policy appears to have waned a bit.
“It would seem that the policy is experiencing challenges that tend to undermine its effectiveness. Several factors may be responsible for this. But to my mind, the most obvious is lack of adequate understanding of the legal and administrative frameworks of the policy and the difficulties of navigating the labyrinth of bureaucratic processes for claiming the advertised incentives.”
Bawa pledged the EFCC’s willingness to partner with critical agencies like AFRICMIL and other community-based organisations in strengthening their capacities to identify and quickly report suspected cases of corruption in their communities.
Let me say it straight away: The EFCC may not get the trust of whistleblowers because the body has some moles and saboteurs who leak the identity of whistleblowers to accused looters of public funds and those whose identities are not blown open do not receive their just payments of compensations statutorily provided for on time because the systemic corruption in the EFCC mostly undermine the quick disbursement of their commission to such a ridiculous extent that some whistleblowers in the past had to resort to litigation all in an effort to receive their compensation.
These are facts. Another factor is the lack of respect for those principles that safeguard fair trial and fair hearing rights of accused persons which are violated with reckless abandon by EFCC. It is as if the EFCC is a law unto itself and does not abide by the global best practices on the treatment of accused persons.
If EFCC is not aware of the concept of fairness please they should read the following definitions.
What are fair trial and fair hearing rights?
The right to a fair and public criminal trial or a fair and public hearing in civil proceedings is one of the guarantees in relation to legal proceedings. Fair trial and fair hearing rights include: that all persons are equal before courts and tribunals
the right to a fair and public hearing before a competent, independent and impartial court or tribunal established by law.
The other guarantees are the presumption of innocence, and minimum guarantees in criminal proceedings, such as the right to counsel and not to be compelled to self-incriminate. For more information on the other guarantees in article 14 of the ICCPR, see the Guidance Sheets on the Presumption of innocence and Minimum guarantees in criminal proceedings.
Where do fair trial and fair hearing rights come from? The writer from Australia reminds us that Australia is a party to seven core international human rights treaties. Fair trial and fair hearing rights are contained in article 14 of the International Covenant on Civil and Political Rights (ICCPR). Nigeria is a signatory to these treaties too. The Nigerian Constitution is replete with provisions obliging law enforcers to observe fairness in the prosecution of accused persons who are presumed to be innocent until they are convicted by a court of competent jurisdictions and not by MOB TRIAL OF ASKING THEM TO HOLD SIGNBOARD showcasing their guilt even before they have the fighting chance of a defence(www.ag.gov.au).
Also, let us ask as individuals thus, When do I need to consider the right to a fair trial and fair hearing?
The writer says that we will need to consider the right to a fair trial and/or fair hearing when you are working on legislation, a policy or a program that: creates a new court or tribunal, regulates the appointment, remuneration or removal of judges or tribunal members from office, alters the jurisdiction of courts or tribunals, including by restricting the powers of courts to review administrative decisions
regulates the rules of evidence in courts or tribunals; provides for special procedures for witnesses to give evidence, limits the requirement of a court or tribunal to accord fair trial and/or fair hearing rights, for instance in relation to the disclosure of evidence to the accused, regulates the way in which the media may report on proceedings, for instance by authorising grants of suppression orders or closing court proceedings to the public, or
provides international legal assistance or cooperation, including development of legislation and/or strengthening criminal justice systems. These basics are observed in the breach by the EFCC and the Police.
What is the scope of the right to a fair trial and a fair hearing, if I may ask and the Australian writer says that the right to a fair trial and a fair hearing applies to both criminal and civil proceedings, and in cases before both courts and tribunals. It also applies to military disciplinary hearings. The right is concerned with procedural fairness, rather than with the substantive decision of the court or tribunal.
There is fundamentally no doubt that what constitutes a fair hearing will require recognition of the interests of the accused, the victim and the community (in a criminal trial) and of all parties (in a civil proceeding).
