On August 30, 2019, a journalist and publisher of news website CrossRiverWatch, Agba Jalingo was arraigned in Cross River state for disturbance of public peace and treasonon account of his writing and social media posts about Cross River Governor, Prof. Benedict Ayade.
Jalingo could face up to three years in prison for the charge on disturbance charge and up to life in prison for treason. He was arrested in Lagos on August 22, 2019.
The arrest followed his news report alleging that the Cross River State governor diverted N500 million naira belonging to the state.
The charge on disturbance of public peace emanated from a July 12 CrossRiverWatch article which alleged corruption linking Ayade and the Cross River Micro Finance Bank. The treason charge equally alleged that Jalingo agitated for Ayade’s removal through “various malicious publications” on CrossRiverWatch and social media.
The said article contains an editorial note identifying Jalingo as the Cross River state chairman of the African Action Congress party, founded by Omoyele Sowore, owner of the Sahara Reporters news website. Police arrested Sowore on August 3 for allegedly planning protests throughout Nigeria.
On Christmas eve, Sowore was released on bail after months long imprisonment that heightened fears of deteriorating protections for free expression in Africa’s most populous nation.
Authorities also charged Jalingo on two counts for terrorism, stemming from his alleged plans to work with Sowore, “cult members,” and a local prince to “commit acts of terrorism” to unseat Ayade, according to the charge sheet.
Meanwhile the National Association of Nigerian Students amongst other voices have been calling for his release.
National Public Relations Officer of the association, Mr Adeyemi Azeez, in a statement said turning deaf ears to the plight of journalists is a dangerous trend and therefore urged those involved to do the needful to secure his release.
“On Friday, Oct 4, the journalist and rights activist, Agba Jalingo, filed a bail application but was refused by a Federal High Court. Although the court has autonomous powers on cases before it, this development further increased the widespread rumours that state powers are behind his travail.
“The activist has been kept in custody for over 119 days even when his case is yet to be ruled upon by a competent court.”
Igbo National Council a few days ago issued a 14-day ultimatum to Governor Ayade urging the release of the detained journalist.
The group’s president, Chilos Godsent, at a press conference in Owerri, the Imo State capital, warned that INC would storm Calabar, the Cross River capital in protest to demand for the resignation or impeachment of the governor if the detained journalist was not freed within 14 days effective January 1.
The PUNCH widely celebrated Editorial of December 11, 2019 titled, Buhari’s lawlessness: Our stand while criticising the regime of Major General Muhammadu Buhari (retd.) and its penchant for the disrespect of the rule of law had stated that “some governors have borrowed from this nefarious model, deploying security agents and perverting the law to punish critics and journalists.”
INC stated it would mobilise members of Civil Liberty Organizations and Human Rights Activists across the country to shut down the State if Ayade refuses to release Jalingo who had been in detention since August.
Sadly, the Nigeria Union of Journalists (NUJ), Cross River State Council disowned the embattled journalist.
The NUJ chairman in Cross River State, Victor Dan, reportedly said he is not a member of the union, apparently justifying why the union at the state level has been silent over the continuous incarceration of the journalist.
Jalingo’s trial was in November listed among 10 “most urgent” cases of threats to press freedom around the world. Amnesty International and several other organisations have been calling for his release from prison.
The implication of this silence by NUJ Cross River State Council is that the Council speaks only for its members and not the generality of the public even when the need to condemn rights abuses arise.
What then is the role of the press in the society? Who are the watchdogs?
At the court appearance for his bail ruling, Agba Jalingo was brought in and taken away in handcuffs, by the prison officials. Outraged by that spectacle, many in the social and mass media have decried the treatment, denouncing same as immoral, since Agba Jalingo was thereby portrayed as a “common criminal”. They reason that being at worst a political offender or prisoner, he ought not to have been brought to court in such a humiliating circumstance, as if he were a violent criminal defendant, who is undergoing criminal prosecution.
Handcuffs and leg chains (manacles) are used in prison and correctional facilities, to restrain detainees and prisoners when they are held in custody or when they are in transit. Their use, as a form of restraint, must at all times be warranted. If a detainee or prisoner is violent, and his violent behaviour poses a grave danger not only to himself but also to prison officers or other co-prisoners or detainees, he may justifiably, for reason of safety, be restrained by handcuffs or manacles.
If a prisoner or detainee exhibits a jailbreak intent or actually attempts to escape from lawful custody, thus leading to a reasonable apprehension that he is likely to continue to search for opportunities to escape, he may, rightly, be restrained by handcuffs or leg chains.
Handcuffs and leg chains may also be used to restrain a prisoner or detainee who has attempted to commit suicide until such a time he may be cured of his suicide mindset. Fleeing, caught and injured armed robbery suspects may, subject to medical advice, and as may be permitted by their state of health, be chained to their recuperating beds, to prevent their escape, for example.
