Lawyers disagree over Practice Direction on terrorism trials
The Federal High Court of Nigeria recently issued directives on the hearing of terrorism cases across its divisions.
The Chief Judge of the Federal High Court, Justice John Tsoho, who issued the new practice directions on April 7, stated that the law takes immediate effect. According to him, only the judges, court staff and security agencies involved in a particular case shall have access to the court premises.
The policy specifically stipulated that “no person shall be allowed within the secured perimeters except the approved court officials; parties and a number of pre-registered legal practitioners on either side, witnesses and any other person as may be directed by the judge or the most senior judge in the given circumstances.”
The implication of this is that the outcome of the proceedings will no longer be in the public domain, since journalists are also by extension, strictly barred from coverage and reportage of such cases.
According to the directive, coverage of proceedings under the Practice Directions is strictly prohibited, save as may be directed by the court.
It further warned that “a person who contravenes this order or direction made under these Practice Directions shall be deemed to have committed an offence contrary to section 34(5) of the Terrorism (Prevention) Act, 2011 (as altered).”
Justice Tsoho hinged his action on the security of life and property. To him, restricting the movement of persons into the court premises or venue of the proceedings will guarantee security and safety of parties, personnel of law enforcement agencies and the judiciary, while ensuring expeditious and fair trial of defendants.
The Chief Judge went further to cite Section 232 of the Administration of Criminal Justice Act (ACJA), 2015 and Section 34 of the Terrorism (Prevention) Act, 2011 (as altered), to support the secret trial of terrorism suspects.
Considering that the accused are not guilty until found guilty by the court of law, the judge, in the new policy, stated that the names, addresses, telephone numbers and identities of victims of such offences or witnesses in the proceedings shall not be disclosed in any record or report of the proceedings “and it shall be sufficient to designate the names of the victims or witnesses with a combination of alphabets.”
Although the Code of Conduct Tribunal (CCT) has been designated the venue for such trials, the judge has, however, disclosed that proceedings can be transferred to an alternative venue from time to time, as part of security measures.
But as lofty as Justice Tsoho’s reasons appear, some lawyers and rights activists have faulted the policy, especially as it concerns secret trials for alleged terrorists.
They based their argument on the law and maintained that the practice direction contradicts the country’s Constitution.
Festus Oguche, a lawyer, called for immediate withdrawal of the policy to save the nation’s possible embarrassment before the comity of nations. He held that the constitutional requirement for open or public trial can only be abridged in the manner prescribed by the Constitution and not through a Practice Direction.
His position is that procedural law cannot operate to vary the provisions of substantive law, being inferior to it. “This is more so, as the judicial procedure sought to be varied is one contained in the Constitution, particularly under Chapter Four relating to fundamental rights.
“The Constitution expressly made provision for the only circumstance upon which the criterion for public trial cheld be varied, and that excludes all others including the purport of the Practice Direction, which is even made subject to the Rules of court,” he argued.
Oguche insisted that it is a grave misnomer that “a mere Practice Direction” would be applied to alter a notable imperative for a fair trial under the Constitution and expressed worries that the nation’s jurisprudence may be gearing backwards.
He said: “You may change the venue of judicial sittings or put in place security measures that may restrain free movement of individuals on days that such matters are slated, but definitely not by a practice direction that seeks to circumvent a fundamental right. That is terribly an absurdity.”
He added that the CJ of the Federal High Court ought to have considered the fact that the requirement for a public trial is one entrenched in several international human rights instruments as global standards of criminal trial or adjudication.
He, therefore, wondered how the Practice Direction would render the guarantees under the instruments impotent. “Not even the National Assembly can make such law as it clearly lacks the capacity legislatively to so do, unless by way of a constitutional amendment.
“But then, such amendment would also be an uphill task considering that the legislature cannot make a law that impinges against the fulfilment of the country’s international obligations. The legislature cannot, in making a law, intend that the country wishes to, through the particular legislation, refuse its international commitments.
