The Lagos State House of Assembly has added a provision to the state’s Administration of Criminal Justice Law (ACJL), abolishing pre-trial media parade of suspects by security agencies. The development has reignited the debate about the legitimacy or otherwise of the age-long practice. Lawyers disagree on the position of the law on this issue. ERIC IKHILAE reports.
On January 14, 1997, the National Drug Law Enforcement Agency (NDLEA) arrested Afrobeat pioneer Fela Anikulapo-Kuti (now late) on the allegation that he was in possession of narcotic substance. The then NDLEA chairman, Major-General Musa Bamaiyi (now late), addressed a press conference during which Fela was paraded before the media in handcuffs.
Shortly afterwards, Fela, through his lawyer Femi Falana (SAN), sued the NDLEA for N100 million, claiming the violation of his fundamental rights to fair hearing, personal liberty and human dignity. He subsequently withdrew the case after the NDLEA reached out to him and discontinued his prosecution before the then Miscellaneous Offences Tribunal.
Police fined for parading suspects
Unlike Fela’s case that did not result in any penalty against the agency, the case of Ottoh Obono, accused by the police in Lagos of being a member of a gang of armed robbers who specialised in car snatching, came with a cost.
Upon Obono’s arrest, the Lagos State Police Command paraded him before the media on October 7, 2009. He was subsequently arraigned before a court which remanded him in custody pending the advice of the Director of Public Prosecution (DPP).
But after reviewing the evidence provided by the police, the Lagos DPP exonerated Obono of having committed any crime. He proceeded to sue the police before the Federal High Court, Calabar, in a suit marked: FHC/CA/CS/91/2009.
In a judgment on July 18, 2011, Justice Chukwujekwu Aneke held in favour of the plaintiff and, among others, slammed the Lagos State Commissioner of Police for parading Obono before the media. The judge awarded N20 million (as exemplary damages) and N50,000 (as cost) against the Police.
Justice Aneke said: “The parading of the applicant (Ottoh Obono) on October 7, 2009 by 2nd respondent (commissioner of police, Lagos State) before a horde of journalists from both the print and electronic media prior to the applicant’s arraignment before a court of competent jurisdiction as a member of a gang of armed robbers who specialises in car snatching and the subsequent publishing of the applicant’s photographs in The Punch Newspaper of Thursday, the 8th of October, 2009 and the airing of same news item on the 9 O’clock Network News Programme of the NTA on the same date, only for the said applicant to be exonerated of having committed any crime by the legal advice of the learned Director of Public Prosecutions of Lagos State after having spent a period of over 10 months in Kirikiri Maximum Prisons, Lagos State on remand, makes nonsense of the applicant’s right to presumption of innocence as enshrined in Section 36 (5) of the constitution off the Federal Republic of Nigeria, 1999 and leaves much to be desired in the administration of justice system in the country.
“The respondents’ conducts against the applicant are totally reprehensible and condemnable and I hereby condemn same without equivocation,” he added.
In yet another case, involving Ndukwem Chiziri Nice, Justice Adebukola Banjoko (then of the High Court of the Federal Capital Territory, but now of the Court of Appeal) faulted the practice of parading suspects before the media prior to their prosecution.
Justice Banjoko held, in the case now cited as – Ndukwem Chiziri Nice v. AG, Federation & Anor. (2007) CHR 218 at 232 – that: “The act of parading him (the suspect) before the press as, evidenced by the Exhibits annexed to the affidavit, was uncalled for and a callous disregard for his person.
“He was shown up to the public the next day of his arrest even without any investigation conducted in the matter. He was already prejudged by the police who are incompetent, so to have such function, it is the duty of the court to pass a verdict of guilt and this constitutes a clear breach of section 36(4) and (5) of the Constitution of the Federal Republic of Nigeria, 1999 on the doctrine of fair hearing.”
Security agencies unrepentant
Despite the above and many other cases, including court pronouncements denouncing the practice, security agencies in the country still engaged in routine pre-trial parade of suspects, one of the most recent being the case of Chidinma Ojukwu, the 21-year-old undergraduate, who was paraded by the police in Lagos as the prime suspect in the death of SuperTV Chief Executive Officer, Osifo Ataga.
