Corruption: How to Suspend Fair Hearing & the Presumption of Innocence

Our constitution gets a great deal of bashing, especially when reform is the subject being discussed. It’s not a perfect document — there is no perfect constitution at any rate — but it is actually quite robust, particularly in the matter of the rights of the individual citizen. Many of our political leaders and law enforcement officials may act otherwise but constitutionally we are quite clearly a liberal democracy. I would enjoin everyone to buy or download a copy of the Nigerian constitution and read Chapter 4.

Section 36 of the Constitution, in said Chapter 4, is our bill of rights for accused persons. As the constitution is the supreme legal document of the land, it means that any prosecution of accused persons contrary to these provisions is unlawful. As an anecdotal digression, my Criminal Procedure lecturer would frequently say, during our law school year, that criminal trials were the one place a Day 1 lawyer could take on an experienced Senior Advocate of Nigeria. The reason is that offences are broken down into components that the prosecution must establish. For example, the section might say, ‘if a person does A, B and C, then he is guilty of offence X.’ As such, if the accused is charged of offence X, but only A and C can be proved, guess what happens? That’s right. The accused person ‘walks’.

With that in mind, let us take a closer look at how accused people should expect to be treated. First of all, they are entitled to a fair hearing, within a reasonable time by an independent and impartial adjudicator. The proceedings are to be held publicly unless a Minister or Commissioner of the Federal or State Government, respectively, can satisfy the court or tribunal that it would not be in the public interest for the matter to be publicly disclosed.

Further, every accused person is presumed innocent until proven guilty. No accused person can be compelled to give evidence at their own trial. Laws cannot be backdated to turn previously non-offences into offences, or to increase the punishment due at a time an offence was committed. No one can be found guilty of an offence unless it is specifically created and a penalty prescribed by an Act of the National Assembly or law of a State House of Assembly.

Why is the presumption of innocence so fundamental to fair hearing? Why, in a country with such a severe corruption problem as ours, can the provision not be suspended? Well, there are a few challenges to doing so. First of all, Nigeria is a party to the Universal Declaration of Human Rights, many of the provisions of which are replicated in Chapter 4 of our constitution. Nigeria has also ratified several United Nations Human Rights Instruments, including the International Covenant on Civil and Political Rights (ICCPR), which also reinforces the presumption of innocence and other fair hearing rights. It seems that suspending the rights are likely to trigger a not insignificant diplomatic stand-off between Nigeria and the international community.

Secondly, as it is a constitutional principle, suspending it would require a constitutional amendment. This means, in addition to being passed by a two-thirds majority in each house of the National Assembly, it would need to also be passed by a two-thirds majority in at least 24 state houses of assembly. For such a far-reaching reversal of rights, it would require an unprecedented amount of politicking for the measure to pass at all the required levels.

Thirdly, as we are constitutionally a liberal democracy, we would have to justify the philosophical summersault. The jurisprudential basis for the presumption lies in the fact that the state is all-powerful and unchecked can use this immense power to deprive anyone it wishes of life or liberty. Further, because to unfairly deprive a person of their life or liberty is such a grievously unjust thing, jurisprudential wisdom is that ‘it is better for a thousand guilty men to walk free than for an innocent man to be unjustly deprived of his life or liberty.’ It is the greater evil to imprison an innocent man or woman, than to let hundreds of innocent people walk free. This is the reason for the maxim ‘he who alleges must prove’ and further, that prosecutions are required to establish guilt beyond reasonable doubt.

If we suspended the presumption of innocence, would we be repudiating the foundations of our criminal justice system? Would the prosecution still be held to the standard of proof beyond reasonable doubt? If not, is that not potentially a terrible thing — for if we could use those measures to convict those we strongly suspect of embezzling public funds, could they not be quickly abused and turned against innocent people the state disapproves of?

It seems from the foregoing that unless we suspend democracy and revert to military rule or a totalitarian civil regime, it will be impossible to suspend these rights for accused people. And if we cannot suspend them, we must adhere to them, for what is their use otherwise? In a Federal government with at least 5 Senior Advocates of Nigeria as members of the cabinet, adhering to constitutional safeguards should be fairly straightforward to do.

This article was originally published in The Guardian on the 22nd of November 2016.