7th March, 2016
Ayorinde Oluokun/Abuja
Legal fireworks was on display on Monday as a Federal High Court ruled that witnesses lined up by the Federal Government to prove allegations of treasonable felony against Nnamdi Kanu, leader of Indigenious People of Biafra, IPOB, and his two co-accused can testify behind a screen.
The Judge also rejected application by defence counsel, Chuks Muoma (SAN) to dismiss the charges against Kanu and his co-accused and made an order that the Department of State Security Services should not arrest or arraign them on the same or similar charges.
Justice James Tsoho made the order following fresh applications by the prosecution for protection of the witnesses. Mohammed Diri, who is prosecuting the case on behalf of the Federal Government, on Monday morning when the case was about to start.
The prosecution counsel who is a director of Public Prosecution at the office of the Attorney General of Federation had told the court that the witnesses he intended to call to prove the allegations against the Biafran agitators said they will not come into the court until it is agreed that they will be shielded from members of the public who may come to witness the trial.
The prosecutor told the court that the witnesses said they are already receiving threats from the associates of the defendants that they will be dealt with.
“They said they are prepared to come and give evidence, but they love their lives the more. They request that their identity be shielded from members of the public who might be interested in coming to watch the proceedings,” Diri told the court.
He added that operatives of Department of State Security Services scheduled to testify in the case are also requesting for protection as they are already investigating other terrorism cases and don’t want their identities to be known.
The prosecutor further drew the attention of the court to an incident which happened between one of the defence lawyers and operatives of the DSS at the gate of the court earlier in the day.
Diri, who said he did not witness the event however read details of the altercation from a small piece of paper which he claimed officials of DSS involved wrote details of the incident.
The DSS officials had alleged that a lawyer in the defence team had contrary to the order of the court tried to forcefully bring in everybody that came to court to support Kanu into the courtroom, even after 13 family members of the IPOB leader have been allowed in.
This, he said, was in contrast to the ruling of the court that only close family members of the defendants should be allowed to witness the trial.
The DSS operatives also alleged that plans are being made to abduct Kanu during the trial.
The allegation however degenerated into controversies as Chuks Muoma (SAN) counsel to Nnamdi Kanu opposed Diri’s version of the event that took place at the gate of the court.
Muoma pointed out that it was Ifeanyi Ejiofor, a member of the defence team who was involved in the altercations with operatives of DSS at the court premises.
He subsequently called Barrister Ejiofor to tell the court what really happened.
The lawyer told the court that he was called by members of Kanu’s family to come to the gate of the court following refusal of the DSS men positioned at the entrance to the court to let them in.
But he claimed that some operatives of DSS had threatened to kill him in the course of his intervention.
“One of the DSS officials said he will kill me if I come out again and I draw the attention of the court to that. I only went to tell them to allow the family of the defendant to come in. Let it be on the record of the court that if anything happens to my life tomorrow, they should be held responsible,” said Ejiofor.
“This is the first time I am hearing that a lawyer is being threatened in the court premises. I have seen a lot of days in the Bar and I will not be part of the erosion of the majesty of the court. Once a lawyer is disrespected, nobody will be safe. If they don’t want to continue the case, let them say so,” Muoma said in support of his junior counsel.
Justice Tsoho however lamented that the trial has witnessed a lot of distractions, with a lot of time being taken to talk about security and so on.
He added that if everybody is feeling unsafe, then angels may be invited to try the case. The Judge ruled that while the court will not go into trial over whether a threat has been or not, the complaint made by the defence lawyer has been put on record.
Justice Tsoho consequently adjourned proceedings for one hour to enable the defence counsel respond to the application that the witnesses against Kanu and his co-accused should be allowed to testify behind a screen.
While opposing the application, Chief Muoma noted that the Court had ruled on the issue on 19 February when it refused government’s application for a secret trial.
He therefore said the court cannot rule on the same issue again and that the only remedy available to the prosecution counsel is to go on appeal.
Chief Muoma also posited that the defence counsel is not ready to prosecute the case. He backed his claims up with the history of the case from when Kanu was first arraigned before an Abuja Magistrate Court on 19 October, 2015.
The senior lawyer noted that the Federal Government had so far disobeyed three court orders granting bail to the defendants.
He also noted that there is no application before the court from the prosecution for a stay of proceedings and that the phone numbers of witnesses are not included in their statement of testimonies submitted to the court.
