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| Mary Helen Bernstein |
By Mary Helen Bernstein
I want to preface this letter by stating that no tourist will ever want to step foot in your country wherein mother’s throw their babies to the side of the roads to rot in swaddling clothes and judges take orders from the executive branch concerning bail of a defendant abdicating their role as a jurist in the legislative branch. Because Nnamdi Kanu case is such a high profile case internationally, you have tarnished Nigeria reputation on the World stage by your antics. I have seen ships guided better in a storm than the 3 ring circus mishandling of the Nnamdi Kanu case. You receive aid from my government so I can give you my two cents worth (sense).
I raise these issues now because Nnamdi Kanu and his co defendants David Nwawusi and Benjamin Madubugwu case is scheduled for September 26 2016 which the World anticipates you intend to postpone again as further delay tactics. The World can deduct that you intend to hold these men indefinitely for fear of scrutiny of your legal decisions. You have lost confidence and no longer belong on bench if preoccupied wringing your hands. Nnamdi Kanu and these defendants have been detained without bail, no trial for nearly a year which is contrary to Nigerian laws. You are engaging in what is called as abuse of discretion. You issued conflicting opinions concerning witnesses reflecting either directed incompetence or something else at play. In February veiled identities was forbidden; in March mandated. In fact, I would go further to state that you have engaged in the practice of corruption accepted a bribe, sweetheart deal enriching your purse strings or in the alternative you are so intimidated by the executive branch of government, President Buhari. If you yourself have accepted a bribe in your role as a jurist, then how can your judicial system expect to try over, judge misappropriation of funds cases? . This is a case of the Foxes guarding the Henhouses.
If you are intimidated, fearful of retaliation by the executive branch for your role as trier of fact and dispenser of punishment, then you have no business being on the bench administering justice. The reason being is this shows that your decision is based on other issues outside of the facts and that you are incapable of a fair, impartial trial. In which you have no business on this high profile case. I am reading that corruption cases are placed on fast track. Ironically, your courts provide your partners in crime with facilitation of their legal proceedings in a timely fashion; however, one that has not engaged in such atrocities you suspend in time indefinitely.
Let me enlighten you on what the World sees concerning your courts and federal government. Through the looking glass and your laws.
• It is not a treasonous crime to possess passports from two different countries maintaining dual citizenship
• Protesters are not to be gunned down, right to assembly
• No prosecution of crimes committed against protesters, lawless land
• In particular criminal law proceedings are to be accelerated as an individual’s life is hanging in the balance. This not only affects the defendant but their entire family.
• The way to reparations in the court of public opinion the World’s eyes that sees Nigeria as fantastically corrupt, begins with the judicial system.
• Economic reform begins when the World can begin to trust Nigeria – investors, businesses have fled with no expectation of return in the marginally near future
• The World is not sympathetic to Nigeria trials and tribulations due to corrupt tactics
• Nnamdi Kanu trial peppered with endless continuances, concealed identities of accusers, denial of bail, revocation of release new charges trumped
• Denial of Right to speedy trial
Nnamdi Kanu is a refined man, educated in London and behaves in a highly civilized, diplomatic manner as opposed to jurists, officers of the court and the federal government there. David Nwawusi and Benjamin Madubugwu, the co defendants also deserve to be treated with dignity even though they may not be as educated or well known as Nnamdi Kanu. Nnamdi was released by court order in December bail accepted. Baiting and switching court order stating he would be released to the public, world only sleight of hand antic, the court’s playful trick, prank in which the World is not amused. This ruined the credibility of your legal system illustrating that corruption begins at the top. If the judiciary engages in parlor tricks which further erodes confidence in your country. It is laughable now to see that the Nigerian courts intend to prosecute corruption when in fact they are no strangers to swindling and fleecing the flock.
Let me refresh your memory of your laws. Academia.edu RIGHTS OF AN ACCUSED PERSON UNDER THE NIGERIAN CRIMINAL JUSTICE SYSTEM states:
- ii. Right to be informed of the Facts and Ground of Arrest.
Section 35(3) “Any person who is arrested or detained shall be informed in writing within twenty four hours (and in language that he understands) of the fact and ground for his arrest or detention” This means that a person is prima facie entitled to his freedom, and is only required to submit it if he knows in substance, the reason for his arrest.
Since the Constitution stipulates 24 hours, it can be safely said that any time after this would be unlawful. One of the practical considerations for this right is that it gives the accused an opportunity to explain any misunderstanding or call attention to other persons for whom he might have been mistaken, saving him from the consequence of false accusation and at the same time helping the police in their investigation
APPLICABILITY TO THE NNAMDI KANU TRIAL:
We have witnessed that you possess no legal grounds against these men which explains the silence about their arrest initially. It is not unlawful to possess dual citizenship, in fact, that was not brought up initially but “charged” later on in the matter grasping at straws. It is not a crime to have dissenting opinion of that of your government in a democracy. Independent thought is encouraged and individuals are entitled to assemble and protest.
