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The illegality of media publication of mug shot and public parading of suspects under Nigerian law

The illegality of media publication of mug shot and public parading of suspects under Nigerian law

Author: ABASS MOHAMMED OLUWATOSIN Esq.

Justice is a three-way traffic which seeks to protect the state, the victim, and the suspect. In Nigeria, the presumption of innocence is a pivotal principle of the administration of criminal justice based on the accusatorial system. The position of the law under this system is that no matter the seriousness or gravity of the offence allegedly committed by the defendant, the charge or information against him before a competent court remains a mere allegation until the contrary is proven.

The effect of the presumption of innocence is that until a defendant is found guilty by the court, such person is to be treated the same as an ordinary person without regard to the degree of the suspicion against him. The rationale behind this is captured by the jurist, William Blackstone, that it is better that ten guilty persons escape than to convict one innocent person.

It can seem counter-intuitive, but this ultimately has to do with safer administration of justice as well as living in a safe society. It essentially seeks to protect the fundamental human right of every individual even in the pursuit against crime.

As the modern trend reveals, releasing and ‘advertising’ the mug shot of suspects on media and social media platforms as well as parading of suspect on camera is now a norm by the Nigerian Police Force (NPF), Economic and Financial Crimes Commission (EFCC) and other law enforcement agencies as way of flexing their efficiency to their appointers and the public. Parading of suspects is done by law enforcement agencies in respect of several forms of offences, from serious offences of felony to misdemeanor, and simple offences. As recent as April 2024, several individuals were prejudicially paraded as criminals for the offence of failing to use the pedestrian bridge with media coverage.

It could be inferred that the constant act of the law enforcement agencies is out of sheer ignorance or outright desire to show that they are indeed working by adversely flaunting the rule of law. Whichever it is, the law enforcement agencies must be reoriented on the provision of law, the extent and limit of their powers, as well as the constitutional safeguards afforded to accused persons.

The Constitution of the Federal Republic of Nigeria 1999 (as amended) created the Nigerian Police Force, vide the provision of s.214(1). Additionally, Section 18 of the Administration of Criminal Justice Act 2015, and Section 24 of the Nigerian Police Act 2020 gives the Nigerian police the power of arrest. Section 18(1) of the Administration of the Criminal Justice Act 2015 provides; ‘A police officer may, without an order of a court and without warrant, arrest a suspect:

whom he suspects on reasonable grounds of having committed an offence a law in Nigeria or against the law of any other country, unless the law creating the offence provides that the suspect cannot be arrested without a warrant;’

Similarly, Section 41 of the Economic and Financial Crimes Commission (EFCC) Act empowers the EFCC a similitude of the power of the Nigerian Police Force as it states that.
‘Subject to the provisions of this act, an officer of the commission when investigating or prosecuting a case under this Act shall have all the powers and immunities of a Police officer under the police Act and any other law conferring power on the police or empowering and protecting law enforcement agencies.’

In addition to the above provision, the Administration of Criminal Justice Act, 2015 further contain detailed provisions on the application and purpose of this power. In specific terms, the provision of Sections 6, 7, 8, and 14 (2) & (3) states the appropriate order of event to be taken upon the arrest of a suspect. The provisions mandate that an arrested person must immediately be taken to the police station or other place for the reception of the suspect, the right of the suspect to be promptly informed of the allegation(s) against him in the language he understands, right against public parading or torture, access to legal services, as well as access to communication to furnish bail, and otherwise arrange for his defence or release.

Section 15 (1) of Administration of Criminal Justice Act, 2015 states;

“Where a suspect is arrested, whether with or without a warrant, and taken to a police station or any other agency effecting the arrest, the police officer making the arrest or the officer in charge shall cause to be taken immediately, in the prescribed form, the following record of the suspect arrested:

(a) The alleged offence;

(b) The date and circumstances of his arrest;

(c) His full name, occupation and residential address; and (d) For the purpose of identification:

(i) His height,

(ii) His photograph,

(iii) His full fingerprint impressions, or

(iv) Such other means of his identification.

In coherence with the foregoing, it is noteworthy to state that the purpose and contemplation of the ACJA 2015 in the above prescribed form and procedure is exclusively for identification and record.

IDENTIFICATION

An identification in a criminal trial means a whole series of facts and circumstances by which a witness or witnesses associate a person with the commission of the offence charged. It is primarily a process of confirming the identity of the person suspected to have committed the crime being investigated. Identification of a witness may be done through different means; face identification, voice identification and fingerprint identification are essentially more potent in law than identification parade.

At this point, it is also noteworthy that most law enforcement agencies in Nigeria adversely use identification parades. Rather, they often confuse identification parade with public parading of suspects.

IDENTIFICATION PARADE AND PUBLIC/MEDIA PARADE:

Identification parade was defined in Alabi v. The State (1993) LPELR-397(SC) as ‘a group of persons of identical size and common physical features assembled by the police from whom a witness identifies a suspect or suspects unaided and untutored’. It is imperative to note that identification parade is carried out where the identity of the offender is in issue, for example, where there is a mass arrest of suspects by police. Identification parade is not always necessary particularly where the question of identity is not in issue, where the suspect has confessed to the commission of the offence, where the suspect was caught at the scene of crime or connected with the scene of crime, and/or where there is recognition by the witness.

