Tuesday, 10 November 2020

On the Criminal Complaint by a Private Citizen against the #EndSARS Protesters and "Sponsors".


By Misbau Alamu LATEEF, Ph.D.


I have seen (as attached) a certain document on social media concerning a criminal complaint before a Chief Magistrate’s Court in Abuja against certain 50 persons for their alleged roles in the #EndSARS protests. The document shows that the criminal complaint was filed by a certain Mr. Kenechukwu Okeke against Pastor Sam Adeyemi, Aisha Yesufu, Davido, Tuface, Kanu, and 45 others, for their alleged roles on and outside social media over the #EndSARS protests that took place in October 2020.

I have also read claims in some quarters that the criminal complaint was filed by the Federal Government or by Mr. Kenechukwu Okeke as a proxy of the government. Some have also asked the question regarding the legal proprietary or otherwise of a private citizen like Mr. Kenechukwu Okeke filling a criminal complaint before a court against other private citizens. I wish to respond as a private citizen to both the claims and the question. 

I think the claim that the criminal complaint was filed by the government against the 50 persons is FALSE, If not deliberately mischievous by its purveyors. It is very clear on the face of the document that it was filed by a private citizen named Kenechukwu Okeke. Could he be a proxy of the government? I strongly doubt that. Indeed, as I shall show in my answer to the next question, It is absolutely within the right of Mr. Kenechukwu Okeke to file such complaint as a private person. However, the issue of moral proprietary or otherwise of such an act is another thing entirely. But is such a criminal complaint an attack on the Constitutional right to protest or demonstrate as the #EndSARS Protesters have done? Well, criminal conducts could very well proceed or flow from a civil act and it is the duty of the Complainant to prove his criminal complaints beyond reasonable doubts. 

Now to the question of whether a private citizen has the legal right to file a criminal complaint before the court. There is no doubt that the typical legal process of filling or initiating a criminal complaint before the court against any person is for the police or the office of the Attorneys-General of a State or Federation to bring such a complaint to the court, in the name of the Police or State as the Complainant, after due investigation by the Police or other agency of government. In that case, a report is usually made to the police by any person who feels that an offence has been, is being, or will be committed. The police will then investigate and decide whether or not to charge the person to court or seek further legal advise from the office of the Director of Public Prosecution in the office of the Attorneys-General. Why didn't Mr. Kenechukwu Okeke follow this typical legal procedure?

One of the beautiful reforms introduced by the Administration of Criminal Justice Act 2015 (ACJA 2015) is the power of a private citizen to directly bring a criminal complaint before the court without the initial involvement of the Police or the office of the Attorneys-General of the State or Federation. This power or right is particularly contained in sections 88(1) & 89(5) and then by extension in sections 109(a) & 110(1)(c) of the ACJA 2015. So what happens once such a private citizen's complaint has been filled before the Court? Does it mean that the persons against whom the complaint was filed would then be arrested and invited for arraignment before the court? 

First, section 88(1) of ACJA 2015 clearly provides that: "A person may make a complaint against any other person alleged to have committed or to be committing an offence." A person here simply means just any private citizen including you and I. But that is where it all ends for a private citizen Complainant as what follows in section 89(5) makes it clear that the investigative roles of the Police under section 4 of the Police Act 2020 cannot be bypassed or circumvented. That is, the power of detection and investigation of crimes for short. Thus, section 89(5) of ACJA 2015 restricts the provision of the earlier section 88(1) as follows: "All complaints made to the court directly under this section shall first be referred to the Police for investigation before any action is taken by the court." The courts in Nigeria have repeatedly affirmed the exclusive powers of the police to carry out criminal investigations that could lead to criminal charges in the courts against persons. See Ajayi v. The State (2013) 9 NWLR (Pt 1360) 589. (Meanwhile section 4(i) of the Police Act 2020 now permits private detectives and Private Investigative Outfits in Nigeria, subject to some restrictions and registration with the Police).

The simple implication of section 89(5) above is that, the present criminal complaint of Mr. Kenechukwu Okeke is no more than a mere complaint before the police for criminal investigation of the alleged crimes of those 50 #EndSARS Protesters or "Sponsors". The Chief Magistrate  Court in Abuja is now obliged by law to forward the criminal complaint of Mr. Kenechukwu Okeke to the appropriate police divisional office for proper investigation. In other words, it is still open to the police to advice the court on whether or not criminal charges will be desirable against those 50 persons.

Finally, I think the criminal complaint of Mr. Kenechukwu Okeke, an act clearly within his legal right as a private citizen, is a ridiculous attempt to do the impossible. Perhaps an act meant only for media frenzy and mischievous sensationalism. How does he really hope to establish or prove criminal guilt against those persons? What exact criminal outcomes can he or the police or the state DIRECTLY attribute to the legitimate exercise of civil rights by those citizens? This is even beside the point that there is nothing as vicarious liability in criminal responsibility. Sadly, however, all the criminal acts (murder, arson, looting, and etc) that subsequently resulted from the escalation of the very legitimate ORIGINAL #ENDSARS protests cannot be put on the shoulders of those legitimate Protesters. The best the state can do in the circumstances, therefore, is to focus on the individual criminal elements (whether hoodlums or protesters) who can be DIRECTLY linked to outright criminal conducts.

I hope Mr. Kenechukwu Okeke will enjoy his media buzz while it lasts.

Misbau Alamu LATEEF, Ph.D.


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