- iii. Right to be brought before a court within a reasonable time
Section 35(4) provides that an arrested or detained person shall be brought before a court of law within reasonable time. For the first time, reasonable time is defined under section35(5) as one day where there is a court of competent jurisdiction within 40km radius, and in any other case, two days or such longer period, in the circumstance which the court may regard as reasonable. The subsection further provides that if an accused person is not tried; (a) Within 2 months from the date of arrest or detention in case of persons who is in custody or not entitled to bail or (b) within three months in case of persons who have been released on bail, he shall without prejudice to further proceedings that may be brought against him, be released unconditionally or on such conditions as are reasonably necessary to ensure that he later appears for trial. The effect of this provision is that, where the accused person is not brought to court within a reasonable time, whatever reasons the police may have for his continued detention, he must be released on bail unconditionally or conditionally, after 2 months or 3 months respectively depending on whether or not he is entitled to bail. It should be noted that this procedural safeguard as regards trials not available to a person charged with a capital offence, since he is not ordinarily entitled to bail because of the gravity of the offence.
APPLICABILITY TO THE NNAMDI KANU TRIAL:
Do I really need to explain this one to you?
We have witnessed nothing but stagnation on this matter. Is it a capital offense to vote? To lobby for change? To lobby for Biafra Referendum? If this is the case why was David Cameron not imprisoned? Yes that was a governing body and this is a country, however, the mere prospect holding a referendum. The suggestion of this body politic is not a capital crime. Likewise, it is not a crime for Nnamdi a free man to possess dual citizenship. On this planet it is also not a crime to have a radio station in a completely different country United Kingdom to muse and opine on whatever the owner of the broadcasting station elects. Radio Biafra is his station, IPOB station and they have the right to airing schedule that they desire without imprisonment in another country. Are you saying that anyone that has negative view of Nigeria that travels there exposes themselves to abduction, indefinite detention? How do you expect to engage in multicultural, global relations with citizens, businesses of foreign countries that cannot safely travel for business or pleasure? You are undermining your own efforts at revitalizing your economy. Yes, you Judge John Tsoho because you are the face and the mouthpiece of Nigeria legal system.
- iv. Compensation clause Section 35(6) provides that anybody in respect of whom any of the provisions of this section has been breached is entitled to compensation and public apology by the appropriate authority. The appropriate authority could be the police or any other detaining body. In Dele Giwa v I.G.P , Dele Giwa was unlawfully arrested and detained without informing him of the charges against him in writing. He was released later and went to court relying on the constitutional provision. He was awarded N10, 000 and the IGP, Mr. Etim In yang, apologised to him in writing. It is to act as a caution against the breach of the human right provisions.
APPLICABILITY TO THE NNAMDI KANU TRIAL:
If there is any such case of compensation that should be awarded it is in this matter. In the World’s eyes, you can play a redemptive part by acting like an impartial jurist from this point on. Compensation should be awarded to these men for their mental anguish for the past year essentially.
- v. Bail in Capital Cases ; Section 35(7)(a) provides;“nothing in subsection 4 shall be construed as allowing bail for a capital offender or suspect”.
This seems that bail for a capital suspect is not ordinary. It must be granted under exceptional circumstances. It is clear that the constitution meant section 35(4) and (5) 32 as section 35(4) cannot stand on its own. However, in Amuda v. C.O.P, it was held that the section cannot be read to foreclose bail for an accused on the ground that it will undermine Constitutional provision of presumption of innocence as enshrined under section 36(5) Bada J. said, to say that a person accused of a capital offence cannot be granted bail is wrong because he has not been proved guilty. It seems that the Constitution is not as forbidding so it looks in the first glance. Therefore, Sections 36(5) and 35(7) should be read together alteram partem. A breach of this doctrine of fair hearing in a judicial inquiry renders the action unconstitutional, illegal and liable to be set aside.
APPLICABILITY TO THE NNAMDI KANU TRIAL:
This matter should be set aside because we have witnessed that the entire process has been illegal, unconstitutional. The Nigerian courts, government and military have all engaged and continually engage in illegal actions. Nigeria will be left wallow in its woes solitarily if it does not rehabilitate its leadership. The World is all out of sympathy. The Biafran people want to separate because Nigeria is a hostile environment to them which is understandable. It can be reduced to two words: survival instinct. The Biafran people experience taxation without representation, marginalization, oppression, lack of security. Even an animal attempts to release itself from abusive situation and gnaw itself out of bondage.
