By Daniel Akinwale

No one I repeat no one let alone a child deserves the unbearable trauma of sexual abuse. Baba Ijesha, a popular Yoruba movie comedian cum actor whose birth name is James Olayinka was recently alleged to have defiled a 7 year old child and reportedly caught on camera sexually assaulting the child- now 14 years of age. These allegations against the popular movie comedian are grave, weighty, despicable, reprehensible, indefensible, and should be condemned by all and sundry.

However, these allegations remain in the realm of allegations until the Court determines the guilt of the Yoruba actor hence Baba Ijesha is a suspect and not a criminal until the Court says so.  The purport of this discourse is to discuss the legal issues present in the Baba Ijesha’s Saga.

The first is the privacy of a Child. Data not oil has been said to be the world most valuable asset.   There are laws that protect the privacy of a child, and prohibit the disclosure of a child’s data. Section 39 of the 1999 constitution provides for the fundamental right of privacy of citizens. Invariably, a Nigerian Child enjoys similar protection as a Nigerian citizen. Section 8 of the Child Right Act – the applicable child right law protects the privacy of a child. Reg. 2.4 (a) of the NITDA Regulation – a specific body of rules protecting Data Privacy in Nigeria – prohibits consenting to the use of data that engenders child rights violation. Some Social Media users have opined that the video evidencing the alleged assault be publicly released. The public release of the said video will be a breach of the Child’s constitutional and statutory right to privacy.  Furthermore, anyone who releases such video will be culpable of child pornography under S. 23 of the Cybercrime Act.

Secondly, the issue of the fundamental right of fair hearing. What is fundamental right? Fundamental right of fair hearing simply means a person is given an opportunity to be heard before any decision is made against him or her.  This right is protected and guaranteed in the 1999 constitution; it is a constitutional right. See S.36(1) of the 1999 Constitution(CFRN), AG Rivers State v. UDE (2006) LPELR-626 (SC).  This right is not peculiar to Nigeria, it is protected in the constitutions of several countries and different International conventions.

Many social media users have taken Baba Ijesha to the guillotine without hearing his side of the story, in fact they believe he should not be heard. The flip side of social media. This position is antithetical and incongruous with the fundamental right of fair hearing. It is possible to condemn the act without condemning the accused unheard. In the Court of public opinion especially on Twitter, this innate and intrinsic right that predates our constitution has been relegated to the background. Even God is a respecter of this innate and constitutional right.  In the 18th Century English case of R v. Chancellor, Masters and Scholars of the University of Cambridge (1723) 93 ER 698 @704, Fortescue J. held  thus:

“ The laws of God and man both gave the man  the opportunity to make his defence, if he  has any… even God himself did not pass sentence upon Adam, before he was called upon to make his defence .’Adam says God, where art thou? Hast thou eaten of the tree, whereof I commanded thee that thou shouldest not eat? … God did not also condemn Eve unheard:- ‘ The Lord said to the woman what is this that you have done ?”

In a sum, Baba Ijesha and every other accused has and enjoys this constitutionally and internationally recognised – guaranteed right. He should not be convicted unheard.

Third , the  principle of presumption of innocence. Our constitution provides for the presumption of innocence. See S. 36(5) of the CFRN. Ogu v COP (2017) LPELR- 43832 (SC). This is a universally accepted legal principle. It means that any accused is innocent until  his guilt is proven by the prosecution in the Court – not in the media – mainstream or social or any other forum other than the Court of law.  This portends that Baba Ijesha is presumed innocent until the prosecution proves his guilt on the charges filed beyond reasonable doubt in the Court, and the Court convicts him of the charges filed against and proven by the prosecution. This is due process, my friends. I am not oblivious to the viral video on the internet showing Baba Ijesha admitting to the sexual molestation of  the child or the Police statement confirming that the accused’s confession to  sexually assaulting the child. This is one of the beauties of technology but it does not change the presumption of innocence, it is a constitutional principle. However, it makes the job of the prosecution easier in proving Baba Ijesha’s guilt beyond reasonable doubt. 

