Legal Nigeria

Troubling questions over Nnamdi Kanu’s ‘secret trial’

Jesusegun Alagbe

The decision by the Federal Government to restrict media coverage for the trial of the leader of the Indigenous People of Biafra, Nnamdi Kanu, raises some critical questions about the government’s openness, JESUSEGUN ALAGBE writes

Being a democracy, Nigeria’s justice system rests on several important principles, including the principle of open justice.

The principle, according to analysts, played an important part in marking the country’s historic transition from a repressive military regime dotted by tyranny and secrecy to a democratic state founded on the values of accountability, responsiveness, and openness.

In a democracy, open justice is the principle that the doors of all the courts in the nation must be open to the public and the press.

Openness means that the public generally has an interest in knowing about matters of significance, such as the arguments in and results of trials.

This principle dates back to centuries and ensures fairness and confidence in the whole justice system. Open justice means that justice is not only done, but seen to be done.

Meanwhile, there is another principle of justice that an accused person has the right to know the case against them so that they can adequately prepare a defence.

This is sometimes known as the ‘equality of arms’ principle – meaning that both the person pursuing a claim and the person defending should have equal access to the evidence and arguments in the case.

Unfortunately, these principles are not always applied in practice – even in a democracy – because the government sometimes claims that the reporting of a trial or the disclosure of information in public would put national security at risk, hence the adoption of secrecy in certain trials.

However, whenever secrecy is introduced, experts worry that the principles of openness and ‘equality of arms’ are jeopardised and that the accused may not always get a fair trial, a violation of Article 10 of the Universal Declaration of Human Rights, which Nigeria is a signatory to.

This is the reason many Nigerians were disturbed on Monday when the Federal High Court, Abuja barred major media houses from covering the trial of the leader of the outlawed Indigenous People of Biafra, Nnamdi Kanu, at the court.

Several reports stated how journalists from media organisations including The PUNCH, The Guardian, Daily Trust, Tribune, Daily Sun, TheCable, and Daily Times were barred by officers of the Federal High Court via a release signed by its Chief Information Officer, Dr. Catherine Christopher from entering the court on the grounds that they were not accredited to cover the trial.

The media organisations that were accredited are Vanguard, ThisDay, Premium Times, The Nation, Daily Independent, The Herald, Nigeria Television Authority, Television Continental, African Independent Television, Channels Television, News Agency of Nigeria, BBC, Arise Television and FRCN.

The court did not give any reasons for selecting only 14 media houses while barring others from covering Kanu’s trial.

Apart from the restriction of media coverage, videos on social media also showed that some of the IPOB leader’s lawyers were denied entry to the courtroom.

“I perceive that the government barred those seen as always critical of its actions,” An Abuja-based lawyer, Mr Godwin Uchechukwu, told our correspondent on the phone.

“Any trial that is not totally open is not a fair trial, and a regime that condones secret trial is an enemy of free press and a shame to democracy,” the lawyer added.

Kanu’s day in court

On June 27, after nearly four years of jumping bail, Kanu was arrested and extradited to Nigeria from Kenya through the combined efforts of the Nigerian intelligence operatives and the International Police, commonly known as Interpol.

For years in his sojourn in London, the United Kingdom, where he is also a citizen, Kanu – through social media and Radio Biafra – dished out alleged provocative utterances against the Nigerian state, security agents, South-East leaders, and the President, Major General Muhammadu Buhari (retd).

As the director of Radio Biafra, a registered radio station in the UK, Kanu propagated Biafran separatism, a movement aiming to restore a separatist state that once existed in the then Eastern Region of Nigeria during the civil war of 1967-70.

The IPOB leader commanded his supporters to “sit at home” and boycott national elections – instructions they usually obeyed.

IPOB supporters, exclusively Igbo, have always criticised the Federal Government for its poor investment, inequitable resource distribution, ethnic marginalisation, and heavy military presence in the South-East.

No doubt, the organisation, said to be the largest Biafran independence organisation by membership, has gained significant media attention for becoming a frequent target of crackdowns by the government.

IPOB members had embarked on several protests, some of which turned deadly in the past as they clashed with Nigeria security agents. The clashes between the IPOB members and security agents have reportedly led to hundreds of deaths and injuries of members from both parties.

Kanu was first arrested in October 2015 and arraigned a month later at an Abuja Magistrate’s Court for charges of criminal conspiracy, intimidation and membership of an illegal organisation – charges the Department of State Services said violated sections 97, 97B and 397 of the Penal Code. He was granted bail in 2017 and released on health grounds.