Many senior security officials have justified the practice of pre-trial parade of suspects, with a state Commissioner of Police once quoted to have said ‘no law exists that outlaws such practice and that it was meant to reassure the public that they were on top of their game.’
In view of the prevalence of such practice among security agencies, there have been instances where they have gone to the absurd. There was the case of one Mrs Abudu, a factory worker in Sagamu, Ogun State, who was shot dead by the police on December 12, 2008 under unexplained and, in a bid to cover up, the police claimed that the deceased was the head of a robbery gang that had robbed the Sagamu Branch of the FirstBank Plc.
The police proceeded to parade her corpse, with charms and a pistol placed beside and on the body, a claim the deceased’s husband, Mr Abudu, an electrician, rejected and sued.
In a judgment, in the suit marked: Suit No: M/13/2011 – Abudu v. Nigeria Police Forc, the court condemned the killing of Mrs Abudu and the parade of the corpse. It awarded N5 million against the police, as compensation for the applicant – Mr Abudu.
There was also the case of the January 24, 2013 assassination, in Benin, of Olaitan Oyerinde, the former Principal Secretary to the then Governor of Edo State, Adams Oshiomole. Some days after the incident, the police in Edo State paraded a group of people they claimed were responsible. While the public was yet to fully process the information, the State Security Service (SSS) paraded, in Abuja, another set of people it claimed were the armed robbers who killed the deceased.
When the case came before him, the then Chief Judge of the High Court of the Federal Capital Territory (FCT), Justice Lawal Gunmi, described the development as “a bewildering case of one murder, two government agencies and two different culprits.”
Justice Gunmi noted that: “The police and the State Security Service, the two security agencies investigating the murder, paraded two different sets of suspects, a development that has set off speculation that the investigation into the murder was most likely bungled.”
What does the law say?
Advocates of the abolition of the age-long practice of pre-trial public parade of suspects by security agencies have continued to cite both constitutional provisions and case laws to sustain their position.
They often refer to the provisions of sessions 34 and 36 (4) and (5) of the Constitution to insist that a suspect is presumed innocent until pronounced guilty by a competent court.
Section 34 states that every individual is entitled to respect for the dignity of his person and (1) (a) no person shall be subjected to torture or to inhuman or degrading treatment.
Section 36 (4) says: “Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal,” while sub-section 5 provides that “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
There is also the provision of Article 7 of the African Charter on Human and Peoples Rights Act, with emphasis on the need to promote and protect human rights and basic freedoms on the African Continent.
Both the Administration of Criminal Justice Act (ACJA) 2015 and the Administration of Criminal Justice Laws (ACJL) of the various states also contain similar provisions intended to give effects to the various constitutional provisions on the assumption of innocence of a suspect until the reverse is proved.
As a fillip to the position canvassed by abolitionists of the practice, the Lagos State House of Assembly recently passed the amendment to the Lagos State ACJL, including a provision that abolishes the practice of public parade of suspects.
The portion of the recently passed amendment on the issue is Section 9 (a) which states that: “As from the commencement of this law, the police shall refrain from parading any suspect before the media.”
If assented by the state governor, the bill will stop the police from parading suspects before the media.
Falana’s push against public parade of suspects
In an effort to end the practice, Falana sued at the Federal High Court, Abuja, in a suit marked: FHC/ABJ/CS/519/19 and prayed the court, in the main, to issue an order to stop the pre-trial media parade of crime suspects by law enforcement agencies.
Falana listed the Inspector-General of Police (IGP), the Economic and Financial Crimes Commission (EFCC), the Nigerian Customs Service, the Nigeria Security and Civil Defence Corps (NSCDC), the Nigerian Navy (NN), the Independent Corrupt Practices and other related offences Commission (ICPC), and the Attorney-General of the Federation (AGF) as defendants.
He argued that the right of every suspect was guaranteed under Section 36(5) of the 1999 Constitution and Article 7(1) (b) of the African Charter on Human and Peoples’ Rights African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
Falana also contended that by virtue of sections 2 (1) and 2 (2) (b) of the Anti-Torture Act, 2017, the pre-trial media parade of suspects amounted to psychological and mental torture and other various forms of torture prohibited by the Act.
