Departure Of Openness And Fairness In The Criminal Prosecution Of Nnamdi Kanu & Ors: Time For Defense Counsel And IPOB To Re-Jig And Rethink
(Intersociety/SBCHROs, Onitsha Nigeria, 18th December 2016)-The
leaderships of International Society for Civil Liberties and the Rule
of Law (Intersociety) and the Southeast Based Coalition of Human
Rights Organizations (SBCHROs) have, again, observed with deepest
dismay the recent militarist and undemocratic rulings of Hon Justice
Binta Murtala Nyako’s Federal High Court; leading to denial of bail
and right to open and public trial of Citizens Nnamdi Kanu, Benjamin
Madubugwu, David Nwawusi and Chidiebere Onwudiwe. We totally disagree
with the findings or rulings of Hon Justice Binta Murtala Nyako and
grounds upon such militarist and undemocratic findings were made.
We hold, in line with the provisions of the 1999 Constitution of
Nigeria, that that a citizen accused by the State in the open of
committing crime of whatever magnitude in the open, must also be tried
in the open court and that he who alleges must also prove; that
security operatives as witnesses are not more exposed to security
threats, if any, than other witnesses who are not security operatives;
that Nigeria is not a despotic and militarist republic by its current
international status and must not be allowed to be made one by the
likes of Retired Gen Muhammadu Buhari, his SSS and hired and
conformist members of the Bench; and that any form of secret trial or
proceeding unknown to the mandatory sections of the Fundamental Human
Rights Chapter of Nigeria’s 1999 Constitution; must be roundly
rejected by all Nigerians at all times.
As Nigerians and members of the international community are aware,
Citizens Nnamdi Kanu, Ben Madubugwu, David Nwawusi and Chidiebere
Onwudiwe have been in indefinite detention or custody of the State
Security Services (SSS) since July and October 2015; and June 2016
respectively, over allegations by the Buhari Administration that they
committed political crimes, which the Administration tagged
“treasonable felony”, “terrorism” and “unlawful of possession of
(un-prohibited) firearms”. The four Citizens are chieftains of the
Indigenous People of Biafra (IPOB); a non violent self determination
and indigenous rights advocacy movement, advocating for the group and
citizen’s rights of the Igbo and other Southern Ethnic Nationalities
in Nigeria. IPOB and its indigenous rights campaigns are recognized
by the Economic and Social Council of the United Nations or ECOSOC
under the UN Declaration of the Rights of the Indigenous Peoples;
strictly on account of its nonviolent methodology.
According to Buhari Administration, Citizen Nnamdi Kanu committed “a
treasonable felony” (i.e. seeking to violently or militarily unseat
his government) by operating Radio Biafra London (RBL) with associated
agitation messages for a separate statehood and self determination;
that Chidiebere Onwudiwe is “a terrorist” by “being caught in Enugu
studying how to manufacture Improvised Explosive Devices (IEDs)”; that
Benjamin Madubugwu is “a possessor of unlawful firearms” by “being
caught possessing two Pump Action guns without a license”; and that
David Nwawusi is “a reasonable felon” by “being linked to illegal
importation of radio transmitters for transmission of separatist and
hate messages ”.
By the plain language of the Black’s Law Dictionary: Ninth (9th)
Edition 2009; the four nonviolent Citizens under reference are nothing
but State’s victims of Prosecutorial Vindictiveness; defined by the
globally most respected and widely used law dictionary as the act or
an instance of intentionally charging a more serious crime or seeking
a more severe penalty in retaliation for a defendant’s lawful exercise
of a constitutional right.
We wish to quickly recall that the Hon Justice Binta Murtala Nyako’s
Federal High Court sitting in Abuja, Nigeria had on December 1st and
13th 2016 respectively, denied Citizen Kanu and three others bail and
deprived them of their constitutional and international rights to be
tried and heard in public or openly conducted court proceedings. With
the two militarist and undemocratic rulings of Hon Justice Binta
Murtala Nyako, mentioned above, it has become clearer that fairness
and openness have departed the criminal prosecution of Citizen Nnamdi
Kanu and three others. Their prosecution has also changed to
persecution with strong circumstantial evidence of convictable verdict
already prepared waiting to be delivered at the end of their makeshift
trial.