The fourth legal issue is the issue of an action or offence being statute barred. An action or offence is statute barred when a law provides for time limit for the institution of the action or the prosecution of the offence and the offence or action was not instituted in the Court within that time limit, such action or offence is statute barred as the Court will lack jurisdiction to entertain same.  The Police came under fire when it said in a statement that Baba Ijesha cannot be prosecuted for defilement not rape under the criminal law of Lagos because it was statute barred. Lawyers on social media have taken the pain to distinguish the offences of defilement and rape. The Criminal Law of Lagos provides that anyone who defiles a girl under 13 years is guilty of the offence of defilement while the criminal code Law provides that the offence of defilement must be brought within two months of the commission of the offence. This means that Baba Ijesha cannot be charged for the offence of defilement after two months of the alleged commission of the offence consequently it is statute barred. However, Baba Ijesha will be charged for other sexual offences to wit: sexual assault by penetration, attempted sexual assault by penetration, sexual Assault and indecent treatment of a child under the Criminal Law of Lagos. These offences are not statute barred.

The umbrage concerning the allegation is understandable as many alleged sexual predators have slipped through judicial net and are walking as free men today due to their social status but this umbrage should not encourage the disrespect of constitutionally provided rights. There was a campaign by prominent celebrities to prevent the release of Baba Ijesha’s on bail. This is wrong. We should not legitimise the police’s abuse of Nigerians’ constitutional rights. The constitution is clear on this. No one shall be unlawfully detained beyond 48 hours for any offence without been charged to Court. See 35 (5).

Many have argued that the Police have on umpteenth times detained people beyond 48 hours and thus it will be double standard to respect this constitutional right of personal liberty for Baba Ijesha. Two wrongs do not make a right. We cannot egg on the Police to detain Baba Ijesha beyond the constitutional period and turn around tomorrow to decry the detention of Nigerians particularly protesters. We can leverage our umbrage and peeve to ensure and demand that this case is not swept under the carpet but justice is achieved because as appositely espoused by one of Nigeria’s finest and revered Jurist, Oputa JSC,  Justice is a three way traffic-Justice for the victim, accused and the society. I pray Justice prevails.

Daniel Akinwale is a Legal Practitioner. His areas of expertise are Commercial Dispute Resolution, Real Estate and Intellectual Property. He is an Associate of the Chartered Institute of Arbitrators (UK) and currently an Associate with City Law Firm, Abuja.

By Abimbola Adelakun

After Nigerians criticised the National Broadcasting Commission for trying to strong-arm the television station, Channels TV, over their interview with the spokesperson for the Independent People of Biafra, Emma Powerful, a more contrite version of them addressed the public to clarify that they merely warned Channels TV to “check their excesses.” They said since the IPOB organisation had been proscribed, the television station should not have given “credence” to Emma Powerful, their spokesperson.

Interestingly, they also noted that “the (IPOB) spokesman made lots of allusion that were not true, that are inciting and inimical to the peace of the society that could cause unrest.” Since they did not precisely substantiate what Powerful said that was “not true,” we are merely left to wonder who gave NBC the job of determining the “truth” and whose version of “truth” is deemed acceptable for public broadcast. I do not think they weighed the implications of refuting an interview based on its truth value carefully enough before justifying themselves to the public.
They also claimed that Powerful made certain comments about the Nigerian Army that were “derogatory, false and misleading statements.” Again, why should they be contesting the details of the interview on behalf of the Nigerian Army? At what point did anyone appoint the NBC as the Army’s mouthpiece? Where were they when the same news anchor interviewed the self-appointed bandit negotiator, Sheikh Ahmad Gumi? He claimed he had the “evidence” (and which included names of serving officers) that the army was “killing communities of Fulanis,” and that “more than 300 women and children” have been killed already. Why did they not complain then? What did Powerful say that was any more egregious than what Gumi said some months ago? Why did they let that slide and pick on this one?
Besides, when will organisations like the NBC learn to recalibrate their tactics? In the age of modern technology, when such interviews can be easily circulated on multiple devices, what is the point of asking the TV station to suspend its further broadcast? The interview is not only archived on YouTube already, but it has also made rounds on multiple personal devices and social media Apps. People who would have ignored its contents have now paid attention to it in detail. What has the NBC achieved now other than give themselves away as a partisan wing of the government that is looking for relevance in a world leaving them behind?
That said, it is almost amusing watching them claim the motive of their action as public peace. Well, what presently plagues Nigeria is far more complicated than what a television host failed to do. Blaming the TV anchor for not checking an interviewee is a cowardly deflection from the many problems actually causing insecurity. This same attitude of reaching for low-hanging fruits by the NBC played out in the wake of the October #EndSARS protest. A coterie of politicians and religious leaders gathered in Kaduna to moan about social media and how the phenomenon of fake news would combust the country. They pointedly ignored all the rationale behind the restiveness and agitation in the country, only to hold on to social media as their whipping boy.
Each time reality overwhelms the lies of this regime, they typically deflect either by running in an opposite direction or heaping the blame of their perennial leadership failures on matters that are more of symptoms than actual causes. Just lately, when Garba Shehu had to comment on the scandal dogging the Minister of Communications and Digital Economy, Sheikh Isa Ali Pantami, he screeched both “cancel culture” and “McCarthyism.” Shehu likely knows that those terms are a gross misapplication in Pantami’s case. He had to have chosen them to not have to confront the legitimacy of the calls for the minister’s resignation.

