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Alleged looters’ list: Open justice or open season? (2)

Buhari-Lai-Mohammed

Buhari, Lai Mohammed

Abdulsalam Ajetunmobi

Continued from Monday

Again, in Rogers v Television New Zealand Limited [2007] NZSC 91, the Supreme Court of New Zealand considered the application of the open justice principle in a case about a police videotape of an interview with a suspect who was subsequently acquitted of murder. In the interview, Mr Rogers admitted killing the victim and re-enacted the way in which he had done so, but the interview was ruled inadmissible at his trial because of the circumstances in which it had been conducted. The respondent television company was given a copy of the videotape by the police officer in charge of the case and proposed to broadcast it. Mr Rogers obtained an injunction against the television company to prevent its broadcast, but the injunction was set aside by the Court of Appeal. The Supreme Court, by a majority of three to two, upheld the decision of the Court of Appeal, apparently to incite widespread moral indignation against the appellant.

The decision in Rogers above reflects the UK Supreme Court’s views about the requirements of open justice in a recent case, Khuja (formerly PNM) v Times Newspapers Ltd and Others [2017] 3 W.L.R. 351. In this case, the Supreme Court dismissed the appeal of a former suspect who was investigated though never charged, but whose name was uttered on a number of occasions in open court in criminal proceedings for child sex offences. The trial attracted considerable media attention and two respondent newspaper publishers and their reporters wished to publish information identifying the suspect as a person suspected of involvement in serious offences of child abuse of the police investigation without charge. The suspect initially sought an injunction at the High Court against putting his name in the public sphere to protect his rights to privacy and family life and the judge rejected his application, and this was affirmed by the Court of Appeal. On the suspect’s appeal, the Supreme Court held that the trial judge, Judge Rook QC, had not erred in his approach to the assessment of the competing rights of the press and the public against the man. Adding that an anonymity order made under the UK Contempt of Court Act 1981 s.4(2) was revoked and the appellant should be openly referred to by his real name.

 Khuja is of special relevance to the current Federal Government looters’ lists. For, it is often said that opening up the closed, secretive world of any proceedings is essential to the quest for truth in public affairs. Usually, for an effective institution of government, identifying and naming anyone involved in the commission of a crime are important in the realisation of the goal of justice for the nation, coupled with the exposure of the suspected criminal to liability by determining individual guilt in a courtroom setting. Withholding names of corruption suspects from the public, therefore, is a derogation from the principle of open justice. Accordingly, where there is sufficiently substantial public interest in publication, naming corruption suspects before or after they are charged is a powerful tool for the achievement of justice.

 In this era of globalisation, almost all areas of professional, social and industrial activity are guided by global standards, including accounting and business reporting standards by International Financial Reporting Standards, technical standards by International Organisation for Standardisation  and electrical standards by the Institute of Electrical and Electronics Engineers. In relation to global legal standard, the legal implications of the Canadian, New Zealand and British courts’ views about the requirements of open justice provide an insight, from the common law world, that individual interests must give way to the public interest in maintaining confidence in the institutions of government through the principle of openness, which for our purposes, must include naming the names of corruption suspects.

 There may well, of course, be an objection that, because the looters’ lists contain only the names of corruption suspects from the opposition party to the exclusion of suspects from the ruling All Progressives Congress, the whole exercise is a witch hunt. That may not necessarily be the case because a witch-hunt, by definition, is an investigation to expose behaviour based on slight or irrelevant evidence. The Federal Government claimed that the lists were based on relevant and verifiable evidence. How then could corruption allegations which were based on verifiable facts, including the amount involved, the date the amount in question was collected and from where it was taken be considered a witch-hunt? These are not witch-hunts: the witches really exist. The allegations are there to be proved.

 Of course, it might be argued that, nevertheless, the accused, is presumed innocent until a court rules otherwise. True enough, there is an important difference between social media discussions of, and press reports about cases and legal judgments about the same cases. The former do not carry any legal weight, and the latter merit respect for their authority. Therefore, on the one hand, no matter how loathsome a case may be, the defendant is, therefore, entitled to the presumption of innocence under the law.

 On the other hand, having charges against the accused dropped or having charges against the accused dismissed in a criminal trial, is not the same thing as the accused being factually innocent. The O. J. Simpson civil trial in February 1997 is a typical example. There was a “preponderance of evidence”— a common standard of proof in civil cases — to support the conclusion that Simpson was not innocent, and hence, was responsible for civil damages. However, the same facts could not dispel all reasonable doubts in his criminal trial at the Los Angeles County Superior Court in October 1995, hence the jury’s not-guilty verdict. To this end, while the Federal Government cannot determine the guilt or innocence of individual corruption suspects through its publication of looters’ lists, it will suffice to say that the government has legal and constitutional powers to share information about corruption suspects. After all, having charges against the corruption suspect dropped or having charges against the corruption suspect dismissed in a criminal trial, is not the same thing as the corruption suspect being factually innocent.

Even so, institutional openness is essential if public confidence is to be maintained in the country’s fight against corruption. This includes the opportunity to know the identities of prominent corruption suspects who have held and are holding legislative, administrative, or judicial position of any kind, whether appointed or elected, through a periodic disclosure of their financial malfeasance, albeit grounded in relevant and verifiable evidence. Ultimately, all of us including, elected and appointed politicians, must be ready to take more responsibility for our actions, including paying the price for choosing to engage in financial malfeasance and other misdeeds when exposed or apprehended, whether through finger-pointing, public disclosures or by any other means. It is not enough to continue to abhor corruption in the abstract but tolerate it in reality. If we support vigorous apprehension, prosecution and conviction of corruption suspects wholeheartedly, then we must enjoin ourselves to see naming of corruption suspects, not as a witch-hunt, but as a form of open justice. The Nigerian taxpayers deserve the highest ethical standards from any person in a position of public trust, no less.

Concluded

Dr Ajetunmobi is Director, AMRAS ResearchConsult (UK) Ltd based in London

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