Secrecy of Terrorism Trials in Nigeria

Introduction

 The recently-enacted Practice Directions on Trials of Terrorism cases at the Federal High Court, have brought to the fore the constitutionality of secret trials in Nigeria. Issued by the Chief Judge of the court, they took immediate effect (from the 5th day of April, 2022), and apply to all trials of cases under the Terrorism (Prevention) Act, 2011, as amended, (TPA) which are being conducted and will be conducted in the Federal High Court (FHC).

Overview

Order III of the Directions is of particular importance and it provides, inter alia, as follows:

1. “Proceedings of offences of terrorism, subject to the provisions of Section 232 of the Administration of Criminal Justice Act, 2015 and Section 34 of the Terrorism (Prevention) Act, 2011 (as amended), shall be held in camera or as may be ordered by the court”  

2. In any proceedings where  the court deems it necessary to ensure the safety and/or protect the identity of the victim or a witness, it may take any or all of the following protective measures:

e. Direct that all or any part of proceedings of the court shall not be published in any manner;

f. Exclude from the proceedings any person other than the parties and their legal representatives”.

 Additionally, Order IV of the Directions provides as follows:

“1. Coverage of proceedings under these Practice Directions is strictly prohibited, save as may be directed by the court.

“2. A person who contravenes an order or direction made under these Practice Directions shall be deemed to have committed an offence contrary to Section 34(5) of the Terrorism (Prevention) Act, 2011 (as amended”.

Analysis

The Directions were issued pursuant to Section 254 of the 1999 Constitution which provides that “Subject to the provisions of any Act of the National Assembly, the Chief Judge of the Federal High Court may make rules for regulating the practice and procedure of the Federal High Court”.

Section 44(1) of the Federal High Court Act provides, inter alia, that: 

“The Chief Judge may, with the approval of the National Council of Ministers, make rules of court for carrying this Act into effect”    

Did the Directions receive the blessing of the National Council of Ministers (now the Federal Executive Council)? It remains to be seen.

Beyond this however, of even greater importance is the constitutional guarantee of open or public criminal trials conferred by Section 36(4) of the 1999 Constitution which provides that “Whenever any person is charged with a criminal offence, he shall, unless the charges is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court of tribunal”

This provision is admittedly not immutable, as the proviso thereto qualifies it thus:

“(a) Provided that a court or such a tribunal may exclude from its proceedings persons other than the parties thereto or their legal practitioners in the interest of defence, public safety, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interests of peace”.

“(b) If in any proceedings before a court or such tribunal, a Minister of the Government of the Federation or a Commissioner of the Government of a State satisfies the court or tribunal that it would not be in the public interest for any matter to be publicly disclosed, the court or a tribunal shall make arrangements for evidence relating to that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter.”

I believe the language of Section 36(4)(a)&(b) makes it clear that the power it confers is given to “a court or a tribunal”, and not the Head – albeit administrative – of a particular set of courts, which consists of multiple members, all of whom are co-equal in terms of powers and functions under the Constitution. This is the case with the Federal High Court, under Section 249 of the Constitution. To hold otherwise would be to equate the Chief Judge of the Federal High Court with the entire court. He is not.

Accordingly, in my view, the power to exclude members of the public from or secrete any matter in any given case, rests in the specific Judge of the Federal High Court who presides over that case – not the Chief Judge, who, as previously stated, is really only primus inter pares (the first among equals). I believe that this view is consistent with Section 34 of TPA which also refers to “the court”, that is, the Federal High Court, and not its Chief Judge. That provision is virtually identical with those of Order III Rules 2-3 of the Directions. To that extent, I submit that the former have covered the field, and the latter are now otiose and inoperative. 

The same applies to both sets of provisions, that is, Section 34 of the TPA and Order III Rules 2-3 of the Directions, vis-à-vis Section 36(4)(a)&(b) of the Constitution: the latter has covered the field and displaced the former: AG of ABIA v AGF (No. 2) (2002) 4 S.C.1 at 369; Hon. Minister of Justice & AGF v AG of Lagos (2013) All FWLR Pt. 704 PG. 1. In Ishola v Ajiboye (1994) 6 NWLR Pt. 352 pg. 506 at 573D, the Apex Court held that “the Constitution is supreme not only when another law is inconsistent with it, but also when another seeks to compete with it in an area already covered by the Constitution”.

Additionally, I believe that, even though Section 36(4)(a)&(b) of the Constitution is silent on the point, it can reasonably be implied that, before an exclusionary order is made in any given case, the court ought to invite addresses from counsel in a terrorism trial on the propriety of making such order. In other words, the provision is permissive and not mandatory. This is because, it is trite law that before any person or institution makes a decision which will affect a person’s civil rights and obligations, it must give such a person an opportunity to be heard. Obviously, an order to shut out the public from or secrete any matter in a suspect terrorist’s trial will impinge on his or her right to fair trial in public guaranteed by the self-same Section 36(4) of the Constitution. It’s proviso cannot be stronger than the main provision, as the tail cannot wag the dog. 

The upshot of the foregoing in my view, is that the relevant provisions of the said Practice Directions are ultra vires the Hon. Chief Judge of the Federal High Court (with the greatest respect), null and void. They constitute an overreach, because, under the Constitution, it is the prerogative of an individual Judge of the Federal High Court who is trying terrorism offences, to make such order as the justice of the case may demand – and only after hearing the parties, not suo motu.

Evidence and Related Provisions. 

Beyond the invalidity of the secrecy provisions of the Directions, I believe other parts thereof are also problematic. These include the provisions of Order III Rules 3(b) and (d) which respectively empower the court “to receive evidence by video link, and to receive written depositions of expert witnesses”. I believe that they are inconsistent with the provisions of Items 23 and 68 of the Exclusive Legislative List as well as Paragraph 2(b) of Part III of the 2nd Schedule to the Constitution which confer on the National Assembly the exclusive power to make all rules of evidence – both substantive and adjectival. 

Also of doubtful validity, in my view, is Order IV Rule 2 which provides that “a person who contravenes an order or direction made under these Directions shall be deemed to have committed an offence contrary to Section 34(5) of the Terrorism (Prevention) Act, 2011 (as amended)”. As previously submitted, this provision is otiose and inoperative because the National Assembly has already covered the field vide Section 34(5) of the TPA. 

Finally, the provisions of Order II which apply to the perimeters of the Federal High Court, appear to fall more within the purview of security agencies than the Chief Judge of the Federal High Court – with profound respect. This is because, it is surely a stretch to include a court’s perimeters within any code for regulating practice and procedure during its proceedings. The simple reason is that a court does not extend to it’s perimeters, and the Chief Judge’s powers over practice and procedure are restricted to proceedings within the four walls of the court, not it’s precincts – let alone it’s perimeters.