Nnamdi Kanu’s Proposed Secret Trial: Justice Binta Nyako Should Not Allow Unconstitutional Secret Trial
With Justice Binta Nyako's determination on the mode of trial for the leader of IPOB Mazi Nnamdi Kanu coming up on the 6th of April 2017 at the Federal High Court 4 in Abuja, we the members of IPOB would like to place the judicial establishment of Nigeria on notice that the integrity of its entire legal machinery hinges on the outcome of this ruling.
It is therefore prudent to remind Justice Nyako and the entire Nigerian public and the world at large that there are existing legal interpretations of the provisions of the constitution of Nigeria regarding the mode of criminal trials in civil courts which cannot be departed from and we quote:
“The provision dealing with fair hearing under section 36 of the 1999 Constitution of Nigeria is for the protection of all the parties to a case the plaintiffs and the defendants alike. It will be oppressive to interpret the provision as conferring a protection on just one of the parties to a case.”
Per Oguntade, J.S.C. in Banna v. Telepower Nigeria Ltd. (2006) 7 SCNJ 182 2283
It is no longer news that on the 13th day of December, 2016, the Federal High Court of Nigeria, Abuja Division, presided over by the Honourable Justice Binta Nyako, delivered a ruling in an application brought by the Federal Republic of Nigeria pursuant to section 232 of the Administration of Criminal Justice Act and section 34 of Terrorism (Prevention) (Amendment) Act, 2013.
The Prosecutor’s application, in the main, sought for the “protection” of the prosecutor’s witnesses who are said to be security operatives. The security operatives (witnesses) are seeking this protection to enable them testify in secret against no less a person than the Worldwide Leader of the Indigenous People of Biafra (IPOB), Mazi Nnamdi Kanu and his co-defendants who were at the time facing various criminal charges verging essentially on treasonable felony, conspiracy to commit treasonable felony and only one person, the second defendant, answering to a minor terrorism charge. It is sufficient to quickly state that at no time during the course of this trial has Mazi Nnamdi Kanu ever been charged with terrorism. Needless to say that the prosecutor’s application was quickly and unconstitutionally granted by Justice Nyako.
WE ASK, WAS JUSTICE NYAKO RIGHT?
There has never been any contention or dispute as to the sanctity of the imperishable right of an accused person to be tried in an open court with the public in attendance under Nigeria’s criminal jurisprudence. This uncontested right of a defendant in a criminal trial is indeed inviolate and immutable and admits of no derogation.
There is no arguing the point that the amended 1999 Constitution of the Federal Republic of Nigeria is the fountain and foundation of Nigeria’s criminal justice administration. By its section 36, public /open trial of persons accused of criminal charges is irrefragably ordained. Indeed, it is the bedrock of the criminal justice system in Nigeria that all persons are equal before the law and are therefore peremptorily entitled to the equal protection of the law. The practice of Justice Binta Nyako eagerly seeking to defend the stance of the prosecution especially regarding the masking of witnesses, runs contrary to spirit and letter of the law.
True indeed, the Terrorism (prevention) (amendment) Act, 2013, by its section 34, provides for the protection of the witnesses in trials of terrorism-related offences. Equally true is the fact that the second defendant only had terrorism count in his charge sheet not Mazi Nnamdi Kanu and the other two accused persons. This provided the springboard for the prosecution to successfully apply for the Court to protect its witnesses. No doubt, the ruling of Justice Binta Nyako granting the prosecutor’s application was equally impelled by the terrorism charge preferred against Chidiebere Onwudiwe and not the IPOB Leader, Mazi Nnamdi Kanu and two other co-defendants. It is instructive to note that Mazi Nnamdi Kanu, Benjamin Madubugwu and David Nwawuisi never had any element of terrorism in their charge sheets. The question becomes, why would Justice Binta Nyako seek to impose a mode of trial reserved for terrorism cases on Mazi Nnamdi Kanu who is NOT answering to any terrorism charge?
