The first time the question came up – whether witnesses in the case of Nnamdi Kanu should be masked, Justice Tsoho rejected the government request. It was the right decision. This is a case of treason, not terrorism. The facts of the case do not disclose any need for such unprecedented measure.
And who are these witnesses? They are people who would say they heard Kanu threaten to buy guns and bullets. They will be people who would testify how Kanu checked into a hotel in Lagos and how he had two passports on him and how none of them bore a stamp showing it was inspected at the border entry point.
Today, however, the same Justice Tsoho made a dramatic about-turn and granted the same request it had rejected before, allowing the state to present its witnesses masked or disguised. This has caused many people, and reasonably so, to assume that the long arm of the Nigerian state must have been stretched to soften up the judge and bring him to follow the dictates of the state.
As a lawyer, I am not going to say that a judge is being blackmailed by the Nigerian security forces. But as a matter of what is a possible or reasonable conclusion in this case, I can see the various ways such could have happened.
Most Nigerian judges are vulnerable to blackmail. They have skeletons in their cupboards, which the state could use as blackmail factor at any point in time. Did that happen to Justice Tsoho? I have no concrete evidence. But the judge’s sudden change is a thing that gives concern to many.
When would it be necessary for a witness to be masked? The Americans have addressed this concern in terms of the constitutional right of an accused person to confront an adverse witness. It is otherwise known as confrontation right. It is covered under the Sixth Amendment of the United States Constitution.
The Sixth Amendment right of confrontation was first pronounced upon by the US Supreme Court case of Maryland v. Craig, 497 U.S. 836 (1990). This case addressed the circumstances under which a criminal defendant can be denied a literal, face-to-face confrontation of an adverse witness during a criminal trial. What the decision of Justice Tsoho did yesterday was to deny Nnamdi Kanu the right to a face-to-face confrontation of the witnesses the state will be using against him.
There are many constitutional and due process issues that are raised when a witness conceals his face during his testimony in court. First, it tends to violate the presumption of innocence. There is no further belief that the accused is innocent and might be acquitted at the end of trial. The presumption is that he is going to be convicted and that the witnesses against him needed protection from a dangerous felon.
The second problem is that such disguise might restrict the ability of the defendant to cross-examine the adverse witnesses. Thirdly, the concealment of the eyes of the witness prevents the jury or judge (in Nigeria) to have that crucial eye-to-eye contact necessary for the testing of the credibility of a witness.
Against the above concerns from the defendant’s perspective is the concern of the state – that in extreme criminal cases where witnesses will not agree to testify unless disguised, the state might lose crucial witnesses unless disguise is allowed. This school of thought holds that the right to confront a witness should be waved in order to avoid losing the witness testimony.
The question then becomes that of how to balance between situations when disguise might be allowed or denied, and also the level of disguise that might be allowed. It is important to observe that this is the first time this issue is known to become a major issue in Nigerian courts.
Without trying to resolve this conflict here, it is important to examine why the Nigerian State is asking for permission to disguise witnesses here. It is clear that Nnamdi Kanu is not facing terrorism charges. There has not be an allegation that he committed violence. It is all about the making of broadcasts intended to force the President to change his policy.
But why is the government treating the case as if it were a terrorism charge? Note that initially the government charged Nnamdi with terrorism-related offenses at the Magistrate court. But the government withdrew those charges and is now pursuing instead speech-based offenses, though under treasonable category of offenses.
What is not clear to this writer at this point is whether Kanu’s lawyers effectively resisted the move by the government by relying on Section 36(6)(d) of the 1999 Constitution of Nigeria, which is Nigeria’s equivalent of the United States Sixth Amendment confrontation right. Section 36(6)(d) provided “Every person who is charged with a criminal offence shall be entitled to – examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court”
The right to examine the witnesses called by the prosecution is threatened when such witnesses are mere hooded heads or voices without eyes and facial expressions. That constitutional basis is the right basis upon which to challenge the state’s effort to have disguised witnesses in this case.
Now that the judge has ruled in favor of disguised witnesses, the matter has become an urgent appealable ground. The Nigerian Supreme Court is likely to set aside any conviction of Kanu on the ground that he was denied a constitutional right when denied the opportunity to examine the persecution witnesses without disguise. Hopefully, Kanu’s lawyers are thinking about this point.
In conclusion, the fact that the Judge has ruled in conflicting manner on this issue is troubling. It is an unsettled point of law in Nigeria. Justice Tsoho’s inability to maintain clear and noncontroversial ruling on this point is unfortunate, to say the least. It is wrong.
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