He then prayed the court for a declaration that the media parade, even criminal charges, filed against the suspects in courts of law amounted to prejudging them and violating their fundamental rights to presumption of innocence and against torture as enshrined in the Constitution and the Anti- Torture Act, 2017.
Falana also asked for a declaration that pre-trial media parade of criminal suspects by the respondents has been prohibited by Section 2(xi) of the Anti-Torture Act, 2017, and “an order of perpetual injunction restraining the Respondents whether by themselves, their agents, privies and servants from further exposing criminal suspects to media parade in any manner whatsoever and howsoever.”
Practices in some foreign jurisdictions
Until 2012, Bangladesh was in the same class as Nigeria. It, however, outlawed the practice following a court order in 2012, banning media parade. The order was informed by the parade of a judge, Javed Imam, accused of drug peddling. The order barred the police from producing suspects or arrested persons in any case before the media.
A lawyer, Mark Ukpe, noted that although the parading of suspects before media was not practised in Britain, a variant of such practice currently exists in the United States, called perpetrators walk commonly known as perp walk.
Perp walk is said to be a common practice among American law enforcement agents, whereby an arrested suspect is taken through a public place at some point after arrest, creating an opportunity for the media to take photographs and video of the event.
When parade is allowed by law
As noted by some lawyers, police parade of suspects is allowed in some cases, but not before the media. Such parade, they explained, is only when the identity of the suspect is in question.
In identification parade, the actual suspect is lined with some other innocent people, who have the same height, body build and complexion, while the victim or anybody, who claimed to have seen the suspect during the commission of the crime, would then be asked to identify the suspect among the people on the line up.
As against the one done before the media, this sort of parade is done in the police station in the presence of the suspect’s lawyer, who is required to merely observe while the investigative officer(s) and the victim go about the process.
The Supreme Court, in the case of Freeborn Okiemute Vs. The State, appeal number: No: SC. 501/2012 gave instances where such identification parade is allowed.
Justice Suleiman Galadima (retired), in the lead judgment, delivered in July 2016, noted instances where identification parade of suspect is allowed:
He said: “It must always be borne in mind that an identification parade is not necessary in all cases. It is however, necessary in the following circumstances; where; – (a) The victim did not know the accused before and his first acquaintance with him was during the commission of the offence; (b) The victim or witness was confronted by the offender for a very short time; or (c) The victim, due to time and circumstances, might not have had the opportunity of observing the features of the accused.”
Pre-trial media parade unlawful, say Falana, Akinwumi, Falola
Law experts are divided on the legitimacy or otherwise of pre-trial media parade. While Falana, Babs Akinwumi and Tunde Falola argued that it was unfortunate that despite the express provision of the law and plethora of judicial decisions, security agencies still engaged in the practice, Abubakar Sani and Ukpe think otherwise.
Falana is of the view that apart from violating the fundamental right of criminal suspects to fair hearing, the Federal Government has had to pay huge monetary damages to victims of media parade and trial conducted from time to time by law enforcement agencies.
“To stop the illegal practice we are compelled to call on the Attorney-General of the Federation and Minister of Justice, Mr Abubakar Malami, SAN, to order the arrest and prosecution of law enforcement personnel who engage in media parade, trial and extrajudicial killing of criminal suspects in custody,” he said.
‘Publication of media parade is libellous’
Falana also has a word or two for the media.
He argued that the report of the parade of criminal suspects, including the publication of their photographs is “libellous in every material particular,” adding that the publishers and owners of media organisations should stop colluding with law enforcement personnel in the crude violation of human rights.
“In view of the constitutional protection of the fundamental right of all citizens to presumption of innocence, we call on any criminal suspect, who is paraded by any law enforcement body, to seek redress in a court of law,” he said.
Parade should be post-conviction – Akinwunmi
Akinwumi supports the Lagos State House of Assembly’s position on the issue, as contained in its recent amendment to the state’s ACJL.
