For Nigeria and much of the world around us, it is not in controversy that, on or about 14th September 2017, the Nigerian Army breached Nnamdi Kanu’s home in Umuahia, Abia State. It is also not in controversy that Nnamdi Kanu and other persons, including his family members and visitors, were inside the premises when the army commenced the operations. It was widely reported then how Nnamdi Kanu was on the phone frantically reaching out to people, including the press, from inside the confines of the house. There’s also quantum eyewitness accounts, including photos and video clips.
What appears to be in some controversy is the extent of the breach (or invasion, if you will), the casualties thereof, and the whereabouts of Nnamdi Kanu himself since that date. Subsequent to this incident, Senator Abaribe, Nnamdi Kanu’s principal surety brought an application praying the court to discharge him from his bond obligations. Justice Binta Nyako denied the application, ruling that ‘she was not convinced that Nnamdi Kanu is in custody of the Nigerian army’. But that’s hardly the main issue, as we shall see presently.
In time, Nnamdi Kanu’s lawyers (retained prior to the army invasion), brought an action praying the same judge to order the Nigerian Army to produce Nnamdi Kanu in court. The lawyers, like Senator Abaribe, hinged their arguments on the fallouts of the army invasion, and tagged along the legal doctrine of ‘last seen’ – that, it is the Nigerian Army, as opposed to the sureties, that last ‘saw’ Nnamdi Kanu by virtue of the September 14th invasion (or army’s ‘presence’ at the location); and from which date Nnamdi Kanu has neither been seen and nor heard from. Just recently, the judge dismissed this latest application and proceeded to order the lawyers to be “ready for the case”. With this latest development, it might appear that the matter is settled. But is it?
In the opinion of this writer, the issues presented for determination by the foregoing two applications are in order as they became necessary by Operation Python Dance and its aftermaths which were totally unexpected and unprecedented in the history of Nigeria. And because the issues are unique and of first impression, the lawyers and the sureties have struggled to make a sense of it.
It is so sad to observe how the lawyers and the sureties were having a tough time convincing the judge of what she should have ordinarily taken judicial notice of, and that’s is: it is not in doubt that the army was at Nnamdi Kanu’s house on or about September 12 – 14, 2017; and they were not there as friends but foes and armed to boot. Even the Army chief, General Buratai has admitted such in his record counter affidavit by stating that ‘his men only chased a truck laden with arms and explosives of different kinds into a compound that was later discovered to belong to Kanu and his father’. And at some contemporaneous date, Nigeria’s Minister of Defence, Mansur Ali, had said on tape that the army ‘went to look for him (Nnamdi Kanu) but he wasn’t there’.
Based on the foregoing admissions by the army, the only conclusion any reasonable person can reach as to why the judge is refusing to pin the blame for Kanu’s disappearance on the army is the lack of any hard physical evidence that the army took custody of Nnamdi Kanu in plain view. The key to the workings of the judge’s mind lies in these questions she posed (when refusing to pin the blame on the army) – “Has the applicant placed enough evidence to show that the respondent was the last to see the applicant? Was there any evidence that he (Nnamdi Kanu) was last seen with even one soldier”? Clearly, it did not occur to the court that the bedlam inherent in such military operation could have made it impossible for anybody surviving and escaping the invasion to ‘see’ Nnamdi Kanu being physically taken away. To be sure, it’s not that simple by any ramifications.
But it is much more telling and troubling that the court appeared not to have persuaded by the fact that contemporaneous with that invasion, the army had declared IPOB a terrorist organization, thus effectively declaring Nnamdi Kanu not only a terrorist, but a terrorist leader, an enemy combatant. This declaration, even though unconstitutional, provided a window to the state of mind of the Nigerian army in relation to how it wished to deal with Nnamdi Kanu on sight. It’s instructive that the Nigerian army’s rules of engagement authorized the army to kill terrorists on sight; and if such terrorist is lucky, he would be apprehended by use of unreasonable force which includes shooting to maim. That’s how the army has deals with Boko Haram terrorists.
It’s therefore reasonable to infer that had the army come into contact with Nnamdi Kanu, he either would have been killed; or if lucky, wounded, maimed or taken prisoner. This whole scenario did not require proof ‘beyond reasonable doubt’ as the court alluded, but requires only that there’s preponderance of circumstantial evidence to be drawn from the totality of the army incursion. In other words, it is the army that should bear the burden of proof, not the sureties or the lawyers that did not contrive the invasion.
But leaving all of the above aside for the moment, this writer believes that the most important issue (and yet unmitigated) arising from the said invasion is constitutional, as the invasion directly impacts on Nnamdi Kanu’s right to “fair hearing” as guaranteed under Section 36 of the Constitution. The aspect of his right to fair hearing as being discussed in this context is not his right to fair hearing ordinarily and separately enforceable as a fundamental right but whether his right to fair hearing has been fatally destroyed to the point of making the trial a charade and thus, without more, warranting the dismissal of the charges against him.
The main objective of a trial is the administration of justice in a course and atmosphere as free from doubt or chance of miscarriage as the mere human administration of it can be. Which is why, the Nigerian Constitution took great care to address the rights of the accused (as well as the obligations of the government) in the various sub-Sections of Section 36. For clarity, this Section provides, in pertinent part, that:
“(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing.
(6) Every person who is charged with a criminal offence shall be entitled to-
(b) be given adequate time and facilities for the preparation of his defence;
(c) defend himself in person or by legal practitioners of his own choice;
(d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution”.