But after then, the IPOB leader failed to appear in court to answer to the charges against him by the Federal Government. He reportedly disappeared in September 2017 after a premeditated attack on his home village in Umuahia by the military, and later alleged through a Radio Biafra broadcast that his disappearance was because the government at the centre allegedly sent the military to “execute” him in his home.

Meanwhile, this was in the same month when the Federal High Court in Abuja designated IPOB as a terrorist organisation under the Terrorism Act.

The court eventually revoked Kanu’s bail in 2019 and the trial judge, Justice Binta Nyako, ordered the IPOB leader’s immediate arrest.

Over a month ago, the Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN), announced that Kanu had been rearrested.

The IPOB leader was subsequently charged to court again and remanded in the custody of the DSS – until July 26 when he was supposed to be tried at the Federal High Court in Abuja.

However, Justice Nyako adjourned Kanu’s trial to October 21 due to the failure of the DSS to produce him in court.

When the matter was called up, the prosecution counsel, MB Abubakar, informed the court that the matter was slated for hearing and that they were ready to continue.

But Kanu’s lawyer, Ifeanyi Ejiofor, informed the court that there was a pending application before the court to transfer Kanu from the custody of the DSS to a correctional centre.

Justice Nyako stated that the trial couldn’t continue in the absence of the IPOB leader since he was not available to stand his trial.

Ejiofor, the leading counsel for Kanu, had told the court that the DSS had denied him and the IPOB leader’s relatives the opportunity to see him.

“We have been denied access to Kanu in the last 10 days. We are worried about his safety and don’t know why the Federal Government refused to bring him to court,” he said.

A member of Kanu’s legal team, Aloy Ejimakor, later claimed that the DSS gave “logistics difficulties” as reasons for not producing the IPOB leader in court on Monday,

Quest for justice

Nkasi Wodu, a New Voices Fellow at the Aspen Institute and lawyer, based in Port Harcourt, Rivers State, asserted that Kanu’s trial was an opportunity for the Federal Government to counter IPOB’s divisive tactics.

He wrote on the Council on Foreign Relations blog that many observers were watching to see whether the government would stick to its position and, in doing so, reinforce the IPOB propaganda that Igbo “will never be treated fairly in a united Nigeria.”

“The manner in which Kanu appears to have been abducted abroad already put pressure on the government to show it will not mishandle the situation in such a way that further radicalises separatists and bolsters their ranks. The IPOB leader’s disappearance only adds to that pressure,” Wodu said.

“To be sure, the president as commander-in-chief has a responsibility to discourage dissident agitations and to keep the country secure. But the government’s ongoing mishandling of IPOB and the trial of its leader will not serve those aims,” he argued.

Wodu said the best way for the government to show the majority of the Igbo people that it represents their interests “is to start with Nnamdi Kanu’s trial and to prosecute him in a way that is considered fair and equitable.”

Also, a Senior Advocate of Nigeria, Mike Ozekhome, stressed that Nigeria’s legal system does not admit secret trials, adding that the position of the law was that every trial should be carried out in public and everyone entitled to watch the proceedings.

“For a trial to be free and fair, Section 36 of the constitution says it must be carried out openly and publicly. Banning some media houses from covering Nnamdi Kanu’s trial is not only a sin against Section 36 of the constitution, but it also violently offends the provision of Section 22 of the same constitution which gives the media the right and responsibility to ensure that the provisions of Chapter Two of the constitution dealing with the fundamental objectives and directive principles of state policy are upheld and that the government is held accountable to the people of Nigeria,” he said.

The Head of Mission, Leadership & Accountability Initiative Nigeria, Mr Henry Shield, said the country was derailing from democratic values by suspending major media outlets from covering Kanu’s trial.

“So journalists and media houses wishing to cover court proceedings against Nnamdi Kanu have to apply to the DSS for accreditation? Like a media house needs the DSS permission to cover proceedings of a court?” he asked, adding, “Media houses don’t need accreditation in a court of law.”

Even though this wouldn’t be the first time the Nigerian government would be adopting secret trials for certain crimes and individuals, some political observers argued the offences Kanu is being tried for including treason and terrorism required that he be tried openly.

A Lagos-based lawyer and social commentator, Olukunle Adebola, said, “Kanu and IPOB are of interest to many parties, so it is only reasonable that the government allows more media houses to cover the IPOB leader’s trial, not only media houses that are perceived to be partisan.

“Public trials allow the general public to see that the justice system is functioning properly and treating defendants fairly.

He added, “However, in situations that warrant secret trials, it must be demonstrated that there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity. But even at that, the defendant’s fair trial rights must be protected.

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