Pieces of circumstantial evidence foreclosing the chances of Citizens
Nnamdi Kanu, Benjamin Madubugwu, David Nwawusi and Chidiebere Onwudiwe
getting fairness and openness in their criminal prosecution are a long
list. Some of them are as follows: 1. Benjamin Madubugwu was arrested
and detained indefinitely since July 2015 by SSS without criminal
trial till date; a period of seventeen months; 2. Citizens Nnamdi Kanu
and David Nwawusi were arrested by SSS and detained indefinitely since
October 2015 without criminal trial till date; a period of fourteen
months; 3. Citizen Chidiebere Onwudiwe was arrested and detained
indefinitely since June 2016 by SSS without criminal trial till date;
a period of over six months; 4. Citizen Justice O. Udeh was arrested
and thrown into indefinite detention by SSS since July 2016 without
any court arraignment or trial till date; a period of over five
months;
Others: 5. Citizen Sunday Chukwuka Obasi was arrested; shot at his two
legs and thrown into indefinite detention by SSS since August 2016
without any court arraignment or trial till date; a period of over
four months; 6. Citizens Ikechukwu Ugwuoha, Asochukwu Ugochukwu,
Sunday J. Okafor, Ekene Onuoha and Joseph Okorie (Ogbuawa) were
arrested and thrown into indefinite detention by SSS since August 2016
without any court arraignment or trial till date; a period of over
four months respectively. In all these, processes and procedures used
by the Buhari Administration in arresting and detaining the eleven
nonviolent citizens grossly run contrary to the Fundamental Human
Rights Chapter of Constitution of the Federal Republic of Nigeria 1999
as well as the African Charter on Human and Peoples Rights of 1981 and
the UN Covenant on Civil and Political Rights of 1976, all ratified by
Nigeria in 1983 and 1993 respectively.
Other persecutorial elements foreclosing fair and open trial as well
as fair justice in the criminal prosecution of Citizen Nnamdi Kanu and
three others are: total disregard and disobedience of several court
pronouncements for the enforcement and protection of the detained
Citizens’ legal and constitutional rights such as court bails;
mindless killing of over 250 Pro Biafra campaigners and attempted
murder of over 300 others by army, police and navy; languishing in
prisons and other detention centres across Nigeria of over 150 Pro
Biafra Campaigners; criminalization and stigmatization of IPOB’s
nonviolent campaigns by the Buhari Administration and its
killer-security forces; high executive meddlesomeness in the judicial
proceedings of the detained citizens; SSS continued onslaught and
crackdown on nonviolent and unarmed IPOB and other innocent Pro Biafra
campaigners by way of indiscriminate arrest at odd hours or times of
blue law and their long detention without trial; enforced
disappearances of scores of IPOB activists; recent militarist and
undemocratic rulings of Hon Justice Binta Murtala Nyako’s Federal High
Court and associated scripted proceedings; to mention but few.
As we had earlier held, the ongoing criminal proceedings of Citizens
Nnamdi Kanu, Ben Madubugwu, Dave Nwawusi and Chidiebere Onwudiwe have
disastrously moved from Prosecution to Persecution in all its
ramifications; and it may most likely be safe to declare same as
political trial and non-judicially triable!
Further, by the plain and unmistakable language of the Black’s Law
Dictionary: Ninth (9th) Edition 2009; Prosecution is a criminal
proceeding in which an accused person is tried or a conspiracy trial
involving trial of more than one person over alleged commission of
same offence. The respected global law dictionary further says that
the opposite of Prosecution is Persecution; which it defines as a
political or judicial violent, cruel and oppressive treatment directed
towards a person or group of persons because of their race, religion,
sexual orientation, politics, or other beliefs.
The globally respected and widely used law dictionary also provides
the following terms and their precise definitions: Criminal Trial: A
formal judicial examination of evidence and determination of legal
claims in an adversary proceeding; Closed Trial: A trial that is not
open to the public usually because of some overriding concerns such as
a need to protect a child’s anonymity; Open Trial: A trial that is
open to the public; Nemo Judex In Sua Causa: No one or no man should
be a judge in his own case or cause; Audi Altarem Partem: Let the
other side be heard as well; or nobody should be condemned unheard;
Fair Trial: A trial by an impartial or disinterested tribunal in
accordance with regular procedures, especially a criminal trial in
which the defendant’s constitutional and legal rights are respected.
Hearing: A judicial session, usually open to the public, held for the
purpose of deciding issues of facts or of law, sometimes with
witnesses testifying; Fair Hearing: A judicial or administrative
hearing conducted in accordance with due process; Due Process: The
conduct of legal proceedings according to established rules and
principles for the protection and enforcement of private rights,
including notice and the right to a fair hearing before a tribunal
with power to decide the case. Source: Black’s Law Dictionary: Ninth
(9th) Edition 2009.
Constitutionally speaking, the express or literal meaning of (optional
or exceptional) secret or non public trial, provided under Section 36
of the 1999 Constitution of Nigeria is that it is optional and not
mandatory. What is constitutionally mandatory is the trial of accused
citizens in open and fair court in Nigeria. In the context of optional
or exceptional secret trial, which Hon Justice Binta Murtala Nyako
crookedly interpreted, every accused citizen in Nigeria is also left
with a constitutional option or choice to accept or reject his or her
trial in secrecy or outside open court particularly if he or she
reasonably suspects that he or she shall not get fair hearing and fair
trial under such a militarist circumstance.
