Magu’s curious complaint about media trial – Part 2

As I was saying, this comment is not about the trials of Citizen Ibrahim Magu, a Commissioner of Police who has been serving as Acting Chairman of the EFCC since November 9, 2015. It is about the consequences of pre-trial publicity also known as ‘trial by the media’ and how to prevent it from contaminating fair trials of people. It is just to drive home some point to the authorities and the people that the post-Magu era in Economic and Financial Crimes Commission (EFCC) should not be a reputation destroyer of suspects facing corruption allegations. We may not have been underscoring this fact: that media trial is one of the troubles with the EFCC, which is now being feared instead of commanding respect for its good work. And the conclusion of the whole matter here is that our Brother Magu, now a suspended ‘suspect’ should not be complaining at this time about the poisoned chalice the EFCC he heads has been giving to suspects he has been trying. Now he should know better that ‘media trial’ is an evil that the criminal justice system and indeed the law enforcement agencies should address as a matter of priority. 

We need to address this thorny issue now because one of the hallmarks of a civilised political system, which even foreign direct investors often look for, is respect for the right of a fair trial. Let’s do some literature review on this critical subject. In 2017, one of the most remarkable judicial editors of our time, Mr. Richard Akinnola wrote a seminal piece on the point at issue titled, ‘Between Media Trial and Court Trial of Justice Adeniyi Ademola’, which contained this: 

‘In an attempt to give legitimacy to an otherwise despicable modus and acts of crude vendetta against some judges, the DSS embarked on serial media trial of the arrested judges. Trial by the media refers to a situation whereby the media create a perception that an individual or group of individuals are guilty of a criminal offence, through the dissemination of prejudicial materials, with the intention of creating a perception of guilt. According to Prof. P.K. Fogam, in a paper titled “Crusade against corruption and the effects of trial by the media”, at an event of the National Association of Judicial Correspondents (NAJUC):”Trial is essentially a process to be carried out by the courts. In fact, ‘trial’ is a word, which is associated with the process of justice. It is the essential component in any judicial system that an accused should have a fair trial. Trial by the media would therefore be an undue interference in the process of justice delivery…’ 

In 2017 too, Hon. Justice Gabriel Kolawole of the Federal High Court in Abuja was forced to suspend hearing in the trial of a case involving a serving Army Colonel Nicholas Ashinze and four others as a result of a false media publication by the EFCC. Mr. Wilson Uwujaren, the head of the media and publicity department in the EFCC had issued a publication to the effect that the serving colonel Ashinze had been indicted over a N36.8bn public fund diversion whereas, in the original trial then, the accused was charged with N1.5bn public fund diversion. The offensive statement also referred to Ashinze as a retired Colonel whereas, he was still serving. However, after a written apology from the EFCC was published on the case, the trial judge agreed to resume hearing. This is one simple example of the many press statements the EFCC has always issued on even cases they have not filed in any courts. We in the media always enjoy these pre-trial statements as long as they are about our prominent people.  

As I was saying, the presumption of innocence is a fundamental right guaranteed under the 1999 Nigerian Constitution. The right to freedom of expression and the press is also guaranteed under the Constitution. The courts have a duty to protect both rights. Many years ago, that erudite jurist, Lord Alfred Denning, Master of the Rolls counselled that: 

‘When considering the issue, it must always be remembered that besides the interest of the parties in a fair trial, there is another important interest to be considered. It is the interest of the public in matters of national concern, and the freedom of the press to make fair comment on such matters. The one interest must be balanced against the other. There may be cases where the subject matter is such that the public interest counterbalances the private interest of the parties. In such cases, the public interest prevails. Fair comment is to be allowed.’

Thus, it is all about balancing the right of the accused to a fair trial by enforcing his presumption of innocence with the right of the members of the public to comment fairly on matters of public interest arising from the trial. But this is impossible when trials begin in the media even before the papers are filed in courts. 

According to Hon. Justice P.A.Akhihiero while at the Edo State High Court of Justice, “This naturally raises some salient issues relating to the integrity of our courts and the media. Our courts must be manned by men and women of unquestionable integrity. They must be experienced enough to hold the scales of justice to balance conflicting interests. They must be courageous enough to resist the external influence of public opinion emanating from the media. The judge must not make his findings based on the popular sentiments expressed in the media”. 

