Magu’s Curious Complaint about Media Trial,
By Martins Oloja
POLITICS DIGEST– It is quite significant to note that Citizen Ibrahim Magu’s very first assignment when he was released from detention last week was writing to Justice Ayo Salami panel about his ‘trial by the media’. The suspended acting Chairman of the Economic and Financial Crimes Commission, (EFCC) wrote to the presidential panel investigating allegations against him to debunk allegations published in selected media platforms during his detention. Magu, who was arrested on July 6 was released from detention on Wednesday July 15. Citizen Magu, through his counsel, Wahab Shittu, maintained his innocence, claiming that the allegations raised in the media reports were fabricated and aimed at tarnishing his image and rubbishing the credibility and image of the EFCC.
The man in the eye of the storm denied ownership of any property in Dubai, while refuting report that some dollars and expensive jewelry and wrist watches were found in his house during a raid by security operatives. He also said it was untrue that he gave N28 million or any amount to Mr Femi Falana (SAN) as maliciously reported. “Our client has never given the sum of N4 billion or any sum at all to Prof. Yemi Osinbajo SAN. GCON, Vice President of Federal Republic of Nigeria as wrongly reported. This allegation is complete falsehood designed to tarnish the hard-earned reputation of the Vice President and our client,” Magu noted on allegation that he gave money to Osinbajo.
President Muhammadu Buhari constituted the Justice Salami-led panel holding its sittings at the Old Banquet Hall of the Presidential Villa, Abuja, to probe various allegations leveled against Magu, following petitions by the Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN), and the Department of State Service (DSS). According to a report, Malami’s memo, which accused Magu of diversion of recovered loot, contains 22 allegations against the Commissioner of Police. President Buhari had last week Friday approved the suspension of Magu as Acting Chairman of the EFCC through an announcement by the AGF and appointed the agency’s Director of Operations, Mohammed Umar, to take charge and oversee the activities of the Commission pending the conclusion of the ongoing investigation by Justice Salami-led panel.
It should be of interest to all that Citizen Magu is pained about the effect of trials by the media, which is actually one of the AGF’s 22 allegations against the EFCC boss. Complaints about trials by the media are as old as the rule of law itself. It can be very painful when law enforcement authorities and institutions create impressions that suspects have been convicted even before their trials begin. It can be quite embarrassing and demeaning for someone to be seen as a convict even when the law officers have not begun to gather evidence against the person. It can be traumatic when as a suspect you are paraded publicly as a criminal. It can cut life short when you pick up a newspaper and see houses marked as yours in a newspaper as evidence of your corruption even when the case has not been filed in any court of law.
Was it not embarrassing for publishers of newspapers at the beginning of this administration when the EFCC boss declared all of them ‘thieves’ for collecting N10 million each as approved by the president Jonathan’s administration, which seized their newspapers for a period? The EFCC did not go to court for this declaration. All the publishers who were paid through the Newspapers Proprietors Association of Nigeria (NPAN) were forcibly made to refund the money. What was worse, some media executives who handled advertisements for the Jonathan administration’s 2015 election campaigns were made to refund the money collected to offset the bills. Some had their accounts frozen. All of these legitimate transactions with the previous administration were demonised by the EFCC under Magu. This arm-twisting went on without involving any court processes.
Lest we forget, one publisher was manhandled like a common criminal at the back of a pick-up van when he was arrested for a normal business transaction and he was asked to refund some sums of money without any court declarations. With all these stories in the mainstream media, the Buhari administration was then basking in the new-sheriff-in-town euphoria.
Perception then was that newspaper people were common criminals. The story line went with the party officials’ who were equally made to refund some campaign funds they collected for the 2015 elections. One stubborn opposition party chieftain who refused to return his collection was charged to court then.
So, this same EFCC under Citizen Magu has tried many prominent Nigerians on the pages of two major newspapers since November 9, 2015 when he began to act as EFCC Chairman.
In the same vein, the same EFCC reportedly collaborated with the Directorate of the State Services (DSS) when the latter swooped on the hallowed homes of some senior judges in the night of October 7, 2016 in Abuja and five states. They brought down some of the doors of the justices in search of evidence. Some of the justices have lost not only their jobs and reputation in controversial circumstances, the judiciary has never remained the same since this epochal media trials of the justices and judges, which many adminitration supporters hailed at the time. Even a former National Security Adviser (NSA) has been facing court trial but his curious trial began in the media since 2015 before evidence was reportedly ‘gathered’ in his residence.
