By Dr. Alex A. Izinyon, SAN
The thematic scope of the topic I was given is the prosecutor’s perspective on the issue of counter-insurgency, the quest for human right, whether it is a distraction or sine qua non.
At first I was jostled because I am sandwiched between two worlds. First as a defence counsel in respect of many criminal matters and as a prosecutor in some criminal prosecutions. I then asked myself, where do I lie or stand? This scenario I found myself reminds me of the animal called bat, a nocturnal mammal capable of sustained flight with membranous wings between the fingers and limbs. It has wings which make it function as an animal in the air territory and two functional legs as an animal on ground territory when on land.
When it was confronted with conflict by land animals arguing that it belonged to the air region, abode in the trees as it has extended wings, but on the other hand the air animals confronted it to go down to earth as it displayed its functional fingers and limbs each time it is in the air and so belongs to the land. The bat had an answer already. It retorted that, it knew the secrets of both sides and what each side should fight for, is how to make it not to use either its wings or its extended fingers and limbs which was not possible. So I belong to the two worlds, but I am not a bat. I propose to deal with this subject matter in this fashion:
· Introduction, terminologies and scope of a Prosecutor
· Constitutional safe guides on human rights in Nigeria.
· Dramatic illustrations
· Balancing of rights vs. State interest.
· Neither detraction or sine qua non quo va dis
There is no doubt that the topic is in the front burner in recent discourse following the insurgency and its allied catastrophes in Nigeria. The crux is where to draw the line between counter insurgency and the right of the accused persons in the process.
Permit me to narrow this down to the areas of prosecution and trials. This is because investigation must have been completed, viz obtaining the relevant statements and evidence now ready for the prosecution of the alleged offenders.
Insurgency: For our purpose, derived from the noun insurgent denote and connote rebel or revolutionary, adjectivally it means rising in active revolt, relating to rebels.
Counter: Simply put is a thing which opposes or prevents something else.
Prosecutor: A legal officer who represents the State or Federal Government in criminal proceeding.
Put in literary perspective, the focus of the topic would be opposing rebels or revolutionary or revolt against government order by the prosecution vis-à-vis, consideration of the human rights involved.
In this discourse, insurgency includes all such subversive actions, insurrection, renegade, agitators, revolutionist, anarchism, terrorism, freedom fighter, rebel, mutinous and seditions.
The Prosecutor has a duty to prosecute the case of the State. He is not a persecutor but a firm stickler to justice against those who foul the peace of the State, with available evidence who must face justice according to law. Time and space will not permit us to delve into the evolution of the State and the jurisprudential crescendo from Thomas Hobbes, (The Leviathan) (1651) where man to man is a wolf or animal, and rendering the life of man, “solitary, poor, nasty, brutish and short” through to John Locke to J. J. Rousseau all on Social contract theory. The aggregate of these theories is that the State is a human creation than result of contract. However the “right” of “human right” which is traceable to divine origin has now been settled constitutionally by modern states and given legal imprimatur by the United Nations’ (UN) declaration on human rights.
CONSTITUTIONAL SAFE GUARDS ON HUMAN RIGHTS IN NIGERIA
The first underling principle of where to draw the line whether the quest for human right is a detraction, or sine-qua non is to consider the constitution of safe guards for the human rights and the scale of justice. For relevance here on prosecution and trial are the provisions of Chapter 4, of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). See Sections 33, 34, 35, 36, 37, 38, 39, 40, 41, 43 & 44 of the 1999 Constitution (as amended). These fundamental rights provisions especially Sections 37, 38, 39, 40 and 41 have restriction and derogation provisions.
“Nothing in section 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society
The tension here is the agitation for strict compliance by the human rights agitators in the trial and prosecution of insurgency cases by the State and the States insistence that she must be allowed to use all the legal apparatus to institute, maintain and prosecute the alleged offenders without any qualms or detraction from the human rights trumpeters. In this regards the human rights grouse is that all these constitutional safe guides must be applied insisting that justice rushed is justice crushed. Cicero, the 1st Century BC Roman statesman, orator and writer once said: “Extreme Justice” is Extreme Injustice”.