To link the criticism of Pantami’s refusal to leave the government even after it had become overly obvious that he had a moral baggage that will affect citizens’ relations and trust in their government to “McCarthyism” is sheer dishonesty. But who exactly is surprised about such moral blindness? If you scratch Shehu’s past enough, you may find that he too has believed and said the same thing as Pantami. That is why his fly has no other choice than to take sides with the man with putrid sores.
That cowardly deflection from the truth of what is truly wrong is the same way they used to blame corruption in Nigeria on indiscipline until their anti-corruption charade collapsed. There was a time too when they also blamed the instability of the Nigerian economy on our inordinate consumption of foreign goods. They ignored the whole architecture of problems that made local production impossible and focused on policies that have left us no better than where we started. After all those years, what has Nigeria gained? They still persist in the same manner.

A while ago, they said they had discerned that the whole problem of Nigeria was its open borders. Once shut, things would magically straighten themselves because hungry people would be driven to innovate. They shut down borders but eventually allowed their privileged friends some access. By the time they reopened them, the problems they claimed they wanted to solve had not changed in any meaningful way. Even worse, Nigerians’ lives had been severely diminished in the process.
The rate at which violence is happening in Nigeria is intolerable, and pursuing a TV anchor for platforming those who harbour secessionist sentiments is another one of the simplistic games this regime plays. If anyone needs warning about attitudes that can incite public unrest, it is the lethargic regime of Major General Muhammadu Buhari (retd.). It needs to be aroused to urgently outline concrete security plans that will cease the country’s gradual slide into anarchy.
This week alone, we have had the news of the deaths of five of the students of Greenfield University in Kaduna who have been brutally killed by their abductors. That is a horrid development, and I cannot even begin to wrap my head around the kind of anguish their families -and those of the rest of the abducted students- must be feeling at the moment. Merely thinking about that unfortunate case fills one with rage and frustration. When you read another set of reports of the deaths of Nigerian troops in Borno State, the circumstances in which it happened further enrage your rage. This regime needs to come up with measures that address the insecurity problem.
There is virtually no corner of Nigeria spared from the attacks and restlessness in the polity. None! From abductions of virtually anyone to mowing down of innocent villagers and security personnel to violent attacks for all kinds of unstated reasons, Nigeria is presently a chamber of horrors. Add to all of these the rising cost of consumer goods and the aggravated decline of Nigeria’s quality of life, and the preposterousness of administrators living behind glass bubbles in the FCT from where they bark at the media gets clearer. We are presently at a sad juncture where people could be incited to violence because our leaders are a massive failure, not because an anchor did not “check the excesses” of an agitator.
Our leaders have frightened us enough with what would befall Nigeria if the country should break up. By now, given the nightmare we live through, it should be clear that the dystopia they say will become of us if the country fractures is already happening. We are now witnessing pockets of civil wars in different parts of the country. Nigeria’s perennial security issues require a firm resolve from its leaders, not nit-picking. Nobody needs an IPOB member to make incendiary comments to ignite a war. We are at war already. Nigeria itself has always been at war with its own citizens. Our daily life has always been a war zone. To be a Nigerian itself is war! Our social conditions are asphyxiating us, and we need to look at the problem right in the face. Looking for sources of unrest anywhere outside leadership failure and the rapid disintegration of quality of life is a mere cowardly deflection from the issues that need addressing.

Credit:Punchng

 First of all, is there anarchy in Nigeria? 