We all enjoyed the drama then because the former NSA was being tried in the media for allegedly ‘sharing security votes’ to the then ruling party people. The EFCC was involved with the DSS of the time. Let’s see why media trial to get noticed is evil:
There is ‘constitutional presumption of Innocence’
By the provision of section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, every person who is charged with a criminal offence shall be presumed to be innocent until proved guilty.
Article 7(1) (b) of the African Charter on Human and Peoples’ Rights 1981 also guarantees this presumption when it states as follows:
1. Every individual shall have the right to have his cause heard. This comprises:
(a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognised and guaranteed by conventions, laws, regulations and customs in force;
(b) the right to be presumed innocent until proved guilty by a competent court or tribunal;
(c) the right to defence, including the right to be defended by counsel of his choice;
(d) the right to be tried within a reasonable time by an impartial court or tribunal
The presumption of innocence is the legal principle in criminal cases that one is considered innocent until proven guilty. This basically means that until a judicial pronouncement on the guilt or otherwise of the accused person is made, he/she is to be treated as an innocent citizen; anything contrary would amount to a breach of the Fundamental Human Rights of the individual.
It is to be observed from the provision of the said section that it is only when a person is charged to court with a criminal offence that he is presumed to be innocent until he is proved guilty. In the case of: Aig- Imoukhuede vs. Ubah, the court held that the condition precedent for the activation of the right to the presumption of innocence is that the person must have been charged with a criminal offence. Furthermore, the court held that the phrase “charged” in the said section refers to an arraignment of an accused before a court of law or a tribunal having judicial powers to convict and punish the accused, if found guilty. It does not extend to administrative or ministerial investigative bodies.
The other aspect of the presumption of innocence is that the burden of proving the guilt of the accused person is on the prosecution. Section 135 of the Nigerian Evidence Act 2011 casts the burden of proving the guilt of an accused person on the prosecution who alleges that the accused person has committed an offence, and specifies the degree of such proof to be beyond reasonable doubt.
The prosecution is saddled with the responsibility of adducing credible evidence to establish the guilt of the accused person beyond reasonable doubt. No matter what indictment or formal charges are brought against him, and no matter what the popular the opinion may be, if the prosecution cannot decisively establish his guilt at the trial, he is entitled to be discharged and acquitted.
In the case of: Ahmed v The State2 ,the Supreme Court held that:
“It is a cardinal principle in criminal proceedings that the burden of proving a fact which if proved would lead to the conviction of the accused is on the prosecution who should prove such fact beyond reasonable doubt. In criminal cases, any doubt, as to the guilt of the accused, arising from the contradictions in the prosecution’s evidence of vital issues must be resolved in favour of the accused person.”
There have been reported cases of media trials, which have sparked some negative comments from members of the public. Incidentally, one of the early critics of the practice of media trial was the former Chairman of the Economic and Financial Crimes Commission (EFCC), Mrs.Farida Waziri. During the 2009 Annual NBA Conference in Lagos held at the Eko Hotel, Lagos between August 16th – 21, Chief (Mrs.) Farida Waziri, in her remarks at the Lawyers In The Media (LIM) of NBA session with the theme: Crusade Against Corruption and The Effect of Trial By Media” noted the effects of media trial on the judicial process thus: “The judiciary is referred to as the last hope of the common man. It is the bastion or citadel of justice; it rests and carries out its functions on the pillars of the rule of law, and public confidence. Anything that undermines public confidence in the judiciary is inimical to the judicial process. The media should be wary of this. Trials by the media of criminal matters, prejudices the minds of the populace and make them hold the court in contempt and dishonored where it ultimately reaches a conflicting or different verdict. More often than not, allegation of compromise and corruption are made against the judge. This is very unhealthy for the development of our legal system, and judicial process. The commission has also recently come under media trial. Its efficiency is now assessed not so much on the actual work done but on work, which the media wants the public to believe that the commission ought to have done. Slow proceedings in the courts are placed at the door of the Commission. The media also wants the commission to investigate and prosecute certain individuals without which the commission would be considered as ineffective. Some of these individuals are already condemned by the media as guilty of corruption even before being charged to court. This approach negates all civilized principle and particularly the rule of law, which we must all uphold”.
Let’s continue next week on this conversation: why Magu should not weep about media trial (of Magu).
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 then 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 statement 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 press release 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 counseled 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 an 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.
So, 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 trial. 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.
Martins Oloja is a Columnist with the Guardian