Handcuffs and leg chains are not meant to be used or misused as a tool of subjecting a detainee, a prisoner or a criminal defendant to inhuman and degrading treatment. It is not in law a means of subjecting a detainee or criminal defendant to humiliation, psychological torture or physical degradation. It is not and should not be used by the State and its law enforcement machinery or criminal justice system to criminalise political opponents, just to give political power wielders sadistic and narcissistic pleasure.
From available facts, the police, prosecution and prison authorities in Calabar have not told Nigerians that Agba Jalingo was violent; that since the day of his arrest and consequent incarceration, he has ever attempted to escape from lawful custody, attempted to commit suicide or endangered the life or safety of other co-detainers, prisoners and prison officers.
In the absence of any such information, the only reasonable conclusion we are compelled to reach is that the handcuffing of Agba Jalingo was calculated to humiliate and denigrate him, injure him psychologically, portray him as a common criminal and persecute him for his journalistic work, human rights campaigns, anti-corruption advocacy and political beliefs and activities. The law does not permit the State and its criminal justice system functionaries to do this to Agba Jalingo or any other Nigerian.
Section 5 of the Administration of Criminal Justice Act (ACJA) , 2015 provides as follows:
“ A suspect or defendant may not be handcuffed, bound or subjected to restraint except:
(a) There is a reasonable apprehension of violence or an attempt to escape;
(b) the restraint is considered necessary for the safety of the suspect or defendant; or
(c) by order of a court”
Section 271(2) (a) of ACJA provides that:
“The defendant to be tried on a charge or an information shall be:
(a) brought before the court unfettered unless the court sees cause otherwise to order; and the charge or information shall be read over and explained to him to the satisfaction of the Court by the registrar or other officer of the court”
For obvious reason and statutory construction logic, we submit that the word “may” in the opening of Section 5 should be interpreted as a “shall”, giving no room for discretion in the observance of the provision.
Section 5 of ACJA 2015 had no precursor in the repealed Criminal Procedure Code and Criminal Procedure Act, the two principal criminal procedure laws hitherto governing criminal prosecution and adjudication in Nigeria, before the advent of ACJA in 2015. Unlike Section 5, Section 271(2) (a) of ACJA had a precursor. It was a regurgitation of Section 215 of the Criminal Procedure Act and Section 161(1) & Section 187(1) of the Criminal Procedure Code, both laws now repealed and replaced by ACJA, 2015.
Section 5 was an innovation deliberately inserted in ACJA, 2015 by the lawgiver (the legislature) to curtail the brutality of the police and other law enforcement and security agencies when taking alleged criminal offenders through the criminal law enforcement and justice administration system.
The police had become very notorious not only in using handcuffs and leg manacles in restraining criminal suspects and detainees but also in misusing these restraints during investigation (or more appropriately torture) sessions to forcefully extract extra-judicial confessional statements from detainees. This use of handcuffs or leg chains as a torture enabler or enhancer was unlawful and obnoxious. Apart from the routine use of handcuffs and leg chains to restrain awaiting trial detainees while they were in transit, and when being taken to courts for their trials and back to prisons after their trial dates, to prevent imagined or anticipated escape, the State had started using it to humiliate certain “elite” or moneyed criminal defendants to send social or political message to the public.
In 2006, the former Inspector General of Police, Tafa Balogun, prosecuted by the FGN (EFCC) for fraud, money laundering and corrupt practices-related offences. He was brought to court in handcuffs, and when it appeared that he resisted being so brought for his image to be captured by the media and in the full glare of the public, he was forced out of the car and dragged on the floor and shoved into the courtroom.
Many Nigerians were outraged by that treatment, condemning the then Nuhu Ribadu-led EFCC for “its vindictive, highhanded and despicable media-craving and publicity-seeking showmanship”.
The very few that justified the handcuffing of IGP Tafa Balogun then did so on the ground that such treatment was standard practice in the criminal justice system of other common law jurisdictions, including those of the western democracies. Besides, they felt that such public disgrace and humiliation could serve as a potent dissuader to discourage public office holders from engaging in graft and corrupt practices.
Section 5 and Section 271(2) (a) of ACJA is the law on the treatment of suspects, criminal defendants and detainees when it comes to the use of handcuffs and leg manacles as a means of restraint. When read together with the provision of Section 34 (1)(a) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, we have no hesitation in stating that the handcuffing of Agba Jalingo on October 4 while being brought to court and while being taken out of court was illegal, unlawful and unconstitutional.
Section 34 (1)(a) of the Constitution provides that “every individual is entitled to respect for the dignity of his person, and accordingly-no person shall be subjected to torture or to inhuman or degrading treatment”.