“Then, look at the same thing being done through a CJs Practice Direction? I recommend it be withdrawn as quickly as possible and save ourselves serious embarrassment before the comity of nations,” he suggested.
For the Abuja-based human rights activist and National Coordinator, Human Rights Writers Association of Nigeria (HURIWA), Comrade Emmanuel Onwubiko, the practice direction came as a shock.
Onwubiko said he was shocked because in a constitutional democracy, “freedoms are expanded constantly.”
He wondered why the CJ could introduce what he described as a “draconian policy that not even the late maximum dictator, General Sani Abacha and his military junta had implemented.”
He added that even during the dreaded Abacha’s military regime, journalists covered cases and even the trials of military court marshals were opened to media coverage from the beginning stages to the judgment.
“That we now have this dictatorship of the Federal High Court in 2022 is very sad and I can assure you that when the history of democratic struggles would be compiled, this action of Justice Tsoho will occupy an infamous page, and to think that someone with a very illustrious name is associated with that draconian and toxic policy is benumbing and disappointing.
“Was the policy written in the military barracks or DSS underground cells and forced on him to sign? That policy is awkward, illegal and unconstitutional.
Onwubiko said constitutionalism has been heavily attacked by restricting access to court trials against reporters when Section 22 of the Constitution has empowered the media to be responsible to the citizens by monitoring and reporting activities of government officials who are exercising authority on behalf of the citizens.
“Section 22 of the Constitution makes the media the vanguard and the conscience of the nation to check excesses of government and to ensure that section 15(5) of the Constitution, which provides that it is the duty of government to eradicate abuse of power and corruption, is complied with absolutely,” he stated.
Onwubiko, therefore, called for the withdrawal or reversal of that aspect of the Practice Direction that restricts journalists from providing coverage and reportage on terrorism trials.
He said: “That policy of the court limiting access to journalists amounts to a breach of sections 22 and 15(5) of the Nigerian Constitution. This policy should be reversed with immediate effect.”
But a principal counsel in the Chambers of the Attorney General of the Federation, Mr. Terhemba Agbe, strongly disagreed with both Oguche and Onwubiko on the rights of journalists as enshrined in the Constitution.
While accepting the fact that the Constitution gives the right to open trial, he nevertheless insisted that most of the rights that are enshrined in the Constitution are not absolute.
He stated that there are limitations to constitutional rights, especially in situations where national interest is threatened. He noted that in such circumstances, individual rights could be undermined.
His words: “There would be a time that a court can order trial in camera, where people may be barred from witnessing the proceedings. Sometimes, it is to protect witnesses and sometimes, to protect accused persons. There must be a reason for ordering a secret trial.”
Agbe insisted that in such circumstances, the judge has the right to limit the number of people that are allowed into the court during a sensitive trial. People may feel it is a limitation to their rights to a fair hearing but the Chief Judge has all the powers to issue such practice directions in the interest of the nation and to protect the rights of other people.
“I may not say that such will not infringe on some people’s rights. Yes, your fundamental right as a citizen has some limitations and you exercise it to the extent of the limitations.
“If the Chief Judge decided to limit the number of people for such trial, I think it is in the interest of the people – to protect the lives of those that are testifying.
“Supposing you are one of those testifying and your identity will be everywhere, would you not say that you would be willing to testify if only your identity would be protected?
“So, it is in the interest of the nation, and it is higher than the rights of individuals. This has been the line of argument. Can you exercise your rights when the security of the nation is in jeopardy?
“So, for me, you may think that I am biased because I am on the side of government, but yes, I consider that because I work for the nation and they pay me with taxpayers’ money.”
According to him, whatever the country does, it considers the interest of the nation. He explained that it is not about personal interest, but a bid to protect witnesses to come freely and testify in those highly sensitive cases and believe that their safety is still guaranteed.
“So, I believe that there should be limitations to people that will attend terrorism trials,” he maintained.
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