Section 36 subsections 5 of the 1999 constitution of Nigeria as amended presumed every person who is charged with criminal offence as innocent until such person is convicted by a court of competent jurisdiction. Needless to say, those sections added that nothing in them should invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.
The provision also falls in consonance with African Charter on Human and Peoples’ Rights, which is also known as the Banjul Charter, an international human rights instrument that is intended to promote and protect human rights and basic freedoms in the African continent. Nigeria was part of the 54 African Union (AU) member states that ratified the treaty in 1983. By the virtue of this provision, the liberty and privacy of criminal suspects under the law of the land are protected beyond any orchestrated intent of the law enforcement agency.
Obviously, the law enforcement agencies in Nigeria who are constitutionally bound to protect citizen’s lives and property, and manage security architecture of the country, are violating the position of section 36 subsections 5. In an attempt to justify the discharge of the entrusted responsibility, suspects of crime and criminality suffer character assassination, while being paraded before the media even before they are found guilty by the court.
This however brings the question of the legality or otherwise of revealing the identity of suspects through media parade, prior to when the suspect is charged with a crime in court. In other more civilised jurisdictions law enforcement agencies diligently investigate crime and come up with concrete evidences that would aid in the conviction of suspects. Then, they arrest suspects and subsequently charge them to court for trial. Unfortunately, Nigerian system operates in reverse.
Professor of law at Bayero University, Kano and a Senior Advocate of Nigeria (SAN), Mamman Lawan Yusufari believes such tendencies portray suspects as guilty in the eye of the society, thereby constituting defamation to the reputation of their characters. “A suspect is protected by the constitution because the law says if a person is suspected to have committed an offence, he/she is a suspect. When you charge the person to court, the name changes to accused person or a defendant. When trial starts, he may plead guilty or not guilty after the charges are read to the fellow. If he pleads guilty, the court may convict him, depending on the nature of the offence. That is called summary trial.
“After conviction, following summary or normal trial where witnesses and other evidence are taken, the court will deliver judgment by either convict the fellow or discharge and acquaint the accused. If the accused person is convicted, the name changes from accused to convict. At this stage, the media can pronounce to the whole world that the person is a criminal. Before you get to this stage, the constitution under section 36 (5), says the person charged with a criminal offence shall be presumed to be innocent until he is proved guilty,” Mamman said.
According to him, that is a fundamental right under section 4 of the constitution. If the media report a suspect of crime by a means of showing the face or mentioning his name on the newspaper, he argued that it is as good as convicting the suspect in the eye of the public. Mamman said such is fundamentally wrong because it is only a court that can pronounce suspect guilty and convict an accused person.
Another Kano based legal mind, Bar. Usman Umar Fari expressed worry over the situation where security agencies take undue advantage of the media to criminalize suspects, who are not yet pronounced guilty by the court of law. Unlike Prof. Mamman, Fari said suspects could be paraded before the media but under discreet caution, which will not unravel their identity, character and nature of the suspects.
“If somebody is arrested based on reasonable suspicion, the Police can parade such persons based on fact. And to parade somebody not based on fact, may constitute infringement of his right and the implication is that the suspect can sue the police. Secondly, the media must be conscious in reporting crime and avoid tagging suspects in criminal identity. The proper way to handle cases of that nature is to allow the suspect to voice his side of the story and not to allow the Police to dominate the show. If, at the end of trial, court discharge and acquaint the accused, the person can sue for defamation of character,” Fari suggested. He also suggested that the media that publish such parades are equally guilty.
His words: “I will blame both the Police and media. The police can invite the media to disclose arrests made and reveal the nature of offence and items recovered. The revelation must stop at that point. The Police should not go further to allow media men reveal the identity and faces of the suspects. Cameras should not be allowed. Names should not be mentioned. On the part of the media, they have the responsibility to report without necessarily divulging the suspect’s identity or names to the knowledge of the public. If that is allowed, you are stigmatizing and criminalizing the suspects in the face and mind of the public and it is wrong in law.”
Fari claimed that the security agencies would be wrong to draw conclusions against the suspects in the name of self-confession.
But a specialist in Media Laws and Ethics, Dr. Abubakar Alhassan thinks differently. He insisted the media has not crossed the legal right of suspects for reporting incidences already in public domain. The senior lecturer at the Bayero university, Kano, wondered why the media would be held responsible for prejudice and reporting what the constitution had already certified it to do?
Citing chapter 2, section 22 of 1999 constitution, Dr. Abubakar argued that the media has the responsibility to hold the government accountable for the people. He said: “It is the constitutional power given to the media to hold the government responsible and accountable to the people, ensuring the police, the courts and other agencies of government do their jobs”.
According to him, there is no interval between when suspects are paraded at police custody and when they are charged to court. If you accuse the press of reporting the criminal allegation at a police station, he asked, would you still accuse the media of reporting the same case during court trial? He said: “If you ask me, I will say nothing has changed. It is still a suspect, from the police headquarters to the courtroom and until the final ruling of competent jurisdiction; the suspect remains innocent.
“If somebody commits crime, I don’t see a reason why the police should not make it public through the media, after all, the matter is already in the public domain. And I believe the Police should start taking fingerprints and pictures of suspects in case they escape, the evidence will be used to declare the suspect wanted. Already, the constitution says a crime suspect is entitled to fair hearing in public not in secret or private. That is constitutionally guaranteed. So if the constitution says a suspect is entitled to fair trial in public, what stops the media from reporting that trial before the public to ensure justice is administered in accordance with the law?”
A criminologist, Dr. MaiKano Madaki stated that police could enforce a parade on suspects during investigation, since the fundamental rights of suspects are relinquished when police investigation begins. However, Madaki stressed that the law did not allow police to pre-empt whether suspects are guilty or not before the media and public. “When someone is suspected to have committed a crime, the person’s fundamental human rights are suspended because being a suspect; you are technically relinquishing those rights. That’s why during investigation, the suspect’s house may be invaded, property impounded, some certain document seized. You may no longer have freedom to your privacy, movement restricted, your speeches restrained and you are detained even while you are charged to court and standing trial.
“The law enforcement agencies must have linked all sufficient evidence to the suspect because what is critical in any criminal investigation and prosecution is linking the crime to the suspects. However, the suspect will remain innocent until proven guilty by a competent court of law. Perhaps, this is one of the fundamentals that police mostly rely on before parading their suspects. Police is not empowered by constitution to declare or pre-empt suspects, only the courts reserve that right,” he argued.
Dr. Madaki argues that parading suspects before the media has no value to the investigation. Police, he reiterated are entrusted to investigate, arrest, and submit a report of its investigation and file charges before a competent court of jurisdiction for legal prosecution. “For me, there is nothing like parading suspects before the media. What the police are doing is an informal system of social degradation ceremony where suspects are taken to the marketplace to stigmatize and disgrace them in social prosecution. Even before police can declare suspects wanted, display his picture, name and identity to public, they must approach the court for ruling,” he insisted.