…declines to allow masked witnesses
…as trial begins March 7
By Ikechukwu Nnochiri
THE Federal High Court sitting in Abuja, on Friday, refused to conduct the trial of the detained leader of the Indigenous People of Biafra, IPOB, Mr. Nnamdi Kanu, who is facing a six-count treason charge, in secret. Trial Justice John Tsoho dismissed the application which the federal government filed through the Director of Public Prosecution, DPP, Mr. Mohammed Diri.
The court equally declined to allow the federal government to mask eight witnesses that are billed to testify against Kanu and t wo other pro-Biafra agitators, Benjamin Madubugwu and David Nwawuisi, who are facing trial with him. Justice Tsoho maintained that section 232 (1) (4 )(e) of the Administration of Criminal Justice Act, ACJA, 2015, clearly specified the kind of cases that secret trial could be adopted, stressing that the charge against the defendants did not fall within any of the classifications.
While refusing to allow the witnesses to be masked, Justice Tsoho said there was need for the court to appraise the demeanour and character of the witnesses through their facial expressions. “This court is swayed towards upholding arguments by the respondents to the effect that section 232 of ACJA does not apply in the instant case.
“Facial expressions constitutes a vital aspect of demeanour. It sometimes conveys more about a person than words. Demeanour is very important and better observed directly through faces than behind masks. “One of the main ground of this application is that the witnesses fear for their safety and has been receiving threat messages through their phone. There was no attempt by the applicant to elaborate on that allegation.
“It is my respectful view that sufficient particulars have not been supplied to that fact. Moreover, the state, being the complainant in this matter, have all it takes to protect the witnesses. “While the concern of the applicant to protect the witnesses is appreciated, it is not all the prayer that can be granted as sought.
“Prayer one seem to have been overtaken as the applicant already supplied the names of the witnesses in the proof of evidence it attached to the charge. “From the list of eight witnesses, only the 5th witness was said to be in Enugu. The eight witness is said to be in NBC Port Harcourt/Enugu. This does not in any way reveal particulars of the said witnesses.
“It is therefore not correct to assert that most of the witnesses came from the same area as the defendants”, the Judge held. However, he re-validated an earlier order the court made on February 9, which permitted accredited journalists, lawyers and family members of the defendants to observe the proceeding subject to the sitting capacity of the courtroom.
“Prayer 5 which is to the effect that the witnesses should wear mask/screen is inappropriate in this proceeding. Such procedure is applicable to trial of terrorism cases whereas the instant case is not such”, Justice Tsoho added.
Nevertheless, he granted that names and addresses of the witnesses would not be made public in any record of the proceedings. The matter has been adjourned till March 7, 8, 9, 10 and 11 for trial. Kanu had vehemently opposed the application by the federal government to conduct his trial in secret. FG had in the application, lamented that all the witnesses billed to testify against Kanu and the two other accused persons, declined to appear in court.
It said the witnesses insisted that they would not testify against the defendants unless their safety was guaranteed. Consequently, government lawyer, Mr. David Kaswe, prayed Justice Tsoho to issue an order protecting the identities of the witnesses by allowing them to either wear facial mask or to testify behind screens. FG equally applied for an order excluding persons except journalists from witnessing the proceedings.
“The measure is to safeguard the lives of prosecution witnesses who live in the geographical region where the defendants come from. Since their arrest, there has been violent protests for the defendants to be released. “The witnesses have already indicated fear to give evidence in view of perceived backlash. My lord, they have categorically informed us that unless they could be guaranteed some form of protection by the court, they would not come to testify.
“In the light is t his, the case of the prosecution will be greatly affected should there be any reason for the witnesses not to come to court”, Kaswe submitted. The application was immediately opposed by lead counsel the defendants, Chief Chuks Muoma, SAN, who argued that it grossly lacked merit. He argued that section 36(4) of the 1999 constitution made no provision for masquerades to testify in a trial involving an alleged act of treason.
“An accused person under our jurisprudence and justice ad ministration must be confronted with his accusers eye-ball to eye-ball. “My lord we operate an accusatorial system of procedure under the common law. Justice must not only be done but must be seen to have been done. “It is not within common sense to malign and accuse someone in public and apply to try him in the bedroom. Having been accused in public we want to also be tried in public.
“We therefore urge this court not to allow masquerades to testify before it. We want to see their faces and ask them questions. As masquerades, how will the court be able to gauge their demeanour and body language? Is it by the rhythm of their dance steps? “The tenets of justice outweigh this application and we urge my lord to reject it. It has no merit whatsoever. Secret trial is for terrorism charge, it is not for the type of offence for which these defendants were charged.
“Secret trial does not apply in a case of treasonable felony or involvement in alleged unlawful society. During the trial we will prove to them that we are not an illegal organisation”, Muoma added. After listening to the parties, Justice Tsoho stood down the ruling on the matter till 2pm. Meantime, Kanu, who appeared relaxed all through the proceeding, wore a white lace with the design on the front pocket depicting colours of the Biafran flag.
Kanu who was hitherto the Director of Radio Biafra and Television, has been in detention since October 14, 2015, when he was arrested by security operatives upon his arrival to Nigeria from his base in the United Kingdom. The defendants were alleged to have committed treasonable felony, an offence punishable under Section 41(C) of the Criminal Code Act, CAP C38 Laws of the Federation of Nigeria.
FG alleged that they were the ones managing the affairs of the IPOB which it described as “an unlawful society”. Specifically, Kanu was alleged to have illegally smuggled radio transmitters into Nigeria, which he used to disseminate “hate broadcasts”, encouraging the “secession of the Republic ofBiafra”, from Nigeria. The accused persons however pleaded not guilty to the charge on January 20, even as the court ordered their remand at Kuje prison in Abuja.