ON THE LOOTERS LIST
On Sunday, April 1, 2018, when Christians all over the world were celebrating the resurrection of Jesus Christ, who was said to have taken away the sins of the world, the Punch Newspaper reported that the Federal Government of Nigeria released to the world an updated list of those it alleges have committed the sin of looting.
According to the Federal Government, the bearers of the names on the list have looted the country and are responsible for the economic hardship the country is going through at the moment.
In the list released thus far, there are ex-ministers, ex-governors, former and current senators, campaign chiefs and party leaders among others. The Daily Post on March 30, 2018 reported that the decision of the All Progressives Congress-led Federal Government to reveal the names of the alleged looters and the funds they allegedly stole was on the heels of the challenge of the opposition People’s Democratic Party to the APC-led government to name those alleged to have looted Nigeria and to have left her economy in a sorry state.
However, the million dollar question is whether or not the release thus far by the Federal Government is in order legally.
Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides that every person who is charged with a criminal offence shall be presumed to be innocent until he is proven guilty, of course, by a court of competent jurisdiction. This means that, according to the law, a person did not or has not committed an offence unless the court, which is under the judicial arm of government, is satisfied to the contrary and such person shall be so deemed until that happens. This principle of presumption of innocence was established by the Supreme Court of the United States in the case of Coffin v. United States, 156 US 432 (1895), where the court held that the principle that there is a presumption of innocence in favour of an accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of criminal law.
Now, given the above, except a competent court in Nigeria has declared any person named in the list of looters compiled so far guilty, then they are all innocent. Also, legally, it is only true that a person did commit or has committed an offence if the competent court has established such truth. So, it remains legally false for a person not being a court of competent jurisdiction or a judge or justice of such court to declare that a person has committed an offence and to announce such declaration to the media.
The media is not the place for a person presumed innocent by our ‘grund norm’ to be declared guilty. The correct place to so much as accuse a person of committing an offence is the competent court of law.
The Federal Government has stated that those named in the list compiled thus far have committed offences ranging from corruption, bribery, obtaining by or under false pretence and abuse of office among others. All of these offences are provided for in our laws especially the Criminal Code Act Cap C38, Laws of the Federation of Nigeria (2004) and the Corrupt Practices and Other Related Offences Act Cap C31, Laws of the Federation of Nigeria.
Chapter 12 of the Criminal Code Act (supra) provides specifically for offences under corruption and the abuse of office. Therefore, the various things the looters are allegedly guilty of are all offences under our laws.
The action of the Federal Government raises a lot of legal issues such as separation of powers and defamation. Clearly, by making sure that the names of persons, who are, under our law, innocent of any offence, appear in our dailies as offenders who had committed certain offences in a manner which suggested that the Federal Government had already thought them guilty and, as such, was punishing them by announcing them and their crimes, the executive arm of the government at the centre has gone ultra vires. In fact, their motive is wrong. You should not commit an illegality because your opponent dared you to do so.
According to a report of the Daily Post on March 30, 2018, the Minister of Information and Culture, Alh. Lai Mohammed conceded that not all the people named in the list have been tried. On the contrary, in an interview with the Minister reported on eagleee.com, an online news platform, all the cases of alleged PDP looters are in court.
The questions then are, why release their names since they are already in court answering to the offences you are accusing them of? Why waste your time when, undoubtedly, the media, which also reports court cases, will report it?
If it is true that not all of those named have been charged to court, then why could the Federal Government not simply charge them to court instead of publishing their names in a list of people who have already been declared looters and the amount they each have must have stolen?
Chief Ferdinand Orbih (SAN) has an answer to this last question. According to a report of The Nation on April 3, 2018, Chief Orbih stated that the Federal Government was wrong to have labelled Nenadi Usman, a person named in the list, a looter of funds when it had not yet proven the allegations against her in court.
To Orbih, by taking this matter to the court of public opinion, the government is making a strong statement either that it has no confidence in the process it initiated in court against her or it is bent on arm-twisting the judiciary to convict the accused at all costs.
Separation of powers is one of the pillars of democracy, a system of government we claim to practise in Nigeria. It is not for the executive arm to declare that a person has committed a crime or call a person, who is legally innocent, a looter of public funds; it is for the judiciary to so declare and apportion appropriate punishments.
The Federal Government clearly overstepped its boundaries by not just naming those who were in court answering to the offences with which they had been charged with the name of a convicted thief, it also violated the principle of separation of powers by appearing to have determined and established the guilt of persons not yet charged by releasing their names as though they had been charged and found guilty of looting.
If the Federal Government will not respect the law, then it means that the democracy we practise is not just a failed one; it is a false one.
For the tort of defamation to be grounded under our law, certain things need to be proven such as that the statement referred to the plaintiff; that the statement was false in fact; that the statement was published (that is, it was communicated to a third party or many of such) and that the statement was capable of lowering the plaintiff’s reputation in the estimation of right-thinking members of the public. This was the court’s opinion in cases such as Emmanuel Bekee & Ors v. Friday Bekee (2012) LPELR-21270 (CA); Independent Newspapers Ltd v. Idiong (2012) All FWLR (pt 647) 677 and Daura v. Danhauwa (2011) All FWLR (pt 558) 991.
While not all of the persons named in the list so far may be able to successfully ground a claim of defamation because not all of them may be able to prove that the Federal Government’s allegations were false in fact (even if the Federal Government’s action thus far is fundamentally wrong in law), the ones who are truly innocent (not legally innocent this time) may be able to because, indeed, the Federal Government did in fact publish a list of looters to a wide range of people not limited to Nigerians and the ‘statement’ does refer to every person on that list and the action of the Federal Government was capable of lowering the reputation of those on the list in the estimation of right-thinking Nigerians and the whole world. The Federal Government could be liable to the payment of huge sums as damages. That would not be glorious for our government.
From the foregoing, it has been established that the Federal Government was and is fundamentally wrong in law for releasing a list of looters to the media.
Against this backdrop, I counsel that the government desist forthwith to produce or update any such list and allow the judicial arm of government do its job.
The Federal Government should do its due diligence, get enough evidence for a successful conviction and charge those they find to be culpable to court. The Federal Government should also concentrate on how it can better the lot of Nigerians for a list of looters right now is the least of our worries.