It is on account of these, therefore, that we strongly advise the
Defense Counsel or Legal Team of Citizens Nnamdi Kanu, Benjamin
Madubugwu, David Nwawusi and Chidiebere Onwudiwe to critically and
strategically rethink and re-jig. That is to say that time is here,
apt and ripe for them to evaluate and re-evaluate the ugly goings on
so as to thwart and scuttle nimbly and courageously all attempts and
efforts of the Buhari Administration to “rot “ their “probono” clients
in jail at all costs. The rethinking and re-jigging under firm
advocacy demand of ours must incorporate the reasonable opinions of
their “probono” clients and other leaders of the IPOB. The Pro Biafra
nonviolent struggle led by IPOB and others has indeed entered advanced
and critical stage and requires commensurate lawful and legitimate
response from the defense team and the IPOB leadership in general.
As the Defense Legal Team are aware, there are no guesswork, gambling,
sentiments and rigmarole in criminal adjudication and law; just as
orbita dicta, not ratio decidendi, are immaterial in judicial
findings. Where it is elementarily clear to the defense legal team
that the Hon Justice Binta Murtala Nyako’s proceedings; likewise other
subsequent proceedings have been brutally operated upon by the Buhari
Administration and laid outside the confines of open and fair trial,
fair hearing, due process, fair prosecution and fair findings; it is
our strong and informed advice that the defence team and their
“probono” clients should publicly back out or withdraw from the
makeshift trial until the reverse becomes the case.
On no account must Citizen Nnamdi Kanu and three others be allowed to
be convicted and despotically jailed by the Buhari Administration
under the prevailing biased, militarist and undemocratic
circumstances. It is far better to remain in despotic custody without
any form of trial than to be convicted and sent to jail under
prosecutorial and procedural vindictiveness and despotism.
IPOB, on its part, should remain sticky to its nonviolent stand at all
times, in spite of State provocations and persecution, but must add
more techniques, tactics and strategies in the overall midwifery of
its nonviolent campaigns. Part of these is the need to engage in
strategic global campaigns to draw the attention of respected
international governments, institutions and personalities over
intensified persecution against it by the Buhari Administration. Its
nonviolent campaigns must be taken beyond the confines of surface
approach; synchronous and asynchronous web conferencing and radio/web
jingling and sarcasms; to strategic and critical approaches grounded
in information numeracy and literacy and letters of the law.
On our part, we renew our earlier call and reminder to the authorities
of the Human Rights Watch, USA and their research team in Nigeria that
the world and Nigerians still await their reportorial position on
indiscriminate killing and maiming of unarmed and nonviolent Pro
Biafra Campaigners by the Buhari Administration since July/August 2015
as well as indiscriminate arrest and long detention without trial of
hundreds of IPOB members and supporters by SSS, police and soldiers.
To convince Nigerians and international watchers that its Nigerian
research team headed by a female South-westerner; are not caught in
the web of ethnic bias, the world respected rights watchdog should toe
the commendable line of Amnesty International, UK, just as it (HRW)
did in the Zaria Shiite Massacre of December 2015.
Signed:
For: International Society for Civil Liberties & the Rule of Law (Intersociety)
Emeka Umeagbalasi, Board Chairman
Mobile Line: +2348174090052
Email: info@intersociety-ng.org
Website: http://www.intersociety-ng.org
Signed:
For: Southeast Based Coalition of Human Rights Organizations (SBCHROs)
1. Comrade Aloysius Attah (+2348035090548)
For: Civil Liberties Organization, Southeast Zone
2. Comrade Peter Onyegiri (+2347036892777)
For: Centre for Human Rights & Peace Advocacy
3. Comrade Samuel Njoku (+2348039444628)
For: Human Rights Organization of Nigeria
4. Engineer Rufus Duru (+2348037513519)
For: Global Rights & Development International
5. Comrade Chike Umeh ( +2348064869601)
For: Society Advocacy Watch Project
6. Obianuju Joy Igboeli, Esq. (+2348034186332)
For: Anambra Human Rights Forum
7. Comrade Alex Olisa(+2348034090410)
For: Southeast Good Governance Forum
8. Jerry Chukwuokoro, PhD (+2348035372962)
For: International Solidarity for Peace & Human Rights Initiative
9. Mr. Tochukwu Ezeoke (+447748612933)
For: Igbo Ekunie Initiative (Pan Igbo Rights Advocacy Group)
10. Comrade Vincent Ezekwume (+2348171793911)
For: Civil Liberties Organization, Anambra State Branch
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