Nigerian Justice: Land where punishment comes before conviction, by Lloyd Ukwu and W. Bruce DelValle

0
58

It is unacceptable in a civilized and free society to punish someone before or without conviction. That is exactly what is happening repeatedly in Nigeria, where political prisoners are thrown into jail for many years without trial or bail. Two scenarios would naturally unfold in a trial: conviction or acquittal. What happens if an accused, but innocent man in the eyes of the law, who has been incarcerated for many years without bail eventually gets acquitted after serving time in jail already? Where is justice? Or if the incarcerated, yet innocent man is convicted but sentenced to less than the term he has already served? Justice is again sullied.
In Nigeria, as elsewhere, a sense of confidence in the judiciary is essential to maintaining the ordered liberty for a free people. Three (3) things will ultimately unravel the fabric of a society and destroy confidence in the Courts, while doing incalculable damage to the people:
(1) When people come to believe that judicial inefficiency and delay will drain even a just judgment or conviction of its value;
(2) that people who have long been exploited in the transaction of daily life and commerce come to believe that courts cannot vindicate their legal rights from crime, corruption, physical violence, fraud and over-reaching by the government or one another; and,
(3) that people come to believe that application of the law cannot fulfill its primary function of providing protection to the people and their families in their homes, at work, and in public.
Judicial inefficiency and delay are assuredly one of the primary causes of decay in any nation’s judiciary, and Nigeria is no exception. The surest way for a society to crumble is from the rot caused by injustice and a denial of liberty, fundamental fairness and due process of law.  In jurisprudence injustice is simply defined as lack of fairness. Whenever justice is absent, injustice takes over. As the Great American Civil Rights leader Dr. Martin Luther King said: “Injustice anywhere is a threat to justice everywhere”. An unjust act breeds corruption. In fact, injustice is a form of corruption. Western jurisprudence believes that it is better to let an accused person to go free than to punish an innocent person.
The above scenario is basically the reason a lawful society prefers an atmosphere where law is allowed to rule. The Rule of Law assumes that there are a set of rules set well in advance, not retroactively, to guide behaviour in the society. The rules must not be made after the fact and must not be made with the understanding that they will be ignored or disregarded.  The will of the people must be expressed in its laws and the will of the people must be enforced and protected. The laws must be obeyed by all of the people, without regard to social status, wealth or strength of might or arms.
A major difference between a military or civilian dictatorship and a democracy is dictatorships arise based upon a real or imagined threat to the Nation from a fabricated or actual national emergency, with the stated excuse of “protecting the People” through disregard for due process. The purposeful lack of adherence to the Rule of Law in a dictatorship is contrasted with the Rule of Law in a democracy. Dictatorships are always illegitimate because they are always borne from illegality and disregard of the Rule of Law.
So, what exactly is this often-misused cliché, the Rule of Law? Black’s Law Dictionary defines it as “the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws”. In contrast, when military dictators fall, the democrats who follow them must try to restore the Rule of Law. It is assumed that Nigeria is a democracy, therefore the Rule of Law must be fully restored.
A democracy cannot exist without respect for the Rule of Law. There must be respect for the constitution and a willingness for all to comply with the dictates of the law and the constitution. Weak or powerful, rich or poor  – all are equal under the law. For example, could you imagine the mess and chaos that would have ensued if Alhaji Atiku Abubakar had decided to ignore the Supreme Court judgement in the 2019 Presidential election. Yes, Atiku disagreed with the judgement but accepted the outcome because he foresaw the desecration of the law of the land if he had refused to accept the judgement as he did. Atiku recognized that the law applies to him and  that any efforts to obtain justice must always be with and through the law. You cannot have justice if it is obtained through illegal means.
One of the stalwart pillars of democracy is the adherence to the doctrine of the separation of powers which allows the three branches of government some autonomy and independence from one another. In this arrangement the courts interpret the constitution, the legislature makes laws and the executive branch executes them. Pursuant to its duty to interpret the laws, the orders and edicts of the Judiciary are enrobed with the full force of law and cannot be ignored by the executive branch. A Court’s orders become the law as a means of preserving the sanctity and respect for the law. Otherwise chaos results.
As regards bail, the Nigerian Constitution in Section 36; subsection 5, guarantees the presumption of innocence until otherwise proven. And it must be of the highest standard, beyond reasonable doubt. Bail is a manifestation of the cherished concept of the presumption of innocence. The United States Supreme Court has held that in determining whether to grant bail or not, two things must be considered, namely, risk of flight or danger to the community. More prominently, the Nigerian Constitution in Section 35, subsections 4a and b reference the impact of granting or denying bail in Nigerian criminal prosecutions.