My definition is not concerned with the anarchy decried in International Relations, as “the absence of any authority superior to nation-states and capable of arbitrating their disputes and enforcing international law”. We should jettison that, not because some aspects of that problem is not present in the general insecurity bedevilling Nigeria, but simply because Nigerians have not seen that as a problem. 

This is what I mean; Nigeria’s general insecurity is daily worsened by the influx of foreigners, especially Fulani Cattle herders, who drift or pour in (take your pick) from the country’s Northern borders. But no effort has been made to seek out such undocumented herders, try them in our courts for illegal entry into Nigeria and jail or deport them, as international law allows. Instead, foreign Fulani herders were mentioned as a way to prove the non-involvement of Nigerian Fulani herders in the rampant terrorism, banditry, kidnapping and savagery against farmers that have made Nigeria a vast killing field. 

In fact, these non-Nigerian Fulani herders have been paid by a few state governors to stop their unbridled bloodletting. Such non-Nigerians have also been fingered as forming the bulk of the bandits and Boko Haramists. They are lawless all right, but Nigeria has not seen the activities of such foreigners as an affront, otherwise there should have been an effort to root out such undocumented but murderous Fulani herders from Nigeria. But nothing of such is on. Being an undocumented non-Nigerian Fulani herder may actually not be an offence because the Federal Government has not taken a stand against it. I just wonder what would happen if the Yoruba people in the Republic of Benin would begin to claim the same privilege, simply because Yoruba people are also found in Nigeria. 

It just appears that where a Fulani is involved, whether one is a Nigerian or not is not an issue at all. This brings up the other matter; when the RUGA (Rural Grazing Areas) programme takes off, how do we know if the benefiting herders are foreigners or Nigerians? Well, this should be looked into or we could be making ourselves the world’s laughing stock; a dirt-poor country, the poverty capital of the world, one of the countries with the most debilitating debt burdens, which is extending its poor and terribly inadequate resources to foreign Fulani herders in their private businesses (yes private business) and for no gain whatsoever. And we are talking about foreign Fulani herders who have proved to be long time murders of their Nigerian hosts. Well, in such a situation, we have to ask ourselves whether we are encouraging or discouraging the blatant anarchy that has blanketed Nigeria for years now. Anarchy? What really is anarchy? 

The word ANARCHY was coined in 1539 to denote “an absence of government”. This refers to the “curtailment or abolition of traditional forms of government and institutions. It can also designate a nation or any inhabited place that has no system of government or central rule”, according to Wikipedia. I know that some anarchists only advocate for a society without hierarchies, of equals, and not chaos or disorder reign, but I have not come today for such hair-splitting. 

This is because anarchy comes from the Medieval Latin anarchia and from the Greek anarchos (“having no ruler”), or literally meaning “without ruler”. In fact, even as a political philosophy, anarchism advocates self-governed societies based on voluntary institutions. These are often described as stateless societies. Anarchism holds the state to be undesirable, unnecessary, or even harmful. Opposition to the state is central to anarchism and when such opposition is acted out or even advocated, the state of Nigeria is under attack. Right? 

Well, we are just learning that opposing Nigeria or its constitutional provisions may not be evil deserving of punishment, after all. If not, the Minister of Communications, Isa Pantami, should have resigned, or he should have been sacked and turned over to the law enforcement agencies. Even after he has freely accepted that he may have espoused some doctrines that may have been in conflict with the dictates of the constitution of the Federal Republic of Nigeria, he has not been made to face the music. Gosh! Satan would be squirming now; why should God not open the gates of heaven to him, after all, that he may have sinned is not the point; Nigeria has just proved that past sins should not be taken into account in any way. Just see the way, the President’s own spokesman, has defended Minister Isa Pantami.

It is not enough to explain, on his behalf, as the State House Spokesman did recently, that anybody who mouthed some incongruities yesterday could have changed his mind today. No, the security agencies need to establish what sort of absurdities that the man spewed out into the public space. I say this with conviction because our Minister of Information, Alhaji Lai Mohammed, has raved and raved and raved against hate speech. Now, why has Minister Pantami been applauded for his own hate speech? If he was not applauded for the hate speeches that have been popping up on the social media recently, a prodigious output that only a man fully on a mission could have achieved – as voluminously as the River Niger flows. 

