Buhari has killed the case against Nnamdi Kanu and Dasuki

This was clearly a declaration of the applicant’s guilt… prejudged the assessment of the facts by the competent judicial authority. There has therefore been a breach of the assumption of innocence until proven guilty and an act in contempt of court. In that circumstance, any self-respecting Judge should not hesitate in halting the trial and discharging the accused.

President Muhammadu Buhari held his first Presidential Media Chat on Wednesday fielding questions about some of the key issues in the country. He then made some key comments including the following:

On the continued detention of suspected looters and alleged violation of court orders by the DSS:

“You can see the type atrocities that those people committed against soldiers and the country. The former president goes to the governor of the Central Bank and say, ‘give N40bn to so, so, so… And then he fails to account for it and you allow him to go and see his daughter in London while and you have two million people in IDPs, half of them don’t even know their parents. Which kind of country do you want to run?”

“And the one you are calling Kanu. Do you know he has two passports – one Nigerian, one British – and he came to this country without any passport? There are criminal allegations against him and I hope the court will listen to the case.”

The embattled Director of Radio Biafra and Leader of the Indigenous People of Biafra, IPOB, Nnamdi Kanu, is facing criminal trial for treason while Former NSA Sambo Dasuki who is standing trial on a 22-count charge for alleged diversion of funds, misappropriation and breach of trust to the tune of N19.4 billion is currently fighting for bail.

If Buhari is the British PM and made the above statement “[Do you know Kanu brought in sophisticated weapon into the country?”] the prosecution’s case against Nnamdi Kanu would have been irreparably damaged and the court will have no choice than to throw the matter out! While in the case of Dasuki; it will take an exceptionally courageous Judge to grant him bail now that the matter has been foreclosed by the president.

In 2014, remarks made by David Cameron came close to derailing the final stages of the phone-hacking trial after the prime minister made comments about former spokesman Andy Coulson while the jury were still considering verdicts on two charges against him.

Mr Coulson’s barrister wasted no time asking the trial judge to discharge the jury from the case due to Mr Cameron’s comments.

While Mr Cameron’s remarks were not a direct intervention in the same manner as Buhari did yesterday, they were nevertheless capable of affecting the credibility of the defendant. Of course, Mr Cameron was not prosecuted for contempt but Mr Justice Saunders, the judge in the phone hacking trial, considered halting proceedings after David Cameron’s comments on the conviction of Andy Coulson. This followed application made to discharge his jury on the basis that it is no longer possible for Andrew Coulson and Clive Goodman to have a fair trial on the matter.

The matter does end with the law of contempt. Mr Cameron is of course – whether he likes it or not – a public authority for the purposes of section 6 Human Rights Act, HRA. And when the Prime Minister made his ill-advised remarks about Mr Coulson he was bound by the HRA to act in a manner compatible with Convention rights. Article 6(2) of the European Convention on Human Rights guarantees that ‘everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.’

British politicians have traditionally been very careful not to comment on subjudice proceedings, and rightly so.

In New South Wales a serving Premier did comment on active criminal proceedings. In DPP v Wran (1987) 7 NSWLR 616 the NSW Court of Appeal held that Premier Wran was in contempt when he publicly declared that Lionel Murphy was innocent of all charges as the latter awaited a retrial. Mr Wran was fined.

The Court of Appeal noted that it was ‘a serious contempt of court to make public assertions about the guilt or innocence of an accused which have a tendency to prejudice the fair conduct of an impending trial. It does not matter whether the assertion is of innocence or guilt. Either is capable of affecting a potential juror’s mind and of defeating the [right to a] fair trial …  It must be made plain in particular that the courts will not tolerate the deliberate intervention of those in positions of authority who deploy their power and prestige in support of assertions of that kind.’

The European Court has held that comments by politicians on pending criminal cases are capable of infringing Article 6(2). Thus in Allenet de Ribemont v. France [1995] ECHR 15175/89 the Minister of the Interior and the Director of the Paris Criminal Investigation Department identified the applicant as being responsible for the murder of a member of the National Assembly. In finding a violation of Article 6(2) ECHR the European Court held as follows:

36. The Court considers that the presumption of innocence may be infringed not only by a judge or court but also by other public authorities.

37. At the time of the press conference of 29 December 1976 Mr Allenet de Ribemont had just been arrested by the police. Although he had not yet been charged with aiding and abetting intentional homicide, his arrest and detention in police custody formed part of the judicial investigation begun a few days earlier by a Paris investigating judge and made him a person “charged with a criminal offence” within the meaning of Article 6(2). The two senior police officers present were conducting the inquiries in the case. Their remarks, made in parallel with the judicial investigation and supported by the Minister of the Interior, were explained by the existence of that investigation and had a direct link with it. Article 6(2) therefore applies in this case.