The army action against Nnamdi Kanu effectively interfered with the ‘facilities’ he’s entitled to for his defence. Such facilities include the right to freely move about to gather evidence and to go to court without having to fear that he would be shot on sight or otherwise become physically degraded by soldiers primed to believe that he’s a dangerous terrorist on the prowl. In the same vein, his right to be defended by ‘legal practitioners of his own choice’ has been destroyed by the inability of his attorneys of record to contact him since the invasion.
It’s easily evident from the labors of their post-invasion applications that they have not had the benefit of contact with their client. So, how can anyone now say that Nnamdi Kanu will be afforded effective assistance of counsel under such murky circumstances. And how about Kanu’s witnesses? Has the army action not made it impossible that his witnesses are no longer available to testify for him? How possible is it for him to freely meet his witnesses on the same terms and turf as the government is free to do, all in accordance with the Constitution?
On the judicial front, the Supreme Court has held that a hearing can only be fair when all the parties to a dispute are given an opportunity to be heard. If one of the parties is not given an opportunity to be heard, the hearing cannot qualify as a fair hearing. The concept of fair hearing postulates a hearing in which the right is freely exercised and consistent with the fundamental principles of justice embraced within due process of law. Contemplated in fair hearing is the right to present evidence and to confront your accuser. Thus, it implies that both sides be given an opportunity to present their respective cases without any let or hindrance. See Olugbenga Daniel v. Federal Republic of Nigeria. Pray, how can Nnamdi Kanu be expected to freely exercise such right in an atmosphere of being a terrorist eternally hunted by Nigerian army.
The right to be heard is so inalienable that the Courts strain every nerve to protect it and even imply it where a statutory form of protection will be less effective if it did not carry with it the right to be heard. See UBA v. Oranuba. And Effiom v. the State, the Supreme Court held that fair hearing requires ‘unhindered access to court’. Access to court requires that the accused be free from the specter of injury to his limb and liberty – occasioned by the State – throughout the pendency of the trial. With the deadly disposition of the Nigerian army towards Nnamdi Kanu, how can anyone be sure that he would not be shot on sight on his way to court? This is even assuming that he’s in a state or position to attend court.
But, if as it increasingly appears that the judge is foisting a situation that will force a trial in absentia (and revocation of his bail), that too is fraught with a helluva of constitutional questions, which again bear directly on fundamental fairness. The public interest in the proper administration of justice free from doubt or chance of miscarriage requires a defendant to be present at his trial at its commencement or at any rate for some part of it, to ensure that the case of the prosecution was properly challenged and tested, and that there could not be public confidence in the reliability of a conviction if the defendant had not been present at his trial. This right is recognized by our Constitution and all the subsidiary penal statutes.
The discretion of a judge to proceed with a trial in the absence of the defendant is one to be exercised with great care and reluctance. So, there can be circumstances where in the interests of justice a judge is entitled to decide not to proceed, particularly when the defendant has not deliberately absconded to avoid trial. Nnamdi Kanu did not – on his own volition – disappear from the face of the earth, but was constructively ‘disappeared’ by those that invaded his home. A voluntary waiver of the right (or the obligation) to be present at one’s trial requires true freedom of choice.
In turning to the general precepts of fundamental fairness, it becomes hard to discern any principled distinction between continuing a trial in the absence, for whatever reason, of a defendant and beginning a trial which has not in law fully commenced. If, as is arguably accepted, the court may properly exercise its discretion to permit the one, why should it not permit the other? It’s obvious enough that, in a scenario of trial in absentia, the judge – however well intentioned – could not know all the evidence which might be probative of defendant’s innocence. The trial would be no more than a paper exercise almost inevitably leading to conviction. And the task of representing at trial a defendant who is not present, and who may well be out of reach, is of course rendered much more difficult and potentially unconstitutional.
The critical question for the judge to consider is whether Nnamdi Kanu has deliberately and consciously chosen to absent himself from the court. If so, then normally, no doubt, the judge would have to make an express finding to that effect, and would summarize her reasons for the finding. In the present case, the judge has made no such express finding but appears to be drawing towards an equivalent inference that diminishes the true legal and factual impacts of the army interventions against Nnamdi Kanu, who was and still is – by the dint of his bail – a prisoner and ward of the court.
Other collateral but equally important issues the judge needs to consider are these: Whether the army’s action, even though in contempt of court, has robbed the court of its personal jurisdiction over Nnamdi Kanu. How can the court be said to still have personal jurisdiction when it cannot serve the defendant directly but through counsel that is also unable to reach the defendant? It’s also in order to argue that the equitable principle of public policy is at play here – in the sense that it is against the public policy of the Nigerian federation that an accused person – sans a bench warrant or any new charges properly before a court – should have to endure army invasions of his home and person while free on bail. And is it fair to permit the government to benefit from its own wrong or the ignoble role it played in complicating a trial that was on its ordinary course before a high court, a superior court.
Better yet, given that this matter is of first impression and bears substantial constitutional hallmarks as they pertain to the true reach of Section 36 of the Constitution, it will be in order for the High Court to stand down the case indefinitely and consider a ‘reference’ to the Court of Appeal under Section 295 of the Constitution, which provides at Sub-Section (2) that:
“Where any question as to the interpretation or application of this constitution arises in any proceedings in the Federal High Court or a High Court, and the court is of opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the Court of Appeal; and where any question is referred in pursuance of this subsection, the court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision.”
Such ‘reference’ is particularly desirable as it comports with the Administration of Criminal Justice Act, which expressly allows it under Section 305.
Sijuade wrote from Western Nigeria. [email protected]