Journalist Jalingo’s trial: Masked witnesses divide lawyers

Court order

By Onozure Dania

Justice Simon Amobeda of a Federal High Court sitting in Calabar, Cross River State, last week, granted leave to the prosecution to present masked witnesses to give evidence in its case against journalist and rights activist, Agba Jalingo.

Jlingo is a facing four count charge of terrorism, treasonable felony and attempt to topple the Cross River State government over a story he published, critical of the state government.

In this edition, Law and Human Rights sought the views of lawyers. Those who spoke on the development were divided in their views on the court’s decision.

Ige Asemudara:

That case is a facade. What is the basis of granting leave to the witnesses to mask?

Away from that case, it is part of fair hearing for the court and the parties to even observe the demeanour and countenance of the witnesses called in any case. The adverse party also has a right to cross-examine the witness, to discover his station in life, even his identity, background, etc.

What is special in that case? 

How is it conceivable that someone wants to topple the government of a state in Nigeria?

Emmanuel Ochai:

It is laughable that Nigeria has gotten to a point that any attempt to criticize the government is viewed in certain quarters as treason or treasonable felony. The government has to be more tolerant of persons who criticize it. Freedom of the press and freedom of speech are critical ingredients in any democracy and the courts should be wary of becoming willing tools in the hands of tyrants who masquerade as democrats.

Chief Morah Ekwunoh:

Without prejudice to sub judice rules, the learned trial judge’s order allowing prosecution witnesses to appear and testify, while being masked, lacks legal desideratum, due to its clear affrontation on the fundamental principle of fair hearing to which the defendant is entitled to by virtue of Section 36, sub-sections 1 ,2 and 3 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, as their inalienable fundamental human rights, the imports and purports of which the Supreme Court has emphasised in series of cases.

Sections 36, Sub-sections 1, 2, and 3 of the Constitution (supra) read: 1. “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing”;

2;”A person charged with criminal offences, is entitled to a fair hearing within a reasonable time by a court of law”; and

3 “The proceedings of a court or the proceedings of any tribunal relating to matters mentioned in section 36( 1) shall be held in the public.”

The sacrosanct nature of this cardinal principle of adversarial or accusatorial system of adjudication, which arose and was recognised from creation, as shown in The Holy Bible, The Book of Genesis, Chapter 3, 1- 24, to which our pious religious minds can attest, when God, with all His might’s and powers, sent and banished Adam and Eve out of Eden only after granting them fair hearing by, first, asking and getting answers as to why they ate the forbidden fruit.

The Supreme Court also laid down and emphasised the principle to be followed to ensure due and strict observance of fair hearing in EZICHUKWU Vs ONWUKA (20005), (Part 280)1514 at 1542 when it emphatically castigated courts’ sittings in Chambers, stated thus:”Fair hearing is a hearing which is fair to all parties to the suit, plaintiff, defendant, prosecutor or the defence. It is a doctrine of substance and the question is not whether Injustice has been done because of lack of fair hearing, rather entails doing, during the course of a trial, all that will make an impartial observer believe that the trial has been balanced to both sides”.

In all these, preponderance of fair and reasonable Nigerians can only see a trend of desperate executive lawlessness, if not rascality, to silence reasonable voices of dissent and opposition no matter how well-meaning and intentioned they may be; and to wet grounds for soft-landing of harsher and clearly anti-people economic policies and programmes, as hallmarked by the current budget of taxations, which trend is now spreading with the speed of light, like harrmattan wildfires, starting with the likes of Omoyele Sowore; now catching up with the likes of journalist and rights activist, Mr Agba Jalingo; and still having numerous others within it’s votex, all being done through the instrumentality and fiat of foisted and hoisted false, orchestrated and trumped-up charges of insults to the President and, now, Governors, terrorism, treason and treasonable felony classifications, which charges will eventually fall and collapse like a pack of cards, though, most unfortunately, not until it would have wrought monumental havoc, damages, anguish and deepest laceration of body and feelings on those at the receiving ends of such state- sponsored legal affrontations.

Chimaobi Onuigbo:

The law is that the prosecution has the right to provide any witnesses it seems relevant to prosecute its case.

The law also is that if a witness is relevant then he must appear in court to give evidence. In fact, the court can compel a witness to give evidence if his evidence is crucial to the determination of the matter.

In the instant case, if the witnesses are crucial to the determination of the matter then they must appear in court to give evidence.

Accordingly if the security of the witnesses that are crucial is in doubt the court can sue motu or by an application mask the witnesses.

This is because the witness who is protected would have the confidence to give evidence in court without fear of molestation when under cover. Although the court beeves’ the demeanour of a witness this can be deduced without looking at the face of the witness. The voice and body language can help the court infer the evidence of the witness.

In many other jurisdictions like in Canada, the Supreme Court opened the door to witnesses testifying in court while wearing the niqab, covering their face.

This is somewhat similar to ours. Although theirs is based on religion ours is based on security.

In Obanikoro’s case, the Federal High Court allowed the witness to give evidence with a closed face.

In Henry and Charles Okah’s matter, the court allowed the witness from the state, to cover his face.

This is targeted to safeguard the life of witnesses who came to court to help the court reach a just determination of the matter before it.

Ikechukwu Anima:

It is profoundly unlawful, unconstitutional and contravenes the evidence Act. Pursuant to section 36(6) (d) a person charged for a criminal offence is entitled to inspect his witnesses and if the witness is masked, it has constitutionally denied the defendant his right. Secondly section 126 (a)(b)of the Evidence Act posit that a person shall give oral evidence of what he heard or seen, so a witness who is masked cannot be decipher whether he/she has eyes to see or ear to hear since he is masked so testifying through a masked witness is both unlawful and and unconstitutional.

Yemi Omodele:

The decision of the trial court is appealable which urge his legal team to explore. I think it is not in line with the spirit of fair hearing. The rule of trial is that the trial Court should observe the countenance of witnesses. Therefore how will a judge observe the demeanour of a witness who cover his face? 

The court may be misleading in the trial and the true identity of the person testifying. I am not sure the provisions of ACA cover such decision and if it does it should be challenged by legal minds. Criminal prosecution should be transparent. 

What are they hiding? 

He who alleges must prove.

Eyo Ekpo, former Attorney General of Cross River State:

Criminal procedure permits witnesses to be masked or for their evidence to be given outside public view, if the circumstances warrant it. Nothing extraordinary, therefore, about the order. I really have no concern about whether the witnesses are masked or they give evidence in camera

I just want two things – first, bail for Agba and, second, a very speedy trial. 

The earlier these two are done, the better. Anything else is a distraction.

Source:Vanguard