The lawyer added that the prosecution counsel did not place any concrete fact before the court to prove his allegations of death threats.
Muoma therefore urged the court not to succumb to sentiments arguing that the prosecution has proved that it can not open its case. He therefore asked the court to apply section 351 (1) of Administration of Criminal Justice Act to dismiss the case.
“The fact of the case make application of section 351 (1) of ACJA compelling and applicable because the prosecution is not ready to open its case and proceed with the trial. The right to fair hearing is guaranteed by the Constitution. The charges against the accused should be dismissed and the defendants should be discharged and acquitted and because the prosecution has not obeyed court orders in the past, the court should make an order that the defendants should not be re-arrested on a similar charge,” said Muoma.
But the Prosecution counsel opposed the application, arguing that the ACJA only specified that a case should be struck out if the complainant was not present in court.
“The issue before the court is that our witnesses are ready. They are definitely coming to testify before the court. Section 35 (1) of ACJA does not apply to the present case. It is talking about complainants, but we are all around. We have not told the court that our witnesses are not around. They are around. We are simply asking this court to vary its order,” said Diri.
While ruling on the application, Justice Tsoho said Section 351 (1) of the Administration of Criminal Justice Act mentioned must be considered in relation to the complainant in this matter.
The Judge ruled that the complainant in the case is the Federal Government represented by the Office of Minister of Justice and the Attorney General of the Federation.
He ruled that the office is represented in court by the Director of Public Prosecution who is prosecuting the case.
The Judge therefore ruled that the specific provision of ACJ does not apply in the matter before him as it is wrong to assume that the complainants are absent.
The Judge further noted that the request to allow witnesses testify behind screens was not different from its earlier ruling that the witnesses be allowed to use secret court rooms.
He said even though they will testify behind screens, the witnesses would be visible to the defendants and the counsel.
“In the light of this, the court is disposed to granting the application sought by the learned DPP,” the judge ruled.
But the drama was not over as the defence counsel asked the court for more explanation, arguing that the procedure is novel to him.
This forced the Judge to explain that screens have been used to protect witnesses during trial in the court before. He further argued that the use of screen is not the same as allowing witnesses to wear masks during trial.
“The defence is not comfortable with this arrangement. I have not experienced it in my 35 years of practice. I will have to consult with my clients or go to higher court,” said Muoma.
Justice Tsoho and the prosecution counsel also tried to convince the defence counsel that the procedure will not prevent him or the defendants from seeing the witnesses, though others who are in court will be barred from seeing them.
The Judge however asked him to contact the Registrar to find out more about the process when it seemed that he was not convinced.
Justice Tsoho therefore adjourned the suit till Wednesday, 9 March, when the prosecution said it will have all its witnesses in court.
However, it was not certain if the case will go on as a member of the defence counsel later told the court that the decision of the court to allow witnesses testifiy behind screens will be challenged at a higher court.
Kanu, who is also director of Radio Biafra, was arraigned before Federal High Court on January 20, 2016 on treason charges and other offences bordering on his agitation for the secession of the Republic of Biafra from Nigeria.
He was arraigned alongside Benjamin Madubugwu and David Nwawuisi.
The trio pleaded not guilty to the charges in which the Federal Government alleged that the accused persons committed treasonable felony by spear-heading an illegal agitation for the secession of ‘Biafra Republic’ from Nigeria, an offence punishable under Section 41(C) of the Criminal Code Act, CAP C38 Laws of the Federation of Nigeria.
The Prosecutor had alleged that the three accused persons were the ones managing the affairs of the IPOB, which it described as ‘an unlawful society’.
The federal government had on 9 February filed an application asking the court to protect its witnesses from the public during the trial of Kanu.
But in its ruling delivered on 20 February, Justice James Tsoho said the prosecution did not furnish the court with enough evidence to show that its witnesses were in danger, other than a mere mention by the prosecutor that its witnesses are scared for their lives.
Justice Tsoho who said he agreed with the Counsel to the accused persons that the demeanour of a witness is important in helping the court decide if he is a witness of truth or otherwise also held that the state has all of the resources to ensure that the witnesses in the suit are protected.
The Judge however ruled that the witnesses will be kept in undisclosed rooms during the trial while only lawyers, journalists and close relatives of the accused persons will be allowed into the courtroom during the trial.