By Muhammed Adamu

PROLOGUE
I was just contemplating what subject to write about when my colleague and friend NaAllah Zagga forwarded to my mail box one of many pieces trending on-line on the controversial naming of a dog ‘Buhari’ in Sango-Ota, Ogun State, by one Joe Chinakwe, a trader. This particular piece titled: “NAMING A DOG ‘BUHARI’, POLICE IMPUNITY AND THE LAW”, was written by one Inibehe Effiong, a lawyer who apparently could not hide his indignation that the Police acted on the complaint of what he chose to describe as “an unnamed Mallam” said to be “an alien from Niger Republic”. Dog2

Right there in the opening paragraphs of a supposedly neutral legal opinion written by a ‘lawyer’ who claimed to have no motive other than helping to enrich the jurisprudence of our law, is the use of the derogatory phrase “unnamed Mallam” even when ‘an unnamed resident’ would have been more professionally appropriate. Not to add to the fact that in quite un-lawyer-like fashion, Effiong had also relied on mere ‘hearsay’ to conclude that the person whose complaint led to the arrest and detention of Chinakwe was “an alien from Niger Republic” as if –assuming this was true- an ECOWAS citizen duly resident with us will, by reason merely of that, lose the right to lodge a complaint to the Police in his country of residence.

And not being a lawyer myself, NaAllah still wanted my ‘lay’ opinion concerning this issue. And why not? The ‘law’ by the way is not so much about ‘knowing the law’ as it is about ‘knowing where and how to find the law’. Or so said one of Britain’s most celebrated judicial minds, Lord Denning: that God should “forbid the day that a lawyer should know all the know”, because it is sufficient merely that a lawyer knows “where to find the law”.

The Law

In truth people do -and have the right to- give their pet dogs any names, including those usually borne by humans –like Jegede, Adamu, Okoro or Ekaite. The test of whether they do so in contempt or in reverence of any who bears the same name, will be a strictly a subjective one in the eyes of the law. As Shakespeare would say, “there is no art to find the mind’s construction on the face”. And as with the right to give pet dogs human names, so is the right for humans too –if they wish- to bear any names, including those commonly borne by dogs, -like ‘Jack’, ‘Bobby’, ‘Mark’ or even the more fashionably –even if restrictively- doggy one, ‘Bingo’. Nothing spoil. But what people are not known to do –even though they may have the right to, under the law- is to inscribe the ‘human names’ they have given their pet dogs on both sides of the animal’s body so that whenever they walk the dog around, or conversely in the case of the aged, whenever ‘it’ has the doggy duty to walk them around, people can easily tell by name who the dog is even if they do not know the name of its master. Nor do people, even if with malice aforethought –and especially in a deeply polarised society like ours- walk their ‘dog’ engraved with the name of the President through a community of people by whom obviously that ‘name’ (obviously because that President bears it), is revered possibly to a point of apotheosised liturgy.

The writer cited a “definitive position” of the Supreme Court of Canada in Frey v. Fedoruk where it held that: “Conduct, not otherwise criminal and not falling within any category of offences defined by the criminal law, does not become criminal because a natural and probable result thereof will be to provoke others to violent retributive action”, adding that “acts likely to cause a breach of the peace are not in themselves criminal merely because they have this tendency”. The Court, he said further, stated that: “It is for Parliament and not for the Courts to decide if any course of conduct, which has not up to the present been regarded as criminal, is now to be so regarded.” But in truth the law is what the courts –or judges- say it is and not necessarily what the legislator or the statute says it is. And judges do not pronounce what the law is drawing only from the letter –to the exclusion of the spirit- of the law.

But truth is the law in statute may state what ‘general conduct’ will be criminal and thus subject to the Criminal Code; but it is judges really who determine what ‘specific’ elements will conduce to bring any specific ‘conducts’ within the contemplation of the written law. It is the reason that allied to the apparent power of judges to ‘INTERPRET’ the law, is also the power to ‘construe’ the law –which is to say that besides gleaning meaning from the wordings of the law, judges have an even tougher duty to assemble the disparate elements and spirit of the law in order to ‘construct’ meaning or to discover the intention of the legislature where such is doubtful or where, -by reason of conflicting provision or the absence of provision-, such is not there.

I thought that it is not first to ask whether the Constitution prescribes or proscribes a particular conduct but maybe better first to ask ‘what in the circumstance is likely or most probably to happen as a result of that conduct’! If –advertently or inadvertently- there is no written law prohibiting the lighting and smoking of cigarette in gas station, should it then be a right doggedly to be defended in spite of the potentially dangerous consequences doing so is most probably to cause?

To hide under a nebulae of constitutional rights and guarantees as justification to deliberately and premeditatedly –even if needlessly- conduct oneself in a manner capable of inciting people to violence or causing a breach of the public peace cannot be one of the intendments of any legal system anywhere in the world! Nor does it matter that those likely to be moved to anger or violence by such provocative conduct have no justification too under the law to be so moved. It is sufficient merely that the provocative conduct is needless in the first place –even if it is lawful- and that it is very likely to incite to violence. And maybe it is the reason that ‘provocation’ is one of the many defenses available in law to a person accused even of murder.

Many say that former President Goodluck Jonathan was equally so derogatorily treated by some APC supporters. Morally-speaking   –or arguably legally-speaking too- it was as wrong for any to have done that even then, as it is wrong even now to do so to the incumbent.

