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| Lai Mohammed |
LOOTERS’
LIST: LAWYERS SPEAK ON LEGAL IMPLICATIONS.
Recently,
Lai Mohammed, the Minister of Information and Culture released lists of men and
women that allegedly helped themselves to our common wealth. This development
has no doubt heated the polity with series of comments from pundits for and
against the FG’s decision. While many have been looking at this development
from purely political angle, African Drum opted to speak to legal professionals
on the legal implications.
BY DIMAMA DAUDA.
18 April,
2018
The Pilot Newspaper recently revisited the work
of the enlightened philosopher, Montesquieu who coined the phrase “trias politica”, or separation of
powers, in his influential 18th-century work “Spirit of the Laws”.
His
concept of a government divided into legislative, executive and judicial
branches acting independently of each other inspired contemporary
constitutional democracy based on separation of powers which abhors
concentrating too much power in any one body of government.
James
Madison writing on the necessity of the separation of powers noted that: “The
accumulation of all powers, legislative, executive and judiciary, in the same
hands, whether of one, a few, or many, and whether hereditary, self-appointed,
or elected, may justly be pronounced the very definition of tyranny.”
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| Chief Odey |
In
line with the above, the question any right thinking Nigerian should be asking
is simple: has the APC led federal government overstepped its constitutional
bonds by coming out with a list which it says are looters of our treasury when
none in the list has been found guilty by any court of law?
By
this very act by the APC-led federal government, has it not undermined the very
principle upon which democracy is built? Does this not undermine the
presumption of innocence until proven guilty?
Its truism that Justice system is based on
the presumption of innocence until proven guilty. Consequently, many observers
are of the view that when a ruling government plays to the gallery and takes
the bait of the opposition and publishes names of political opponents that have
not been legally found guilty of looting the public treasury in a competent
court of law, it amounts to a call to anarchy and a total disregard of the judicial
arm of government.
Speaking to African Drum on the issue, a Jos
based legal practitioner, Chief Sunday Gabriel Odey said some of the published
names are persons who are already standing trial in different courts across the
country and none of them have been convicted while some according to him have
been acquitted by the courts stressing that some have not even been charged to
any court on the allegation of looting the nation’s treasury. Odey continued,
“it is therefore, extremely defamatory of the government to go to press with
the names of people who have never been charged in court and names of those who
are undergoing trial before the courts. The action of government is not only defamatory;
it is also contemptuous of the courts where the trials are being conducted.
“The government is the prosecuting party in
the corruption cases before the courts; it is therefore, impertinent of the
same government to place the same accused persons on media trial. The government
has not only prejudged the guilt of the accused persons but has afflicted them
with double jeopardy. Government action in publishing names of suspected
looters amounts to judicial ambush, a negation and infringement of the right to
fair hearing.”
He said that an accused person is presumed under
the constitution of the Federal Republic of Nigeria to be innocent of a crime
until proven otherwise by a competent court of law established and constituted
in such a manner as to ensure and guarantee its impartiality. The legal
luminary further said that the action of government clearly points to a
disposition of procuring a partial trial before the courts with a predetermined
outcome of a guilty verdict upon their political opponent.
Chief Odey wondered why at a moment when
Nigerians were awaiting the list of projects executed so far by the APC and
Buhari led government, they decided instead to release lists of alleged
treasury looters adding that all the names in the alleged lists were that of
Buhari’s political opponents.
According to him, “the only reason why the
government is resorting to this dirty tactics is because it has no projects on
ground upon which they can draw up a list for presentation to Nigerians as
their achievement over the period of three years in power. It’s a diversionary
tactics in the run up to the 2019 elections”.
In his submission, another
Jos based legal practitioner, Gyang Zi considered the
conduct and attitude of the Buhari and APC led administration as immature,
incompetent, insensitive, undisciplined and callous.
According to Zi,
“this is not surprising however taking into account blatant disregard and
violation of the Constitution of the Federal Republic of Nigeria, abuse of
Powers, impunity as well as the extreme abuse of Human Rights that has
inherently become a major characteristic of this Administration.
“It is
elementary and trite that the Nigerian Constitution like all other Democratic
Constitutions provides for fair hearing and presumption of innocence; See
Section 36 (1) and (5) of the Constitution of the Federal Republic of Nigeria
1999 (as amended).”
He continued, “it
is my firm position that for the Government to approach the Media without the
Judiciary first hearing and convicting the purported persons on the
"Looters List"; the government have violated the provisions of
Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as
amended).
“This is because
the said persons whose names are already published as Looters have already been
tried and convicted on Media and therefore render all proceedings that might be
taken against them perverse due to impression that is already created in the
minds of the people. The impression created in the minds of the people also
puts the Judiciary in a very precarious and tight position when after proper
trial (hearing) of the case the court finds that the truth based on evidence is
different from what people have been made to believe on the Media.”
He concluded by
advising and recommending that the Nigerian Government under the APC and
President Muhammadu Buhari should be a responsible Government that has respect
for its Citizens and the Rule of Law.
In his comment
Barrister John Sok said there is no doubt that corruption has assumed
a disturbing crescendo in Nigeria and to that extent, the fight against it has
also become a matter of public interest amongst Nigerians irrespective of their
faith, or geo-political deride.
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| Barr Zi |
As
to whether the Federal Government is right to have published what is now called
the list of looters, i.e. the names of those who are thought to have plundered
the nation’s economy, Sok said there are a few things involved here; “I think
the list contained the names of those persons who have already been charged to
court and their cases are still pending and those who have not been charged to
court over the allegation.
“For those whose cases are
pending in court, I think, legally speaking, it is contemptuous and subjudice
for the Federal Government or any one for that matter to include their names
and arrive at a conclusion that they are looters. They cannot be judges over
their own cases. At least, the principles of separation of power forbids that
kind of governance, as only the judicial arm, in this case the courts have the
constitutional power to make such pronouncement. S. 36(5) of the 1999 constitution
(as amended) states that, ‘Every person who is charged with a criminal offence
shall be presumed to be innocent until he is proved guilty’.
He further submitted that
those whose names are on the list and have been so pronounced as looters by the
Federal Government though its Minister of Information and the pronouncement was
widely communicated to the third party in this case, the Nigerian citizens
according to him have every right to sue the Federal Government since they have
not been charged to court.
“They can sue for defamation or libel. I think
one of them, Uche Secundus, has done that. However, any of them suing have to
be very careful too because as it is said he who seeks equity must come with
clean hands. In other words, it’s not just approaching the courts but you must
not have skeletons in your cupboard because the Federal Government who will be
defendants in the matter may have strong evidence against and would plead
justification in their defence.
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| Barr Sok |
“On
the political aspect of the list, I think the Federal Government misjudged the
feelings of Nigerians. It is true that the opposition PDP dared the APC
Government to produce the list of the looters. Perhaps for some political
expediency, the APC Government published only those of the opposition believing
that Nigerians would not scrutinize the names from an equitable point of it. As
you can see in both the social and traditional media, Nigerians have reacted to
the list and have consigned the list as political and nothing more.
“For
instance, they say the APC has become a safe haven for looters who want to
avoid prosecution by the anti graft agencies but those who have vowed to remain
in the opposition are the ones being prosecuted.
My take is that much
as corrupt individuals should be prosecuted, the list so far released by the
Federal Government is already tainted and has lost its credibility. The
government should review it and be holistic to include those corrupt ones
under it rather than embarking on media trial
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