They always find umbrage in decisions of court to support this. See the cases of OGLI OKO MEMORIAL FARMS LTD V. N.A.C.B LTD (2008) ALL FWLR (PT. 419) 400 AT 418 PARA. E (SC); ASHIRU V. AYOADE (2006) 6 NWLR (PT. 976) 405 AT 425 TO 426 PARAS G – A (CA).
On the other hand, the State as anchored by the Prosecutor will stick to the mandate, justice delayed is justice denied. Certainly they find support on this from decisions of superior Courts. See the cases of AMADI V. NNPC (2000) FWLR (PT. 9) 1527 AT 1543 PARAS F. (SC); DAPIANLONG V. DARIYE (NO. 2) 2007 ALL FWLR (PT. 373) 81 AT 131 – 132 PARAS. E – A. (SC)
This is the dilemma, the Sword of Damocles. This is the crux of this discourse. How do the State discharge her prosecutorial responsibility without infringement on these entrenched rights in prosecuting the alleged offender, and how should the alleged offender see the State in this exercise without crying wolf when there is none all in guise to use human rights instrumentality under the guise that it is a sine qua non to human rights in the ongoing trial.
This safe guard theory reminds us of the re-echoing of those immortal words of Chief Justice Cardoso of the Supreme Court of USA when he said:
“We must always take care to safeguard the law against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, and the scorn and derision of those who have no patience with general principles.”
The tension between freedom of the individual and security of the State is not peculiar to Nigeria, alone.
Lord Denning MR put it thus in England:
“There is a conflict between the interests of national security on the one hand and the freedom of the individual on the other. The balance between these two is not for a court of law. It is for the Home Secretary. He is the person entrusted by Parliament with the task. In some parts of the world national security has on occasion been used as an excuse for all sorts of infringements of individual liberty. But not in England. Both during the wars and after them successive ministers have discharged their duties to the complete satisfaction of the people at large. They have set up advisory committees to help them, usually with a chairman who has done everything he can to ensure that justice is done.
They have never interfered with the liberty or the freedom of movement of any individual except where it is absolutely necessary for the safety of the state.” (Emphasis mine)
To nail down the home truth of this tension, permit me to give a dramatic picturesque in a dramatic monologue of a common scenario of the dilemma of a Prosecutor and balance of the accused person’s right at trial. My apologies if it is a boring Law movie as it has been said by Roger Ebert, American Film Critic: “Nothing could be more boring than an absolutely accurate movie about Law.” I disagree with Roger, I bet you this movie will interest you, after all the legal audience here are in majority.
Bomb blast in the early hours of xx day in the city of xz leaving 50 persons dead, several persons injured, 10 policemen confirmed dead, 16 members of S.S.S. confirmed dead.
Act 1 Scene 2:
Investigation commenced, arrest made, vital evidence recovered and obtained for the prosecution. Case ready for prosecution by the State.
Act 2 Scene1:
Accused persons arraigned before the Federal High Court for the offence all bordering on insurgency.
Act 2 Scene 2:
Accused persons pleaded not guilty, remanded in prison custody and case adjourned for trial.
Act 2 Scene 3:
Defence counsel filed motions for bail and various preliminary objections on jurisdiction as well as quashing of the said count charges.
Act 2 Scene 4:
Prosecution objected to these applications vehemently and filed relevant processes accordingly.
Act 2 Scene 5:
The trial court delivered a considered ruling refused the bail applications but ordered accelerated hearing of the case and also dismissed the various preliminary objections.
Act 3 Scene 1:
Dissatisfied , defence counsel appealed against the Rulings of the trial court to the Court of Appeal and meanwhile applied for stay of proceedings at the trial court.
Act 3 Scene 2:
Before the trial court could consider the application for stay, defence counsel are already at the Court of Appeal, informed the trial court that, appeal has been entered and produced appeal particulars, trial court inclined to stay proceedings and proceeding stayed.
Act 3 Scene 3:
The Court of Appeal based on new Practice Direction on such cases as terrorism, treason etc however gave accelerated hearing and concluded the appeal within 2 years dismissing the appeal. Dissatisfied with the decision of the Court of Appeal, defence Counsel Appealed to the Supreme Court, meanwhile the case at the trial court is still in abeyance.