Lord Gladstone spoke the truism that is the foundation of British and American Law arising from the Magna Carta in 1215 and Biblical Scripture two (2) millennium prior: “Justice delayed is justice denied”. Indeed, this concept of “Speedy Trial” has been enshrined in English law for centuries and adopted as a fundamental right in the United States in the Sixth Amendment to the U.S. Constitution’s “Bill of Rights”. Five centuries after the Magna Carta, Sir Edward Coke wrote that England sought to ensure that prisoners would not “be long detained, but at their next coming have given the prisoner full and speedy justice”, thusly establishing the right to a speedy trial as a bookend to a fair trial. In essence, a speedy trial is an expression of due process. More conclusively, the right to a Speedy Trial is enshrined in the Nigerian Constitution, Section 36; subsection 4. Indeed, the right to a reasonably swift trial is perhaps the strongest of protections against the excesses of governmental power against its citizens.
Recognition that the arrest and extended pretrial incarceration of an accused is illegitimate is a concept that Buhari Administration has been slow to grasp. The current Administration routinely flouts the granting of bail by the Nigerian Courts. These lawful judicial orders and edicts are routinely disobeyed and ignored by the current Administration. The Buhari Administration chooses to abandon the Rule of Law and pursue injustice and unfairness via the continued unlawful incarceration of its political enemies without trial and in defiance of the law. Whatever unlawful act these men may someday be convicted of, if any, as most are likely innocent men caught in a political snare, any such conviction is illegitimate, tainted and poisoned by the illegal acts of the Government in beginning and unlawfully continuing their detention.
This bastardisation of a civilised society is what one would expect from the regime of Idi Amin and his dictatorial ilk rather than what the People of Nigeria and the World have a legitimate right to expect of the Federal Republic of Nigeria. The current Administration is undeniably acting contrary to the Rule of Law and leaving due process fatherless in Nigeria.
Further, the Nigerian Constitution again provides the answer, yet no one listens. The Nigerian Constitution, Section 36; subsection 4a mandates that any person that has been arrested and detained for more than two (2) months without trial must be brought before the Court within not more than two (2) days and released pending trial. Speedy Trial is a fundamental right in Nigeria that must not continue to be ignored.
Fundamental fairness and due process demands that all charges against an incarcerated person who has been denied a Speedy Trial must be dropped in order to avert manifest injustice born of the bastard charges against them and their resulting illegitimate incarceration. That is the rule in the United States and in Britain. Many incarcerated in Nigeria have already served a jail term that approximates the beginning of the current Administration – over four (4) years. While many of these Nigerians are well known, some are not. Many may not be innocent; however, many are without guilt – especially the most well-known. Punishment before getting to the guilty or innocent phase is not known to law. The release of incarcerated and untried prisoners for violation of the Nigerian Constitution and the bedrock principle of justice and due process embodied by the Speedy Trial clause is a small price to pay. In fact, the Nigerian Constitution Section 35, Subsection 6 is on point and provides a remedy to those that are unlawfully arrested and detained in the form of compensation and a “public apology from the appropriate authority or person; and in this subsection, “the appropriate authority or person” means an authority or person specified by law”.
Rather than extracting the nation’s wealth from Nigeria’s coffers in recompense for the wrongs, dropping all charges against these prisoners will be the President’s best attempt at legitimizing, but not excusing, the manifest injustice resulting from long and malicious incarceration.  This could be achieved either through nolle prosequi or a direct Presidential pardon. It would be injustice not to do so. In the United States of America, the pardon of Scooter Libby and also Jack Johnson both by President Donald Trump were calculated to be the only reasonable way to bring justice and fairness to these two.  Although pre-conviction pardons are uncommon, they are extant. President Gerald Ford of the United States of America pardoned President Nixon before he was even charged with a crime. President Jimmy Carter also pardoned all Vietnam War draft dodgers before any were charged. Last year, President Trump pardoned Arizona Sheriff Joe Arpaio before he was sentenced. Trump also pardoned Matthew Golsteyn before he was convicted by a military court for killing a Taliban bomb maker, resulting in all charges being dropped.