PRE-TRIAL MEDIA PARADING OF SUSPECT

Media/public parading of suspect is the open display of arrested persons or suspects in demeaning and inhume form usually before the camera and media houses, with aside commentaries from a law enforcement officer on the arrest.

The law enforcement agency essentially needs to note that identification evidence or identification parade is needless where there is recognition and has no business nor relation with public parading of suspect or online publication of mug shot on website or social media platforms (Instagram page). The identities of suspects are not to be published, displayed on media, social media (e.g., Instagram page) or the internet.

MUG SHOT

This is a photograph of a suspect especially the face or profile usually taken upon arrest. Mug shot for the purpose of identity record and profiling is known to Nigerian law as captured in section 15 of the Administration of Criminal Justice Act 2015 above. However, mug shot publication on news media, internet and social media page pre-empt the fundamental right of the suspect, it is prejudicial and amounts to pre-trial media publication which is illegal. Although practised in some other jurisdictions, it is unknown to the Nigerian law.

The combined provisions of section 8 of the Administration of Criminal Justice Act and Section 3 of the Administration of Criminal Justice Law (Lagos), 2021 specifically prohibits media parading of suspects, as well as Section 2(xi) of the Anti-Torture Act 2017 and Section 5 of the Constitution of the Federal Republic of Nigeria. Section 8(1) ACJA 2015 states; A suspect shall-

be accorded humane treatment, having regard to his right to dignity of his person; and

not be subjected to any form of torture, cruel, inhuman or degrading treatment.

Section 5 CFRN 1999 (amended) states:

‘Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.’

Pre-trial media parading of suspect is a well celebrated anomaly, amongst the law enforcement agencies, in that it glorifies them of their prejudicial achievement and publicise same. The Attorney General of the Federation and Minister of Justice should, as matter of right, must call the law enforcement agencies to order. This desultory, day light illegality and prejudicial conviction of suspects must stop.

It is pre-emptive, prejudicial, and unknown to the Nigerian law to engage in pre-trial media parading and mug shot publication. It defeats the hallmark of the presumption of innocence as guaranteed by the Constitution and the totality of Chapter IV of the Constitution of the Federal Republic of Nigeria, as well as Article 4, 5, 6 and 7 of the African Charter on Human and People’s Rights. In most cases, law enforcement agencies are always eager to parade suspects even before the commencement of investigations, thus outrightly flaunting the laid down procedures in the Administration of Criminal Justice Act.

THE NIGERIAN COURT ON PRE-TRIAL MEDIA PARADING OF SUSPECT

Only a Court of record rightly constituted can competently and legally try a suspect in Nigeria. The judiciary has serially and consistently condemned the illegal practise of pre-trial media parading of suspects before the media. It should be noted that the mere fact that it is done by law enforcement agencies does not make the practice any different or lesser than ‘Jungle Justice’ perpetrated by mobs in the public.

The ‘Jungle Justice’ inherent in it, is that it adjudges the suspect already as guilty even without any trial. The inhumane condition they are subjected to is nothing but a regulated lynching. In Ndukwem Chiziri Nice v. AGF & Anor (2007) CHR218 at 232; the Court condemned media parade of suspects and held that it is a fundamental breach of the constitutional rights of suspects.

Recently, Justice Zainab Abubakar of the Federal High Court, Abuja also gave the ruling in suit marked FHC/ABJ/CS/01/2020, against the Inspector-General of Police over unlawful pre-trial parading and detention as a violation of fundamental human rights. The law enforcement agencies should know as a matter of law that; He who comes to equity must come with clean hands.

THE EFFECT OF THE PREJUDICIAL PARADING OF SUSPECTS AND MUG SHOT PUBLICATION ON SUSPECTS:

The effect of the prejudicial parading of suspects and mug shot publication is mentally distorting and occasions a far-reaching psychological distress on suspects, particularly the various innocent suspects who are eventually discharged and declared not guilty. For the law enforcement agencies, it is just a means of preying on the suspects to score political goals that indeed the government is succeeding in crime fighting and other related offences.

The primitive practice undermines the investigation process and defames the suspect’s reputation in an irreparable and irreversible manner. No apology, removal, disclaimer, or renunciation of the earlier publication can repair the damage done to the reputation and person of the victims of these unlawful parades. Many have to deal with life-long stigmatisation occasioned by this menace.

In all, the focus herein is not to discredit the assiduousness of law enforcement agencies, particularly the Economic and Financial Crimes Commission (EFCC) against the fight against financial corruption and related offences. This is a patriotic call for law enforcement agencies to uphold upmost professionalism in adherence to the rule of law, by protecting and safeguarding the inalienable fundamental human rights of every individual in the course of their duties in line with constitutional provisions.

ABASS MOHAMMED OLUWATOSIN Esq.

[email protected]

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