Act 3 Scene 4:
The Supreme Court within another 2 years granted accelerated hearing to the appeal being criminal appeal, delivered Judgment dismissing the appeals and ordering accelerated hearing of the matter before the trial court.
End of the law movie, I hope you enjoyed it and leave the judgment on both sides of the divide to the viewers.
PART 4 AND 5
BALANCING OF RIGHT VS. STATE INTEREST: NEITHER DISTRACTION OR SINE QUANON QUO VA DIS
From the above real trial has not commenced after about 5 years of legal imbroglio and procedural legal wrangles.
Here the prosecutor is put in a fix. He has all the listed witnesses and evidence to prove his case, yet he cannot jump the gun because of the right of the accused persons to fair trial within a reasonable time. See Section 36 of the Constitution. What about the witnesses? If they are not in protective custody, which have not be adequately addressed in this country some may be dead, assassinated, intimidated, blackmailed, all leading to the gradual collapse of the prosecution’s case. Is this part of fundamental right? The above scenario is common occurrence, in our criminal justice system. See the recent case of FRN V. BORISADE (2015) 5 NWLR (PT. 1451) 155. The matter started in 2009, crossed over to Court of Appeal and Supreme Court. Judgment was delivered on 30th January 2015 by the Supreme Court. It took a space of over 6 years on this short flight from trial court to Supreme Court, return leg. This is what happens when the law loses, as pointed by R.F. Kennedy when he said
“Whenever men take the Law into their own hands, the loser is the Law. When the Law loses, freedom languishes”. “Robert .F. Kennedy former U.S Attorney-General.”
There is therefore need to balance the fundamental human right of an accused person as prosecution counsel at trial and the justice of the larger society as the accused person is a part of the larger society. He is a microcosm of the macrocosm.
He is the 1/3 of the legal equation postulated by the famous Jurist Oputa, JSC in the celebrated case of GODWIN JOSIAH V. THE STATE (1985) 1 NWLR (PT. 1) 125 AT 141, PARAS. G -H where he said:
“And justice is not a one-way traffic. It is not justice for the appellant only. Justice is not even only a two-way traffic. It is really a three-way traffic – justice for the appellant accused of a heinous crime of murder; justice for the victim, the murdered man, the deceased, ‘whose blood is crying to heaven for vengeance’ and finally justice for the society at large – the society whose social norms and values had been desecrated and broken by the criminal act complained of.”
The mercurial jurist Nnnami, JSC throwing his weight along this same line of thought pungently ethos thus: “The evidence on which the learned trial judge convicted the appellant, though circumstantial, was overwhelming and conclusive. The deceased was last seen alive with the appellant and this taken together with other facts led to the learned trial Judge to the conclusion he reached and which the Court of Appeal upheld. The facts of such overwhelming evidence it would have amounted to a travesty of justice to discharge and acquit the appellant.
I am reminded that it is not only the accused who demands or desires justice; the victim, sent to his death prematurely in some cases, and always unjustly demands and deserves that justice.”
(Underlining mine) (Page 133, Para. G – H) Therefore it is submitted that as a Prosecutor, the human right of the accused person to fair trial within a reasonable time, remain inviolate and sacrosanct. He owes this duty to himself, the accused person, the State and the larger society.
Where however in quest to obtain these sublime objectives without infringement on the right of the accused person at trial such as insisting on trial within reasonable time and opposing all such legal obstacles placed by the defence counsel to stall or truncate the successful take off.
or prosecution of the accused person by the accused person via counsel, all under the guise of human right in cases of insurgency when the larger society has been held spell bound and in siege, I submit such without any amphiboly is as whole scale detraction and not a sine qua non.
It can only be sine qua non if the object of the insistence is to ensure speedy trial within a reasonable time, access to the accused person, facility for the preparation of his defence.
It is now settled that power corrupts and absolute power corrupts absolutely. Therefore where there is a clear violation of the right of an accused person to fair trial, necessary facilities for his defence and trial within a reasonable time, the human right bingo may be on strong wicket to clear these excesses and absolutism. But where such is not the case but deliberate and calculated gimmicks to delay the trial, through unnecessary adjournments, bogus and spurious objections that lack legal focality and mere shambolism but aim to buy time and “kill the case”, I submit such human rights agitation therefore will be a ruse, distraction, simulacrum and a façade.