Looters’ List: incompatible with the Sub Judice Rule by Obioma Ezenwobodo

The word ‘sub judice’ is a Latin word meaning ”under judgment” or in literal term means ”under judicial consideration”. The sub judice rule is a principle under the law of contempt of court. The sub judice rule is to the effect that it is the exclusive duty and function of the court to deal with legal issues before it.
The basis for this received English law principle is to protect the authority, independence, image and integrity of the courts. Therefore, when a matter is in court or expected to be brought to court, no media trial or public statement that impugn on the authority of the court should be made by journalists, lawyers, executive, politicians or any other person. The key word here is ‘impugn’. In other words, statements are allowed to be made on matters before the court except those statements that impugn on the authority and integrity of the courts.
It is also germane to note that section 39(1) of the 1999 Constitution (as amended) provides for freedom of expression. The section reads: “Every person shall be entitled to freedom of expression including freedom to hold opinions and to receive and impart ideas, and information without interference.”
The above constitutional provision guarantees the rights of the citizens to freely air or express their opinions without hindrance of any sort. But there is a limitation to this seemingly limitless freedom of expression. Section 39 (3) created an exception to this freedom by providing that nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society (a) For the purpose of maintaining the authority and independence of courts. By implication, the above constitutional provision validates the sub judice rule that seeks to maintain the authority and independence of the judiciary.
Corruption has become a debilitating factor setting the country backward. The current government led by President Muhammed Buhari has been waging war against the cankerworm of corruption. The government through its Minister of Information Lai Muhammed released a list containing names of persons that looted Nigerian treasury. According to the Minister, those named in the list (otherwise known as Looters’ List) looted the national treasury empty. He asked them to return back the money they looted.
The proponents of the released looters’ list have hailed the action of the government and described it as a good step in stemming the tide of corruption in the country. To them, the nicesities of law should not obstruct the naming and shaming of corrupt persons in whatever means possible. On the part of the antagonists, such a list prejudices and impugns on the integrity of the courts when some of the alleged looters are already facing criminal trial. To them, the government should have, in accordance with the sub judice rule, not prejudged matters that are already before the courts. The antagonists also hold the view that the list amounts to defamation of characters of the alleged looters that are yet to be charged to courts.
Ours is a democracy that is anchored on rule of law, separation of powers and checks and balances. The three arms of government vis a vis the legislature, the executive and  the judiciary have their cut out functions and act as checks and balances on one another. While the legislature makes laws, the executive implements the laws and the judiciary interprets and punishes offenders of the laws. These functions are elaborated in sections 4, 5 and 6 of the 1999 Constitution (as amended)(hereby refers to as ‘the Constitution’). By virtue of Section 6(6)(a) of the Constitution,  the jurisdictional power to determine the guilt or innocence of any legal personality charged with a crime is solely vested on the judicial courts and not on the executive or any other person. Even when a person is charged to court, section 36 of the Constitution protects his right to fair hearing and fair trial.
Furthermore, no matter how grave or distasteful an offence is, an accused is still presumed innocent by the authority of section 36(5) of the Constitution. The Section (36(5)) provides that: ”every person charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
What can be deduced from the above constitutional provisions is that a person charged with a criminal offence is presumed innocent until he is declared guilty by only the court. Therefore, the duty of the executive is to diligently investigate and prosecute accused persons in accordance with the law and not to declare to unilaterally declare them as corrupt. To do otherwise will not only amount to prejudicing and impugning the authority of the judiciall courts but also a criminal act under our law.
This position is supported by section 133(1&9) of the Criminal Code Act, Cap C38 of the Laws of the Federation of Nigeria that provides thus: “any person, who while a judicial proceeding is pending, makes use of any speech or writing, misrepresenting such proceeding, or capable of prejudicing any person in favour  of or against any party to such proceeding, or calculated to lower the authority of any person before whom such proceeding is being heard or taken; or commits any other act of intentional disrespect to any judicial proceeding or to any person before whom such proceeding is being heard or taken, is guilty of a simple offence and liable to imprisonment for three months”.
The English court also shares the same view by holding in A.G. v TIMES NEWSPAPERS LTD (1972) 3 ALL ELR p.1136 at p.1144 where Lord Reid opined thus:
“I think that anything in the nature of prejudgment of a case or of specific issues in it is objectionable not only because of its possible effect on that particular case but also because of its side effects which may be far reaching.”
Our judicially has also cautioned against making statements that pre judice the authority of the courts on matters that are sub judice. On the 21st of March 2017, Justice Gabriel Kolawoleh of the Federal High Court suspended the corruption trial of  Military Assistant to former National Security Adviser, Colonel Sambo Dasuki (rtd), Colonel Nicholas Ashinze by the Economic and Financial Crimes Commission (EFCC) over an alleged falsehood and media trial engaged by the anti-graft agency against the military officer.
Justice Kolawole in a short ruling held:
“It is unfair for EFCC as a complainant in this trial to resort to self-help by engaging the defendant in the media trial at the same time in the court trial.
“If you want to try the defendant in the media, you have to limit yourself to the media. You have to stop misleading the public in the fact of this trial.
“Let me say it for the sake of emphasis that EFCC must stop the use of journalists to distort proceedings in my court. You cannot be engaging in two trials: one in the court and one in the media at the same time…”
As if the judiciary had a premonition of the current sad events, the Hon, Chief Justice of Nigeria on 10th of January 2018, admonished and cautioned the public against making prejudicial statements on matters before the court. The Hon. CJN in directing judges to exercise their contempt power on unguarded statements that impugn on Courts’ integrity stated thus:
“Attention of the Honourable, the Chief Justice of Nigeria (CJN), His Lordship Hon. Mr. Justice Walter Samuel Nkanu Onnoghen, has been drawn to the emerging and continued practice of discussions of matters that are sub judice in the print and electronic media, such as the issues concerning the Anambra State Central Senatorial District dispute. The CJN wishes to remind the general public that it is Contempt of Court for anyone to discuss any matter pending in any Court of Law in the country. The punishment for Contempt may include a term of imprisonment.”
It is submitted that by the publication of the looters’ list, the integrity of the judiciary has not only been impugned but questioned by the action of the Minister who had asserted the guilt and culpability of persons still presumed innocent by the constitution. This is tantamount to self help by the executive, it is a pure case of taking the laws into its hands. The executive has constituted itself to an accuser, a prosecutor and the court. What then happens if at the end of trial of the ‘looters’, the judicial courts find them not guilty? How would the ‘not guilty verdicts’ be viewed, accepted or respected by some  members of the public who have been made to believe the ‘looters’ are guilty? That is the inherent danger!
The executive should heed the cautionary advise of the CJN and concentrate on ways to step up investigation and prosecution of corrupt offenders so as to eradicate the menace of corruption. Anything apart from this will amount to fighting corruption in ways that offend the extant laws of the land. Such does not yield any positive result.
Obioma Ezenwobodo Esq is an Abuja based Legal Practitioner and can be reached on obiomadan@gmail.com, [email protected]

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