Recently, security forces arrested 400 Bureau De Change (BDC) operators alleged to be financial sponsors and facilitators of Boko Haram. This was the time Garba Shehu, Senior Special Assistant, Media and Publicity to President Muhammadu Buhari, told newsmen that “Convictions have been obtained of Nigerians who send money to Boko Haram terrorists, and this occurs both domestically and internationally. I assure you that by the time we finish this investigation, the shocking information would surprise many Nigerians.”
Barely a week following the arrest of the 400 BDC operators, government opted for a secret trial of the suspects, insisting that their case is quite confidential. But the Chairman, Senate Committee on Army, Ndume Ali, expressed great discontent over the move.
Ndume while addressing newsmen in Abuja on 26 April 2021, said “The presidency is already saying their case is confidential. What is confidential about the accusation of changing or giving money to Boko Haram?”
“The presidency should expose the identities of the BDC operators so far arrested, and carry out their trial in public. If any of them is innocent, he should be allowed to go while those found guilty must be made to face the music.
“When I was wrongly accused, I was tried publicly and I was vindicated. The trial lasted six years in an open court. If there is any criminal activity linked to anybody, no matter how highly placed, let the evidence be placed before the public, there should be no secret trial. Nowadays, criminals are arrested and paraded without further action. Nobody knows what happened to the people who killed 11 soldiers in Benue State recently? What happened to those who beheaded policemen in Cross River State?
“If everyone is doing what he is supposed to do as defined by our constitution and laws, we would not have these problems.”
The question of how the trial of terrorist suspects should be handled has always been a teasing subject. The proceedings of transparent trials are critical to maintaining accountability and legitimacy in criminal trials. Both the defendant and the general public have a vital interest in preserving transparency. Ndume’s reservations thus stem from a strong position that justice carried out or shrouded in secrecy is synonymous with no justice at all. If justice cannot be seen to be done, how does one know if it was done? This is because a secret trial is not open to the public, nor generally reported in the news, especially any in-trial proceedings. Generally, no official record of the case or the judge’s verdict is made available. Often there is no indictment.
Besides, every justice system rests on several important principles, including the principle of ‘open justice’. Openness means that the public generally has an interest in knowing the details of the arguments involved and the results of trials. It ensures fairness and confidence in the whole justice system. Justice is not only done but is seen to be done. But when secrecy is introduced, these principles of openness and transparency are jeopardised. It could be susceptible to backhand politics and scuttled away.
But it is important to note that secret trials are usually seen as a viable option when national security is at risk. They are mostly deployed in situations that involve things that can influence further investigations, issues that may compromise national security, or related to the disclosure of information that may cause public disorder or endanger the safety of individuals linked to the case.
Meanwhile, the clamour to protect classified information has raised the need for the establishment of a military commission in the war on terrorism, even though this issue has been highly polarized lately.
Proponents of military commission often portray the federal criminal courts as careless when it comes to protecting classified information. For instance, there are claims that during the prosecution of terrorists in the US federal courts, there were accidental disclosures of classified information that aided Al Qaida in the 9/11 attacks that rocked the United States.
Asides this, the courts have been able to decide on a document-by-document basis whether the public interest is best served by disclosure or concealment. If disclosure would damage national security more than concealment damages justice, the document is withheld. Neither side can use it. This “Public Interest Immunity” test has helped to keep trials fair while safeguarding the most sensitive information.
Many terrorism investigations are international in scope, meaning that much of the evidence may be collected by foreign law enforcement, intelligence, or military officials. Yet foreign countries may be willing to share that evidence only for intelligence-gathering purposes, not for criminal prosecution.
The rights to a public trial may be restricted to accommodate a compelling government, individual or group interest.
For instance, in narcotics and organised crime cases, judges are known to have closed their courtrooms to the public during the testimony of undercover police officers to protect their identities. Some courts have similarly closed the courtroom to protect witnesses from discomfort and humiliation in rape or sexual assault trials.
Secret trials are equally not strange, even in global best practices. In 2014, Britain conducted her first ever secret trial. The two men involved were identified simply as AB and CD. AB was accused of “engaging in conduct in preparation for terrorist acts.” CD is accused of improperly obtaining a British passport. And, the Daily Mail reported at the time, that both were accused of possessing terrorist documents. Prosecutors said that they would have to abandon the trial if it cannot be held in total secrecy.
Following the outcry by civil groups and the media, who challenged the secrecy surrounding the case, Britain’s Court of Appeal made some adjustments that the core of the trial can be heard partly in secret, but parts must be held in public.
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The court also ruled that the defendants can be identified by their names — Erol Incedal and Mounir Rarmoul-Bouhadjar. The part of the trial involving the swearing-in of the jury, the prosecution’s introductory remarks, the verdicts, and the possible sentencing were open to the public. A limited number of journalists were also allowed to attend the trial’s closed portions if they agreed to keep the proceedings confidential until long after the end.
Furthermore, in tackling the war on terror, laws have permitted secret evidence to be used in an increasing number of circumstances.
There is another principle of justice that an accused person has the right to know the case against them so that they can adequately prepare a defence. This is sometimes known as the ‘equality of arms’ principle – meaning that both the person pursuing a claim and the person defending should have equal access to the evidence and arguments in the case.
Although everyone is entitled to a fair and public hearing, this could be limited in the interests of national security. If the Federal Government wants to introduce secrecy in the trial of the accused Bureau De Change owners, a middle ground agreement is vital for equity and fairness. The courts must decide what is possible or acceptable without breaching the right to a fair trial. The fact remains that every accused person must be presumed innocent until they are proven guilty by the court of law. They equally reserve the right to a fair hearing.