“The recently released looters’ lists by the Federal government led by President Muhammed Buhari is not just unconstitutional but violently offend sub judice rule that protects the integrity of the courts.
Ours is a democracy anchored on rule of law, separation of powers and checks and balances. The three arms of government vis a vis the legislature, the executive and the judiciary have their cut out functions and act as checks and balances on one another. While the legislature makes laws, the executive implements the laws and the judiciary interprets and punishes offenders of the laws. These functions are elaborated in sections 4, 5 and 6 of the 1999 Constitution (as amended)(hereby refers to as ‘the Constitution’). By virtue of Section 6(6)(a) of the Constitution, the jurisdictional power to determine the guilt or innocence of any legal personality charged with a crime is solely vested on the judicial courts and not on the executive or any other person. Even when a person is charged to court, section 36 of the Constitution protects his right to fair hearing and fair trial.
Furthermore, no matter how grave or distasteful an offence is, the accused is still presumed innocent by the authority of section 36(5) of the Constitution. The Section (36(5)) provides that: ”every person charged with a criminal offence shall be presumed to be innocent until he is proved guilty.” It therefore follows that the persons mentioned in the Looters’ Lists are still innocent in the eyes of the law. The duty of the executive is to diligently prosecute accused persons in accordance with the law and not to unilaterally declare them as corrupt.
In the other hand, when a matter is in court or anticipated to be in court, it is termed to be ”Sub Judice”. The word sub judice is a Latin word meaning ”under judgment” or in literal term means ”under judicial consideration”. The sub judice rule is a principle under the law of contempt of court. The sub judice rule is to the effect that it is the duty and function of the court to deal with legal issues before it. The basis for this rule is to protect the authority, independence, image and integrity of the courts. Therefore, when a matter is in court or expected to be brought to court, no media trial or public statements that impugns on the authority of the court should be made by the executive or any other person. This led the English court to hold in A.G. v TIMES NEWSPAPERS LTD (1972) 3 ALL ELR p.1136 at p.1144 where Lord Reid opined thus:
“I think that anything in the nature of prejudgment of a case or of specific issues in it is objectionable not only because of its possible effect on that particular case but also because of its side effects which may be far reaching.”
Though section 39(1) of the Constitution provides that “Every person shall be entitled to freedom of expression including freedom to hold opinions and to receive and impart ideas, and information without interference. Section 39 (3) however created an exception by providing that nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society (a) For the purpose of maintaining the authority and independence of courts.” This is where the sub judice rule is firmly rooted in our legal jurisprudence. .
Furthermore, the criminal law criminalizes utterances that prejudice the authority of the court when a matter is sub judice by providing in section 133(1&9) of the Criminal Code Act, Cap C38 of the Laws of the Federation of Nigeria that: “any person, who while a judicial proceeding is pending, makes use of any speech or writing, misrepresenting such proceeding, or capable of prejudicing any person in favour of or against any party to such proceeding, or calculated to lower the authority of any person before whom such proceeding is being heard or taken; or commits any other act of intentional disrespect to any judicial proceeding or to any person before whom such proceeding is being heard or taken, is guilty of a simple offence and liable to imprisonment for three months”.
As primary, simple and comprehensive as these laws are, it is still regrettable and surprising that they are constantly being violated and abused by the executive mainly for political expediency.
An example of such an abuse occurred on the 21st of March 2017, when Justice Gabriel Kolawoleh of the Federal High Court suspended the corruption trial of Military Assistant to former National Security Adviser, Colonel Sambo Dasuki (rtd), Colonel Nicholas Ashinze by the Economic and Financial Crimes Commission over an alleged falsehood and media trial engaged by the anti-graft agency against the military officer.
Justice Kolawole in a short ruling held:
“It is unfair for EFCC as a complainant in this trial to resort to self-help by engaging the defendant in the media trial at the same time in the court trial.
“If you want to try the defendant in the media, you have to limit yourself to the media. You have to stop misleading the public in the fact of this trial.
“Let me say it for the sake of emphasis that EFCC must stop the use of journalists to distort proceedings in my court. You cannot be engaging in two trials: one in the court and one in the media at the same time…”
As if the judiciary had a premonition of the current sad events, the Hon, Chief Justice of Nigeria on 10th of January 2018, admonished and cautioned the public against making prejudicial statements on matters before the court. The Hon. CJN in directing judges to exercise their contempt power on unguarded statements that impugn on Courts’ integrity stated thus:
“Attention of the Honourable, the Chief Justice of Nigeria (CJN), His Lordship Hon. Mr. Justice Walter Samuel Nkanu Onnoghen, has been drawn to the emerging and continued practice of discussions of matters that are sub judice in the print and electronic media, such as the issues concerning the Anambra State Central Senatorial District dispute. The CJN wishes to remind the general public that it is Contempt of Court for anyone to discuss any matter pending in any Court of Law in the country. The punishment for Contempt may include a term of imprisonment.”
Despite these judicial remarks and cautions especially by the Hon. CJN, so much energy, time and resources was dissipated by the executive through its Minister of Information, Lai Muhammed to publish the so called looters’ lists. By publishing the list, the integrity of the judiciary has not only been impugned but questioned by the action of the Minister who asserted the guilt and culpability of persons named therein. This is tantamount to self help, its a pure case of the government taking the laws into its hands. What then happens if the courts later found the ‘looters’ not guilty? How would the ‘not guilty verdicts’ be viewed or accepted by some members of the public who have been made to believe on the culpability of the ‘looters’.
It is suggested that the government should withdraw the so called Looter’s Lists, apologise to persons concerned and step up investigation and prosecution to really deal with the menace of corruption. Anything apart from this will amount to fighting corruption in ways that offend the extant laws of the land. Such does not yield any positive result.
Our courts should also exercise their contempt power to deal with these assaults on their authority and integrity.
We will be pushing our democracy to the precipice when its stabilizsing factors – Constitution, separation of power and rule of law – are treated with scant regards by our political actors.
Abuja based Legal Practitioner