In Nigeria, there has been recent steps in this direction through the release in the past few weeks of Col. Mohammed Sambo Dasuki, Shi’a Muslim cleric Sheikh Ibrahim Yaqoub El Zakzaky, and Omoyele Sowore, publisher of the Sahara Reporter. Dasuki and El Zakzaky have been detained in prison for more than four (4) years. The initial arrest and continued incarceration without trial of each of these political prisoners was illegitimate and unlawful.  The question becomes: “How can an illegal act be used to determine and enforce the law? ” The answer is obvious. It cannot. Dasuki and El Zakzaky were granted bail on numerous occasions. Dasuki was granted bail by four different High Court judges in Nigeria and the ECOWAS Court, all of which lawful orders were ignored by the current Administration. Neither were released in obedience of any of the numerous court orders, but by the federal government which is the executive branch.
It stretches credibility to even suggest, much less believe, that the current Administration awoke in mid-December and suddenly decided to start obeying the Courts and enforcing the law as regards these men. The actions of the current Administration in releasing Dasuki, El Zakzaky and Sowore, who has since been rearrested, cannot be seen as the expression of  the regular duties of the Nigerian Executive Branch – unless the release is to be a considered a presidential pardon. That is the only normal and reasonable explanation for the Buhari Administration’s flip-flop action.
In this case, it must be true that the illegitimate arrest and incarceration of these men has been cured for the short term – the law has again been adopted and legitimised by the Federal Government. But, the   government does not get a “do over” reset by simply doing what should have been done over four (4) years ago and every day since. Simply releasing an incarcerated innocent man awaiting trial after many years of pretrial incarceration only to continue to await trial is cruel and unusual punishment The People of Nigeria have a right to properly hope and expect that in the interest of society’s legitimate interests in fairness and preservation of due process expected from the Federal Republic, that in cases such as this all charges should be dropped. The illegitimate incarceration of an accused Nigerian for an extraordinarily long number of years cannot and should not be allowed to stand as a matter of policy. A just and speedy trial is a fundamental freedom and an essential component of due process and justice itself.
Again, injustice is the absence of fairness. These wrongfully imprisoned men can never receive fairness or due process for, in the case of Dasuki and El Zakzaky and others, more than four (4) years of unlawful and illegitimate incarceration as men presumed to be innocent men in the eyes of justice and Section 36; subsection 5 of the Nigerian Constitution. Vindication of the rights of all Nigerians is brought into question by these acts of injustice and the fabric of society is torn. Accordingly, the government must remedially drop all charges against them because it would be unjust not to do so.
Curing the injustice meted against Dasuki, El Zakzaky and Sowore can be rightfully, and perhaps proudly, considered the sole justification for the president’s grant of pre-conviction pardon just like President Trump’s pardon of Scooter Libby and Jack Johnson, the great African American heavyweight boxing champion who was incarcerated for consorting with a white woman. These men, most notably Dasuki and El Zakzaky, have been the victim of illegal acts in flagrant violation of the Nigerian Constitution and the Rule of Law since their arrest and extended detention. The charges against them are not lawful; their continued detention has been unlawful, and any trial will be illegal and cannot be rehabilitated into legitimacy.
The charges against these men were born a bastard child and the illegitimacy of these criminal charges can never be legitimised. Dismissal is the only cure for this cancerous miscarriage of justice. Elsewise, it is as though the great African-American thinker and philosopher Frederick Douglass were speaking to Nigeria in 2020 when he said: “Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organised conspiracy to oppress, rob and degrade them, neither persons nor property will be safe.”
To those that seek solace in the atavistic, but increasingly platitudinously wan cry of “national security” as an excuse to continue to deprive these men of their fundamental rights, due process and liberty through further illegitimate incarcerations and prosecutions thereby soiling the Nigerian Constitution, the sage words of Ben Franklin are recalled: “Any society that would give up a little liberty in exchange for security will deserve neither and lose both”.
Nigerians and Nigeria deserve better. These charges must be dropped, and the Constitution of Nigeria restored to its rightful place as more than an ornament or a dead letter.
• Lloyd F. UKWU is a Nigerian international legal practitioner with over 30 years of practice in USA (Washington DC) and Nigeria. Holds BA (political science); MPA (public policy), JD (international law) all from Texas Southern University, Houston Texas, LLM (international legal studies) from Washington College of Law, Washington DC. ; BL(Nigerian Law School). Managing, International Law Group, Chartered, Port Harcourt.
• W. Bruce DelValle is a constitutional law, technology law, and international law litigator and founding member of the Washington, D.C. litigation firm Fein & DelValle PLLC.  He is a native Texan who grew up on the Gulf Coast of Florida, graduated from Pennsylvania State University, and worked as a nuclear power engineer prior to graduating cum laude from Washington and Lee University School of Law.

LEAVE A REPLY

Please enter your comment!
Please enter your name here