Undoubtedly, Agba Jalingo was subjected to torture and inhuman and degrading treatment. His handcuffing was unwarranted, in the circumstances, and it was clearly calculated to break his “revolutionary” spirit as a “combatant” in the Revolution Now Movement.
On account of this apparent abuse of the law, a writer, Elias Ozikpu wrote an open letter to the Peoples Democratic Party (PDP) to which Ayade belong, entreating that justice be served.
“Part of the materials in the course administered to the Young African Leaders Initiative (YALI) made available by the US Department of State, titled: “Responsible Leadership on Transparency and Good Governance” had this to say on accountability and good governance:
“Good governance respects the rule of law and recognises that public office is a trust to be exercised in the public interest and not for personal or political gain.
“Trained, professional journalists are necessary to expose corruption and guard against the abuse of power. To do this, it is imperative that the press has access to government officials and the work they do.
“The workings of government must be shared with the public through objective actors who can report the news and provide honest analyses.
“A free and open press also means that journalists should not be censored, persecuted or subjected to unreasonably restrictive libel laws.”
“The arbitrary incarceration of citizens by Governor Ayade for merely expressing divergent opinions is unacceptable. Before the persecution of Agba Jalingo, Ayade had ordered for the arrest of Mr Paul Ifere who was driven by road from Abuja to Calabar where he was slammed with trumped-up charges of terrorism.
“Recently also, a lawyer, Joseph Odok, was arrested in Abuja and driven by road to Calabar for criticising Governor Benedict Ayade. Like Jalingo and Ifere, Odok has been charged with terrorism, all in a bid to strike fear in the hearts of Cross Riverians desirous to demand for accountability from a governor they voted into office.
“This is outright tyranny and a gross abuse of power, unprecedented in Cross River State.
“Whilst it is proper that your party, PDP, consistently calls out Major-General Buhari’s repressive regime for its consistent violation of human rights, you are without the moral competence to maintain sealed lips when a governor in your political party treads on the same path for which you lampoon the Buhari/APC regime.
“Dear PDP, it is an insult on our collective intelligence as Nigerians for your governor, Mr Ayade, to arrest every Cross Riverian, who criticises his anti-free speech regime and then invoke federal charges to create the false impression that his critics are being prosecuted by the Federal Government, when it is common knowledge that the governor is the executive complainant.
“Assuming without conceding that the Federal Government is behind the arrest of every Cross Riverian who criticises Ayade, why is it that they are always driven to Calabar, the Cross River State capital, as though there are no federal high courts in the different states of their arrests?
“For instance, Paul Ifere criticised Ayade, he was arrested in Abuja, chained and dumped in a truck and then moved to Calabar where terrorism charges were preferred against him.
“Agba Jalingo criticised Ayade, he too was arrested and moved from Lagos to Calabar and charged with terrorism.
“Joseph Odok criticised Ayade, he was arrested in Abuja and moved to Calabar and charged with terrorism.
“Are there no federal high court divisions in Lagos and Abuja? Why should Calabar be the ideal place to prosecute Ayade’s critics?
“Consequently, the PDP must prove by way of action that it is not a party to the ongoing fascistic reign in Cross River State by calling Governor Benedict Ayade to order. The Governor must as a result withdraw with immediate effect the trumped-up charges against Agba Jalingo and Joseph Odok who were denied the right to join their families for Christmas.
“Like I have stated on countless occasions, those who abhor scrutiny have no business in public office(s).
“Is it not a common African proverb that a forest that forbids baskets should never grow mushroom?
“Dear PDP, section 39(1) of the 1999 constitution, Article 19 of the Universal Declaration of Human Rights, and Article 9(2) of the African Charter on Human and People’s Rights all guarantee freedom of expression, including the right to hold opinions and to receive and impart ideas and information without interference. Has the PDP suspended these laws in Cross River State?
“Ayade, your governor, rode to power in 2015 on the strength of free speech, but soon afterwards he criminalised it and now jails every Cross Riverian who questions his policies and demands accountability.
“This is totally unacceptable in a 21st century democracy. The PDP cannot be preaching the sermon of freedom of expression and be found practicing the very antithesis of that which they preach about. Ayade’s high-handedness and anti-free speech regime reminds me of the words of Herbert Hoover, first president of the United States of America.
“Hear him: “It is a paradox that every dictator has climbed to power on the ladder of free speech. Immediately on attaining power each dictator has suppressed all free speech except his own.”
“We will not accept this degree of lawlessness and utter repression in PDP’s Cross River where anti-terrorism laws are being used to prosecute dissent. Before criticising General Buhari, the PDP must first purge itself of every trace of tyranny.
“Yours faithfully,
Elias Ozikpu
NB: Jalingo and Odok need to be freed, and they need to be freed now!”
Hopefully, someone is listening.