Interestingly, it is most sufficient to note that the IPOB Leader, through his lead Counsel, robustly challenged the validity of the charges preferred by the prosecutor against the Defendants. It is noteworthy that on the 1st day of March, 2017, Hon. Justice Nyako saw reasons in the forceful contention of the IPOB Leader and consequently quashed six out of the eleven count charges against the IPOB Leader and others, affirming that there is no prima facie evidence to sustain the spurious charges against the defendants. Chief among the charges quashed by the court is that same terrorism charge against the 2nd defendant Chidiebere Onwudiwe. Based on the prevailing circumstances, the prosecutor amended the charge to reflect the severance of the spurious counts rightly quashed by the court. Consequently, the defendants were re-arraigned on the amended charge.
It therefore stands to reason that the same court which ruled in favour of protecting the prosecutor’s witnesses based on the terrorism charge brought against Chidiebere Onwudiwe only, would now make haste to vacate the said ruling since the terrorism charge which impelled the prosecutor to table the application before the court is now no more. Not vacating that earlier ruling would definitely give the court away as a Kangaroo tribunal reminiscent of the darkest days of military dictatorships.
We hasten to reiterate that the constitutional right of an accused person to be tried in public is unquestionably unassailable and must never, under any circumstances, be abridged or asphyxiated by Justice Binta Nyako's court. We make bold to say that secret trial in whatever form or guise, under the Nigerian criminal jurisprudence, has no constitutional foundation. It is an anathema in every democracy worth its name. What Justice Nyako is attempting to do is to cloth justice in darkness thereby turning her court into a Kangaroo court. The Nigerian Supreme Court has severally warned against this bizarre method.
Justice Nyako should be advised by the Chief Judge of the Federal High Court to heed this:
“The moment a court ceases to do justice in accordance with the law and procedure laid down for it, it ceases to be a regular court to become a kangaroo court.
The reason for all this is that in the end where procedure is ignored justice is usually at a loss; judiciary, in its image, is worsted in the encounter; and the general public for whom the entire drama was meant to serve ends up with a low opinion of the Judiciary. Experience and the test of time have shown that justice has never profited from eccentric or bizarre methods and that painstaking procedural mode have always satisfied the more, the yearning desires of a just society.”
See: BAKARE v. APENA & ORS (1986) NWLR (PT.33) 1
In fact, the Supreme Court was more emphatic when it handed down this warning which we hereby commend to Justice Nyako:
"A Judge will not adopt a method of adjudication, alien to procedural rules of justice upon a plea that he is actuated by the noblest and an impassioned zeal for justice, which propels him into bizarre methods of arriving at that justice, holding as it were, as a justifying Machiavellian principle, that the end justifies the means."
See equally: Alhaji Raimi Edun v. Odan Community (1980) 8-11 S.C. 103
Justice Nyako must draw very hard lessons from history to avoid the pitfalls of the past especially that of prejudice and sentiments in the handling of this extremely sensitive matter before her which has all the potency of making or marring her judicial career.
In signing off this press release, we deem it exigent to graciously put at the disposal of Justice Nyako the immortal and timely dictum of OGUNTADE, J.S.C. in INAKOJU V. ADELEKE (2007) 4 NWLR (pt. 1025) 423 where the erudite justice of the Supreme Court lucidly stated that;
“A Court…must not convey the impression that its judgment is being directed by a desire to heed private or public sentiments. In Onyiah v. Onyia (1989) 1 NWLR (Pt.99) 514 at 532, this Court per Obaseki J.S.C. said that sentiments have no place in the adjudication system. It is in my view that the most unrewarding assignment a Judge could undertake if it tried to give judgment as would please a section of the public. It is like a house built on sand which soon disappears with the approach of the rain. It is argued that even if a judgment is wrong, it is acceptable for as long as it is to public good. That clearly is a fallacy. Public good lies in giving a judgment in accordance with the Constitution of Nigeria and other relevant laws. Public good is an ever- changing phenomenon.”
As 6th April, 2017 draws near for Justice Nyako to rule on the application brought by the IPOB Leader for the court to vacate its earlier ruling on the protection of witnesses, it is hoped that Justice Binta Nyako would not “convey the impression that her ruling is being directed by a desire to heed private or public sentiments”. That, surely, will not promote public good. On the contrary, rather, it would promote anarchy. Public good lies in giving a judgment in accordance with the Constitution of Nigeria which Justice Nyako is under judicial oath to promote and defend without fear or favour, affection or ill will.
Dr. Ikenna Chinaka
Mrs Grace Ukpai