His words: “Firstly, there is presumption of innocence enshrined in the constitution as well as other regional and international rights instruments. Accusation is not conviction. It is a popular saying among the Yoruba and I believe, it also applies in other African tribes, that ‘people who heard it initially would not hear the outcome.’
“They parade suspects with vigour, but never publicise their acquittal. An innocent person, wrongly accused and later acquitted, would have been derogated and subject to ridicule in both the electronic (including social) and print media. Some would keep this tarnishing record for life.
“Such a wrongly-accused person, who is later acquitted, may and will never have the opportunity of the publicity of the latter acquittal. I, therefore, opine that it is a very good thing to do (ban on media parade) to prevent the demonisation of the innocent and wrongly accused. The security agencies should rather wait post-conviction,” Akinwumi said.
Public parade of suspects akin to pre-trial conviction – Falola
Falola argued that public parade of suspects by security agencies before arraignment and trial in is akin to ‘pre-trial conviction’ in the court of public opinion, because at this stage, the security agencies have pronounced a verdict of guilt upon the suspect, contrary to the provision of the Constitution.
“To that extent, such act is unconstitutional. By virtue of the provision of Section 6(1) of the said Constitution, it is only a court of law that is vested with the power to try and convict a suspect alleged to have committed an offence. Parading a suspect in public, under whatever guise, indicates that the security agencies have turned themselves to prosecutor and the judge and the same time,” Falola said.
He added that the practice negates the provision of Section 36(5) of the Constitution, which presumes a suspect innocent until the contrary is proved.
“Now if the Constitution has presumed a person charged to be innocent until proven guilty and you are parading that person under the guise of working to impress the power that be, what you are doing is the violation of the suspect’s fundamental right, which is not permitted by law,” he said.
Practice a necessary evil – Sani
Sani was, however, emphatic that no law also explicitly prohibits it, adding that they are just suspects – whether publicly paraded or not. He noted that even if they are not publicly paraded, as long as they are under investigation, the police – just like their counterparts in developed countries – are entitled to inform the public of their efforts and progress (if any, including the identities of suspected culprits).
“The key is that there should be no suggestion that they have been pronounced guilty. In other words, as long as the police emphasise the fact that they are nothing but suspects – thus ensuring the sanctity of the presumption of innocence – there is nothing in the Constitution, ACJA or any other law that is violated by that practice.
“On the contrary, it is arguable that such exposure has a strong deterrent effect on would-be criminals, who would rather forego committing a crime in order to avoid the shame and embarrassment occasioned by such ‘undesirable’ publicity.
“I guess that’s a risk worth taking (cost-benefit analysis?), compared to the seemingly obvious benefits of ‘public security, public safety, public order, public welfare and public health’ to use the language of Section 45 of the Constitution which, it will be recalled, permits a derogation from any law which otherwise might be perceived as violating certain civil liberties such as freedom of expression, association, etc.
“Suffice it to say that no right is absolute – not even fair hearing; please read Section 36(2) of the 1999 Constitution as interpreted (albeit by parity reasoning), in Bakare vs. Lagos State Civil Service Commission,” Sani said.
A breather for the media
Ukpe’s views differed from Falana on the matter of libel.
He argued that the media has not offended the rights of suspects for reporting incidents already in the public domain, arguing that the media is protected by the Constitution, which, in Section 22 saddles it with the responsibility to hold the government accountable for the people.
He added that it was within the context that the media is allowed to act to perform its role of holding the government responsible and accountable to the people, ensuring the police, the courts and other agencies of government carry out their duties.
Ukpe contended that no major deference between reporting issues about suspects paraded at police custody and when they were charged to court, wondering if there was any difference between reporting the criminal allegation at a police station and doing so during trial in court.
He added: “When a person commits a crime, there is no reason why the police should not make it public through the media; after all, the issue is already in the public. The Police should start taking fingerprints and pictures of suspects in case they escape, which could be used to declare the suspect wanted.
“The Constitution has said a crime suspect is entitled to fair hearing in public. Mind you, it did not say in secret or private. So, what stops the media from reporting the beginning of such trial to ensure justice is administered in accordance with the law? I hope you know that the process leading to trial begins with arrest?”