Nonetheless it would have been operationally absurd if the Police had gone about arresting everyone who had named his dog ‘Jonathan’ as it will also be today, to arrest all who name theirs ‘Buhari’. But if any previously had named his dog ‘Jonathan’ and had engraved that name on both sides of the body of his dog, and if he had deliberately and premeditatedly walked that dog through a community of people he knew predominantly to be either of Jonathan’s ethnic or political extraction, then it would have been incumbent on the Police to have arrested and prosecuted that person.

Not necessarily because he merely named his dog ‘Jonathan’ but because in his choice of how to celebrate his pet dog’s ‘naming event’ he had fallen into a conduct within the contemplation of Section 249(1)(d) of the Criminal Code which states that: “Every person who, in any public place, conducts himself in a manner LIKELY to cause a breach of the peace, shall be deemed idle and disorderly person, and may be arrested without warrant, and shall be guilty of a simple offence, and shall be liable to imprisonment for one month”.

It is thus preposterous citing as the writer did Section 36(12) of the Constitution which states that:”Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law”, because indeed the offence allegedly committed by Chinakwe does not fall under the category of offences not known to our corpus juris.

The writer also cited the case of Nelson Ohanyere v IGP (in which the Supreme Court espoused the test for determining whether a conduct is likely to cause a breach of the peace) and in which Justice Jibowu said: “The test to be applied is whether the conduct of the accused was such that a breach of the peace MIGHT REASONABLY have ensued”, adding that “the fact that no breach of the peace, in fact, took place is irrelevant.” It is rather mischievous in the instant case of Chinakwe to suggest that the judgement of ‘reasonable likelihood’ of breach of public peace in the conduct of the alleged offender is hinged merely upon naming his pet dog ‘Buhari’ (which they insist is not known to our laws), and not that he conducted himself in a provocative and inciting manner likely to cause a breach of the public peace.

Chinakwe is not being prosecuted for an offence that is not known to law. The offence (not of naming a dog ‘Buhari’) but of ‘conduct likely to cause a breach of the peace is duly ‘defined’ in a ‘written law’, the Criminal Code, and the ‘penalty’ therein expressly prescribed’.

To suggest –as the write did- that what Chinakwe did walking a dog he named and tagged ‘Buhari’ in a predominantly Hausa community in Sango-Ota did not amount to conduct likely to cause a breach of the peace, or that such conduct does not come within the contemplation of Section 249(1)(d) of the Criminal Code, is either cheaply mischievous, reckless or plainly ignorant!

The writer also cited a Canadian case of a man convicted for peeping to look at a woman “preparing for bed” but who was acquitted on appeal on the grounds that his conduct did not come under ‘act likely to cause a breach of the peace’ because ‘the act of peeping was not in itself a crime”. Of course merely peeping at a woman preparing for bed –even where this is expressly legislated against- can only be justification for Police arrest and investigation but not necessarily an act likely to incite to violence the kind that Chinakwe had planned to cause.

Postscript

Nothing by the way should suggest that even naming a dog by a particular person’s name where that action bears proven malice, cannot be stretched to constitute an offence if not under criminal law at least under any of the tort laws with a criminal flavour. The proof of whether calling someone a ‘dog’ is derogatory or complimentary is not to be left strictly to the contemplation of the moral mind to the exclusion of the legal mind. Indecency, for example, which is more a moral vice than it is a legal wrong is one of the many congruent areas around which law and morality overlap –thus making ‘indecent conduct’ both ‘mala in se’ (offensive to morality) and ‘mala prohibita’ (which the law forbids).

And thus Section 231 (2) of the Criminal Code is unambiguous in providing that: “Any person who willfully and without excuse does any INDECENT act in any place with intent to INSULT or OFFEND any person is guilty of a misdemeanor, and is liable to imprisonment for two years”. Even as liberal jurists persist in separating law from morals; or as philosophers attempt to differentiate between illegality and sin, the argument still remains that morals and not strict law should serve as validity criterion for rule of law”. Lord Delvin argued that law should be used “to enforce and uphold the community’s moral standards” because law cannot afford to ignore ‘conducts that provoke wild feelings of reprobation, mixture of intolerance, indignation and disgust’.

This proposition received judicial support in the notorious English case of Shaw v. DPP (or what was popularly called the ‘Ladies Directory’) in which the defendant, Shaw, published a 28-page book advertising the names, addresses, telephone numbers and sexual services of prostitutes. This was not considered an offense, because no such crime was known to law at that time. But Shaw was still arrested, charged and convicted under Common Law for ‘conspiracy to corrupt public morality’. In fact, Shaw’s appeal to the House of Lords failed and Viscount Simons made a landmark statement, orbiter when he said: “In the sphere of criminal law, I entertain no doubt that there remains in the courts of law, a residual power to enforce a supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state”.

The law, he said, “must be related to the changing standards of life, not yielding to every shifting impulse of popular will but having regard to the fundamental assessment of human value and purposes of society”, adding not only that the court is ‘custos morum’ (guardian of morals) but that “there is in that court a residual power (where no statute has yet intervened to supersede the Common Law) to superintend those offences which are prejudicial to public welfare.”

Subscribe to our youtube channel

Disclaimer

Comments expressed here do not reflect the opinions of vanguard newspapers or any employee thereof.