There is another significant case in point. Sometime in 1975, one Prince Felix Osadolor (alias Afro) was standing trial for armed robbery before the Midwest Robbery and Firearms Tribunal. The electronic and print media were all awash with negative stories of his alleged criminal exploits before his trial. In the perception of the public, his guilt was already established. But on the day of judgment, the Tribunal presided over by Justice Ayo Irikefe held that although Afro was very notorious in the eyes of the public, he was not guilty of the charges preferred against him. The judgment triggered outrage from the public. But the maxim is: Let justice be done even though the heavens fall. We need judges and magistrates of such stature who can withstand the pressure from the public – already influenced by media trial.  

Let’s examine more relevant cases: On November 21, 2017, there was tension in the Asokoro area of Abuja following a clash between officials of the Department of State Services (DSS), the National Intelligence Agency (NIA) and the Economic and Financial Crimes Commission (EFCC). The anti-graft agency operatives had stormed the residences of Ayo Oke, who had just been sacked then as director-general of the National Intelligence Agency (NIA), and Ita Ekpeyong, the immediate past director-general of the DSS in a bid to arrest both men. However, the operatives attached to the two retired top security officials resisted the move, which resulted in a heated argument and confusion. The EFCC had invited Oke for questioning in connection with $43 million found in an apartment in Ikoyi, Lagos. Oke’s wife, who had also been summoned, was alleged in the media as the owner of the apartment, which was then in dispute. 

Consequently, on April 11, 2018, the then acting director general of the NIA, Ambassador Mohammed Dauda explained to a senate ad-hoc committee why the intelligence agency blocked the EFCC from arresting their former DG, Ambassador Oke. Dauda told the senate committee that the move to arrest the former DG was first reported in the media even before the EFCC concluded on its position on the issue. He added that NIA is a secret service whose operations are clandestine and highly classified. Accordingly, he said it was normal to shield the Agency from further negative publicity.

The Acting DG said there was no official communication to the agency from the EFCC on the exact mission of its operatives to the residence of Oke. This same was applicable to the former DG DSS, Ekpeyong. Though a presidential adviser, Professor Itse Sagay then berated the DSS and NIA for obstructing arrest of the two former chief executives of Nigeria’s central intelligence agency, the fact remains that the noisy incident smacked of what I have always called a chaotic presidency, which doesn’t organise the EFCC for efficient management of its operations. Why did the trial of the intelligence chiefs begin in the media as Ambassador Dauda revealed at the senate hearing on the issue? Dauda denied knowledge of any letter from the Acting chairman of the EFCC, Ibrahim Magu, requesting for the surrender of the former DG of the NIA, adding that the only letter received from the EFCC chairman was a threat to report the conduct of the NIA to President Buhari. Before the Senate ad-hoc committee, Dauda regretted that the EFCC under Magu had been hostile to and uncooperative with the NIA, leading to the massive withdrawal of NIA operatives from the Service of the EFCC. I have consistently recalled here the media trials of the former National Security Adviser, (NSA) retired Colonel Sambo Dasuki who was detained for four years and the former Chief Justice of Nigeria, Hon.Justice Walter Onnoghen, who was compulsorily retired, no thanks to the destructive power of media trial before he was arraigned at the Code of Conduct Tribunal, which actually sacked him. 

As we seek to rebuild our country’s broken walls, now that we have realised the ruinous and corrosive power of rampaging corruption at all levels, the authorities, the legal practitioners and the news-media leaders should realise that we cannot fight corruption through media trials. That can only make the incumbent powers popular for a moment, but in the end, it will only amount to what Shakespeare describes as ‘a tale told by an idiot, full of sound and fury, signifying nothing’. 

Legal practitioners should abide by the code of conduct and the ethics of the legal profession and must avoid making utterances in the media that will be prejudicial to trials in court. And for us in the media, we should not allow attention-seeking agencies to use us to begin trials of our people under the guise of giving us deadly scoops, which are meant to destroy.