39. Like the applicant, the Commission considered that the remarks made by the Minister of the Interior and, in his presence and under his authority, by the police superintendent in charge of the inquiry and the Director of the Criminal Investigation Department, were incompatible with the presumption of innocence. It noted that in them Mr Allenet de Ribemont was held up as one of the instigators of Mr de Broglie’s murder.

40. The Government maintained that such remarks came under the head of information about criminal proceedings in progress and were not such as to infringe the presumption of innocence, since they did not bind the courts and could be proved false by subsequent investigations. The facts of the case bore this out, as the applicant had not been formally charged until two weeks after the press conference and the investigating judge had eventually decided that there was no case to answer.

41. The Court notes that in the instant case some of the highest-ranking officers in the French police referred to Mr Allenet de Ribemont, without any qualification or reservation, as one of the instigators of a murder and thus an accomplice in that murder. This was clearly a declaration of the applicant’s guilt which, firstly, encouraged the public to believe him guilty and, secondly, prejudged the assessment of the facts by the competent judicial authority. There has therefore been a breach of Article 6(2).

Moreover, in Huseyn v. Azerbaijan the Court [2011] ECHR 35485/05 observed that,

226. The Court has consistently emphasised the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of a particular criminal offence. Whether a statement of a public official is in breach of the principle of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made.

I understand Buhari’s frustrations. Let me admit that as a lawyer I like and respect the rule of law and due process. However the Nigeria experience sometimes proves the maxim: the end justify the means.

Take Anambra State for example; when former governor Peter Obi started to demolish the family homes of suspected kidnappers, I was among those that shouted RULE OF LAW against the practice of violating citizens right to properties without following due process. However today Anambra State is largely free of kidnapping

In Buhari’s view, “we have over 2million IDPs scattered all over the country, they sleep out in the cold, eat crap, in dire need of toiletries, catch every infection you can think of, children who have lost parents, parents who have lost kids, people who have lost limbs and lost their faith in humanity. Can you count how many of our men have died in combat? Even the military high command does not know the number! Do you know how many that are injured and will never be the same again? Do you know how many who have over stayed their tour of duty and haven’t seen their families for over a year? Do you know how many of those have died and their bodies not recovered? How many dead that their families haven’t heard of? Bulletproof vests are a combination of Kevlar and steel. Are you aware vests with defects were bought and given to our troops that led to their deaths? What of the drones for reconnaissance that never flew? Cash to fight the war ending up in private accounts while people were being slaughtered in their thousands! People are still being slaughtered! Azazi and yakowa died all because of this war. Our people who have died in the north east, who gives them rule of law and civil liberties? Our dead soldiers don’t deserve rule of law? The ones who might be killed this night don’t deserve rule of law? Our soldiers facing court martial don’t deserve rule of law? Then comes some more lunatics threatening to cause more havoc and you come preaching rule of law? Well I got breaking news: feel free to throw your ‘rule of law’ around, fortunately ‘national security’ trumps it all! Deal with it! If you want to tackle the government, not on Facebook! Go to court!”

Among several dangers of violating rule of law and due process however is that the innocent surfer sometimes unjustly, and this happened in Onitsha Anambra state under Obi where an innocent hotelier suffered unjust violation of his property rights on the false assumption that he was a kidnapper. 

The second danger about violating the rule of law is that it sets a dangerous precedent, injure the innocent and scare away investors amongst other tragedies.

In Blackstone’s formulation – “It is better that ten guilty persons escape than that one innocent suffer”.

Political leaders may have pressing political imperatives that require them to comment on all sorts of matters. However, legal imperatives can sometimes require that politicians, no matter how eminent, suppress their compulsive urge to thrust themselves into the public eye so that justice may be done.

Buhari is unlikely to be prosecuted for contempt. Such proceedings require the consent of the Attorney General, whose boss is err Mr Buhari, but in the context of active criminal proceedings silence really is golden. The Attorney General should at least remind President Buhari of that.

The AG should also remind Buhari that when some of the highest-ranking officers in the federation referred to an accused without any qualification or reservation, as one of the instigators of a crime or an accomplice in that crime. This was clearly a declaration of the applicant’s guilt which, firstly, encouraged the public to believe him guilty and, secondly, prejudged the assessment of the facts by the competent judicial authority. There has therefore been a breach of the assumption of innocence until proven guilty and an act in contempt of court. In that circumstance, any self-respecting Judge should not hesitate in halting the trial and discharging the accused.

VIEWS FROM ABROAD

Daniel Elombah

Daniel@vlssolicitors.com 

+447460770987