In any event, the procedures followed in a hearing should respect the principle of ‘equality of arms’, which requires that all parties to a proceeding must have a reasonable opportunity of presenting their case under conditions that do not disadvantage them as against other parties to the proceedings. The UN Human Rights Committee has found a violation of article 14(1) in a case in which a right of appeal was open to the prosecution but not to the accused.
On the issue of the right to a public hearing, we were told that this incorporates the principle that justice should not only be done, but be seen to be done, by subjecting legal proceedings to public scrutiny.
However, pre-trial decisions made by prosecuting authorities are not required to be made in public. In some cases, appellate decisions may be made ‘on the papers’, rather than on the basis of a public hearing. This will not breach the right to a public hearing if the material on which the court bases its decision is publicly available, as is the decision itself. The requirement in article 14(1) that decisions be made public is based on the principle that legal proceedings be subject to public scrutiny.
Some methods whereby witnesses give evidence, for example by video link, or where the witness is shielded from the accused, may raise issues regarding the right to a public hearing. Proceedings may also be closed to the public in the interests of national security.
In Australia, the requirement of an independent and impartial court is underpinned by the doctrine of the separation of judicial power from executive and legislative power under the Constitution. The principle of judicial independence ensures that disputes between people, and between people and governments, are resolved by courts and judges who are impartial and are not subject to improper control or pressure, whether governmental or private. The requirement of impartiality also means that proceedings must be free from bias and the objective perception of bias(www.ag.gov.au).
Unfortunately, even when the constitutional protection for fair trials are enshrined in the Grund Norm of Nigeria, certain policy measures adopted by the Federal High Court particularly has sabotaged the essence of fair trial concept and this is one factor fueling the perpetuation of the practice of these different sheds of illegality by the EFCC and the Police.
Recently, the Federal High Court brought out a policy which offends the precepts and underpinning essence of fairness in trial to such an extent that lawyers are complaining loud and clear
For instance Chief Mike Ozekhome, a human rights lawyer, says he will challenge the new federal high court (FHC) practice directions barring journalists from covering terrorism trials.
According to the new guidelines issued on Thursday, terrorism proceedings will be conducted in secret, except when the chief judge of the court grants permission for media coverage.
“Proceedings of offences of terrorism, subject to the provisions of Section 232 of the Administration of Criminal Justice Act, 2015 and section 34 of the Terrorism (Prevention) Act, 2011 (as amended), shall be held in camera or as may be ordered by the court,” the document reads.
“The coverage of proceedings under these practice directions is strictly prohibited, save as may be directed by the court.
“A person who contravenes an order or direction made under these practice directions shall be deemed to have committed an offence contrary to Section 34(5) of the Terrorism (Prevention) Act, 2011 (as amended).”
Addressing journalists shortly after a court session on Friday, Ozekhome said the new directions were “inconsistent with the constitution”.
“I do not believe in secret trials because section 36 of the constitution talks about open trials,” he said.
“The point is appreciated that each day this trial comes up, other courts are closed down and other litigants are not allowed to have their day in the court and it is not fair. But there are areas in the new practice directions that I quarrel with.
“I do not mind if they move the venue to another place that does not disturb other litigants, but I’m worried about the provision that screens off journalists, the fourth estate of the realm.
“If you stifle information, the wrong information can emanate from the rumour mill and that is a more dangerous issue.”
He added that false information can jeopardise the fair trial of an accused person.
“I am against the issue of making it look like a secret trial as if a trial is like a gathering of witches and wizards in a coven. It should be a public trial that the whole world can watch,” he said.
“I’m going to challenge some portions of the new practice directions as being unconstitutional,” argues Chief Ozekhome a consummate human rights defender in Nigeria.
My appeal is that law enforcement agencies should stop parading suspects before the media as if they are already convicted. EFCC please stop this illegality now. This is because as bodies created hy law, it doesn’t make any sense that they are lawless in their modus operandi.
EMMANUEL ONWUBIKO is head of the HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA and was NATIONAL COMMISSIONER of the NATIONAL HUMAN RIGHTS COMMISSION OF NIGERIA.
