The President Muhammadu Buhari (APC)-led Federal Government on Friday 30 March 2018 published the names of persons who under the Goodluck Jonathan (PDP)-led administration had allegedly looted the treasury of the country. The list which contained six names of high-profile members of the Peoples Democratic Party (PDP) was published in response to the taunting of the Federal Government by the PDP that it makes true allegations of “looting” by publishing the names of persons it claims have looted.
While some have criticized the list for containing only six names despite the high premium the Buhari-led administration claims to be placing on the anti-corruption war, others have criticized the list for containing no names of members of the present APC administration. The PDP has in response to the list debunked the allegations and named its own “list of looters” containing names of high profile members of the APC. This write-up, while trying as best as possible to avoid the politics of the issue, considers the list published by the federal government and advises on the need for caution in commentaries on matters pending before the courts.
It is an elementary point that under law and our constitution, a person charged with a criminal offence is presumed innocent until his guilt is proven. This is the essential theme of our criminal prosecution enshrined in section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). It is therefore only a competent court that can pronounce the guilt of a person accused of an offence, and the courts in so doing must be allowed to reach a just conclusion independent of public sentiments from the court of public opinion.
Our criminal procedural laws, as imported from England, seem to slightly permit “suspects” or names of persons alleged to have committed offences to be published and the fact of the allegation may be subject to “fair comment” before the person is charged to court. Indeed, in Daniel v FRN, the court disagreed that extensive media publication before the trial of a case infringed on a Defendant’s right to fair hearing and a fair trial. However, when the matter becomes pending before the courts, continued commentary on the culpability or otherwise of a party in the case offends the subjudice rule and may, under some circumstances, be contempt of the proceedings of the court.
Looting of the national treasury is a serious offence which cannot be established save by a court of law. When a matter has proceeded to and is before the courts, parties must refrain from commentary on the matter. In the UK case of R v Socialist Worker, the attempts at publication of names of an accused when the courts had warned against same earned the publisher terms of imprisonment for contempt.
In Nigeria, while the publication of names of “alleged looters” may not particularly offend our laws or be complete grounds for action in defamation, the publication of names of those who have been charged to court, including statement of how much they allegedly stole, is no doubt an act which impedes the duty of the court in independently reaching a conclusion on the guilt of a person whose case pends before it and whose guilt is yet to be determined. There is therefore a serious need for caution, particularly as more comments may continue to generate on the said list. Such persons as Olisa Metuh and the former National Security Adviser who are already before competent courts should not have been published on a list that indirectly confirms them as “looters” when the court is yet exercising jurisdiction to determine the issue.
Indeed, this action by the Federal Government could greatly prejudice the right of the named persons to justice and was exactly what the Chief Justice of Nigeria, Walter Onnoghen, cautioned against in his press briefing on 11th of January this year when he said, and I quote:
“The CJN wishes to remind the public that it is Contempt of Court for anyone to discuss any matter pending in any Court of Law in the country. The punishment for Contempt may include a term of imprisonment …”.
“In respect of criminal proceedings, it is forbidden for parties, their counsel or newspaper commentators to freely offer opinions in respect of matters pending in court, including any situation where a conviction has been entered but the convict’s appeal is pending at the appellate court.
“We must not allow ‘trial by newspaper’ or ‘trial by television or trial by any medium other than the courts of law.’ I think that anything in the nature of prejudgment of a case or of specific issues in it is objectionable not only because of its possible effect on that particular case but, also, because of its side effects which may be far reaching.
“Responsible ‘mass media’ will do their best to be fair, but there will also be ill-informed, slapdash or prejudiced attempts to influence the public.
“If people are led to think that it is easy to find the truth, disrespect for the processes of the law could follow and, if mass media are allowed to judge, unpopular people and unpopular causes will fare very badly.
“Most cases of prejudging of issues fall within the existing authorities on contempt. I do not think that the freedom of the press would suffer, and I think that the law would be clearer and easier to apply in practice if it is made a general rule that it is not permissible to prejudge issues in pending cases.”
The CJN’s admonition is clear and incisive of this issue. The Federal Government is no doubt a party in all criminal trials it has initiated in courts against some named in the “alleged looters list” and the publication of the list has no effect other than to taking the cases already pending before courts to the court of public opinion for adjudication. Even though some may argue it was the opposition who “asked for it”, there is need for caution to intervene to avoid further and more full-blown commentaries on the issue.
It is the duty of the Government and all in society to preserve the machinery for the determination of rights and the preservation of justice: the courts. Judges do not possess adjudicatory authority because they are muscular men of strength, rather possess this authority because the society abides by their direction and respect their determination of rights and obligations as conferred upon them by our laws. The rule against subjudice acts or comments seeks to preserve this authority and if the other arms of government who should aid in ensuring the respect for the judiciary continue to recklessly engage in acts that derogate from its respect, the role of judiciary in ensuring of justice may become an illusionary concept and the rule of law; a theory we only read in law books. The Federal Government must therefore exercise caution and restraint in leading discuss on matters already under the adjudicatory authority of its own courts.
  LPELR-22148 (CA)
  QB 637
 ‘CJN warns against comments on pending court cases’, The Sun, 11 January 2018, http://sunnewsonline.com/cjn-warns-against-comments-on-pending-court-cases/