- vi. A person charged with a criminal offence must be tried within a reasonable time;
The constitution guarantees to every person charged with a criminal offence the right to be tried within “a reasonable time”.Trial within a reasonable time is fundamental to a fair trial because undue delay impairs the ability of an accused person to defend himself through the facts that are vital to his defense and witness might have died or the interval or the recollection of the facts by other witnesses might have become blurred. There is also the danger of the trial judge losing his impression of the demeanor of the witness after the lapse of time during which he has to watch the demeanor of witnesses.
Undue delay is thus fraught with the danger of miscarriage of justice, and for that reason it is frowned at by courts. Furthermore, a public arrest exposes the person involved to anxiety and concern which is unfair to be prolonged unduly. What is reasonable time is, however, relative to the circumstances of each case. The relevant factors to be taken into account include, the length of delay, the reason for it, the amount of prejudice to the fairness of the trial occasioned by the delay and the accused person‟s assertion of his right.
APPLICABILITY TO THE NNAMDI KANU TRIAL:
Again, do I really need to explain this one to you? We have witnessed nothing but stagnation on this matter. Is it a capital offense to vote? To lobby for change? To lobby for Biafra Referendum? If this is the case why was David Cameron not imprisoned? Yes that was a governing body and this is a country, however, the mere prospect holding a referendum. The suggestion of this body politic is not a capital crime. Likewise, it is not a crime for Nnamdi a free man to possess dual citizenship. On this planet it is also not a crime to have a radio station in a completely different country United Kingdom to muse and opine on whatever the owner of the broadcasting station elects. Radio Biafra is his station, IPOB station and they have the right to airing schedule that they desire without imprisonment in another country. Are you saying that anyone that has negative view of Nigeria that travels there exposes themselves to abduction, indefinite detention? How do you expect to engage in multicultural, global relations with citizens, businesses of foreign countries that cannot safely travel for business or pleasure? You are undermining your own efforts at revitalizing your economy. Yes, you Judge John Tsoho because you are the face and the mouthpiece of Nigeria legal system.
- vii. Right to publicity of a criminal trial
. Under section 36(4), whenever a person is charged with a criminal offence, he shall unless the charge is withdrawn be entitled to a fair hearing in the public. In other words, the room or place in which any trial is to be conducted shall be an open court to which the public may have access as far as it can conveniently contain them. The proviso to section 36(4) further classifies certain instances when the public may not be permitted during a criminal trial. These situations are considered;
i) in the interest of defence, public safety, public order and public morality.
ii) for the welfare of persons who have not attained the age of eighteen years;
iii) to protect the private lives of the parties to the proceeding;
iv) upon the satisfaction of court by the Minister of Government of the Federation or a Commissioner of a State that it would not be in the public interest for any matter to be publicly tried, the court may hear such evidence in camera.
v) During trial of juvenile;
vi) When an enactment expressly requires that a trial shall be held in camera. In all these circumstances, when proceedings are being heard in camera, except the court expressly stated otherwise, bona fide representative of mass media, court officials and legal practitioners appearing in the case are permitted in court.
APPLICABILITY TO THE NNAMDI KANU TRIAL:
In this instance, where so much discrimination and disparity has run afoot there certainly needs to be transparency. Nnamdi Kanu is not a juvenile and this is most certainly in the interest of public morality.
I am going to do everything in my power spiritually and physically to expose the injustice that you are continually committing against these Biafran people. I will be watching you September 26 your predictable move to postpone yet again these men’s faith further enraging the World and exposing Nigeria to unrest and lack of peace. You are incensing the situation as opposed to settling the matter.
Unequally yoked the crime and the punishment. Nnamdi Kanu,David Nwawuisi and Benjamin Madubugwu: you, the court system, your government are engaging in discrimination against these men. Daniel Bulusson in his article Nigeria:
- Speedy Trial for Corruption Cases eloquently states the obvious: “The day-to-day trial is a plus to the fight against corruption but it should not be restricted to only economic related crimes: Every criminal offense should be given the same treatment.”
The fight against corruption begins with the King’s Court. How can you expect to attract tourism and salvage economy ? How can you expect to attract investors, business if they feel that there are no legal remedies to breach of contract and nonperformance?
How can you expect travelers to feel safe in Nigeria knowing that there is not freedom of speech that assembling together singing songs is somehow punishable by death by your military forces with no legal consequences? You are proving that you are nothing more than a figurehead unable to administer justice. What say you?
References:
http://www.academia.edu/…/RIGHTS_OF_AN_ACCUSED_PERSON_UNDER… RIGHTS OF AN ACCUSED PERSON UNDER THE NIGERIAN CRIMINAL JUSTICE SYSTEM
http://allafrica.com/stories/201603220260.html
Nigeria: Speedy Trial for Corruption Cases
Mary Helen Bernstein is a Human Rights Activist. She an American citizen living in Fremont, California USA.
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