Reading or listening to what has been attributed to Pantami, the real question that should crop up is actually why he would be retained as a minister of the Federal Republic but why he was appointed in the first place. Why should a man who did not believe in the constitutionally guaranteed rights of all Nigerians have been appointed an officer of state? And how could he have been confirmed by the Senate, if he had publicly advocated for the nasty things he and the Presidency are now papering over? 

And there is this question: What if a Christian had mouthed such type of things – but against Moslems? 

That brings us to the image of the President of the Federal Republic of Nigeria. What message would President Muhammadu Buhari be sending to Nigerians, if he keeps indulging Pantami by not sacking him? What pantomime is Buhari performing in this Pantemi disaster? Why should a nation be drowned in illogical reasoning as advocated by Pantami himself, that he held some views, religious views, and he has now changed or modified those views? 

Has the government actually analysed those views of his? Were they really religious views? Or were they against the dictates of the Constitution of the Federal Republic of Nigeria, and so anarchic. I have always been told that Islam stands for peace. So, he must have expressed something other than religious views. 

And what should those views have been, if they were against the dictates of peace and against the constitution? What answer would have resulted from Pantami’s exertions if not ANARCHY? Could, say Malam Garba Shehu please correct me on this sour point if I am wrong. And if I am right, then why did he see the need to use his time, which is paid for by the Federal Government of Nigeria, and so is paid for by all Nigerians, to defend Pantami’s anarchic views? And he should know better than to tell me that the man has changed his views; did any psychologist evaluate the man and certified his metamorphosis? If Pantami rages against some people, why should those same people continue to pay his salary? Dear Garba Shehu, how do you answer that? 

The trouble with anarchy in the state system is that it requires individual ethnic groups, states, cities, towns and villages or even individuals to be ruthlessly self-seeking, once a country has proved incapable of protecting the citizens. That Nigerians have turned to self-help defence systems proves this theory right. This is true because the Fulani has taught other Nigerians one salient lesson: the best way to achieve security under anarchy is to be powerful. Fulani apologists have argued that Fulani herders fought back to avenge the killings of herders and their livestock. Even such self-help mechanisms spell anarchy. 

The murderous combination of anarchy, ruthless self-help, and power-maximizing behaviour in Nigeria now is worrisome. The American political scientist Kenneth Waltz stated that “in such an environment “war is normal” and the British Encyclopaedia states while looking at countries under no control of international bodies: “In other words, war, or the threat of war, is the primary means by which states under anarchy resolve conflicts of interest. The readiness of every state in an anarchic system to defend its interests through organized violence is the primary factor responsible for the development of internal cultures of militarism and bellicosity (and an emphasis on maintaining honour—i.e., international status). Unfortunately, this is true of Nigeria today, where the government has lost the ability to defend the citizenry. 

We must take this warning seriously: The Encyclopaedia Britannica states that “Political scientists also suggest that under anarchic conditions, there is a moment when the danger of large-scale war is most acute: when a sudden large shift in the distribution of power among states occurs. Political scientists refer to such a shift as a power-transition crisis. The shift can be either a dramatic increase in the capabilities of one of the main actors or a dramatic decrease in the capabilities of another main unit. But when the existing distribution of privilege, influence, and goods in a system becomes mismatched to the changing realities of power, the result tends to be large-scale war”. No wonder Nigerians decry the saturation and marginalisation of some ethnic groups in government. 

Does President Buhari know exactly what he has done, by refusing to sack Pantami? Does he know the pantomime he is orchestrating? Does he actually know the message he is sending to Nigerians? Will the Minister of Information, Lai Mohammed be able to raise his voice again to rant against hate speech? 

I will leave President Buhari with one question as he continues this Pantami’s pantomime; what kind of government is Nigeria, under his administration, practicing, especially as the insecurity blankets the nation? For the German Philosopher, Immanuel Kant, a nation under anarchy is not really a state because the law is only an “empty recommendation” if force is not included to make this law efficacious (“legitimation”, etymologically fancifully from legem timere, i.e. “fearing the law”). For there to be such a state, force must be included while law and freedom are maintained, for a state to be a republic. 

Kant identified four kinds of government: One, “Law and freedom without force (anarchy)”, two, “Law and force without freedom (despotism),” three, “Force without freedom and law (barbarism)” and lastly, “Force with freedom and law (republic)”. Nigeria cannot be a Republic if a Pantami can spew out murderous hate and strife, own up to them, and yet continues to be a minister.