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‘Fisayo Soyombo and the legal propriety of prosecuting an undercover journalist: A dialogue
By Timothy Ola Bamgboye
‘FISAYO Soyombo, a multiple award-winning journalist, in a three-part article, chronicles with the aid of pictorial and filmic pieces of evidence, how he got himself arrested, detained in police cell, and remanded in prison (now known as correctional facility) in a daring bid to expose the depth of systemic corruption in Nigeria’s judicial system. In the wake of the stunning expose, rumours were rife of the plot of the Correctional Service authorities to get the journalist arrested and charged under Section 29 of the Nigeria Correctional Service Act.
Subsection 1 (c) reads: “A person is deemed to have committed an offence if he procures or facilitates the procurement of communication devices for an inmate or makes conversation or aids the making of conversation through a mobile phone or other devices to an inmate other than as provided in the Correctional Standing Orders and other related correctional policies.” By virtue of Subsection 2 (b), anyone charged for the said offence is liable on conviction to a fine not exceeding N3,000,000 or imprisonment for a term not exceeding three years or both.
Against this background, the following is a dialogue between a learned colleague and I on the legal propriety of the possible prosecution. I call my colleague “counsel” for this purpose, while I go by the name, Tim. Read on.
Counsel: I feel for ‘Fisayo. It’s a thankless, sacrificial thing he has done. But you know, if they decide to prosecute him, they have a good case.
Tim: Forget it. It’s a hopeless case in law and common sense.
Counsel: Let’s talk law. Stick with the law.
Tim: What do you mean by sticking with the law? You talk about law as if it’s a lifeless object that can be removed from the context of human society and human relationships.
Counsel: The law is not perfect. But the tenets of the law is that of certainty and uniformity. We cannot excuse certain conducts because of morality if the law frowns at it. If we create an exception for this and create an exception for that—slowly but surely, the Rule of Law would come crashing, and the entire fabric of the society with it.
Tim: Man is not made for law; law is made for man. And law is not an end in itself but a means to an end, which is justice. The day we agree to do law for law sake, caring less whether or not it achieves the end of injustice, we have lost the essence of law.
Counsel: What is justice? Isn’t that a jurisprudential complexity in itself? Do we do away with what is unambiguously stated in our laws as an offence just because we have a subjective view of what justice is? We will come back to the issue of justice. Let’s stick with the law first. Do you agree that the law is an ass?
Tim: Yes, the law is an ass as long as men choose to be assholes.
Counsel: Funny. But do you agree that according to the law, a physical act and a guilty mind are what constitute a crime? And that motive is irrelevant? It’s just like a starving man who steals to stay alive or to feed his family. Does the motive for his theft detract from the fact of commission of a crime?
Tim: You are comparing apples and oranges.
Counsel: How so? A journalist’s motive for breaking the law is irrelevant. The question is “did he break the law? Did he intend the natural consequence of his action?” Those are the facts in issue.
Tim: That is not a law of Medes and Persia that cannot be derogated from under exceptional circumstances like this. In fact, motive in his case is a pointer to the absence of a guilty mind.
Counsel: You want to rewrite settled principles of law.
Tim: No principle of law is cast in stone. None could possibly envisage all possible future circumstances to cover. Principles of law must essentially be expanded and contracted to achieve the end of justice.
Counsel: Justice again! Stay with the law first, bro! What tenable argument can you proffer to excuse his guilty mind?
Tim: I already told you. He had no intention to break the law to achieve any self-gratification. It was purely sacrificial to expose systemic corruption. Systemic corruption cannot be fought using conventional styles. It has to be unconventional.
Counsel: So, altruism is your argument.
Tim: That, and much more.
Counsel: The altruism claim can be faulted. Nobody is completely altruistic.
Tim: Tell me what he stood to gain exposing himself to such risks?
Counsel: Fame, for one.
Tim: Balderdash! Are there not easier ways to be famous? Whatever happened to blogging your way to Ovation and the likes?
Counsel: Well, some opt for costly popularity rather than cheap popularity. Doesn’t make it 100 per cent altruistic
Tim: Utter tosh!
Counsel: And your argument of having to use unconventional means does not hold water. The law is what it is. Break it, pay for it. Such is life. And life isn’t always fair.
Tim: That is mechanical thinking. Too pedestrian! You talk as if legal education is rote learning, and jurists and judges are robots without a mind for critical reasoning. Have you ever heard of an undercover journalist in the civilised world jailed for their investigative work?
Counsel: Have you ever heard of one who was tried but not convicted?
Tim: No, I have not heard of it perhaps because the prosecution would not even contemplate it. That is why they have wide discretion on who to prosecute and whom not to prosecute. I dare Nigeria’s law enforcers to declare him wanted, prosecute and convict him and enter the Guinness Book of Record of the Worst Villains.
Counsel: I agree. They have the discretion not to charge him. But my point is, if they decide to, they will likely win.
Tim: No, they won’t, except the judge wants to fight for the front page of that Book of Record with them.
Counsel: What excuse would a judge have in law not to convict him if the Prosecution proves beyond reasonable doubt the elements of the offence and a concurrence of the actus reus and mens rea?
Tim: Public policy is a thing. So is judicial activism.
Counsel: There is a thin line between judicial activism and judicial rascality. You can’t upturn settled principles of law by fiat.
Tim: A core duty of a judge is to make laws by interpreting the law to suit the end of justice. Failure to do that is failure in all that he or she swore to uphold.
Counsel: Who determines what is just?
Tim: There are shared human values that we hold as a people; and the test of a reasonable man can be called to aid.
Counsel: That is subjective.
Tim: Objectivity has always been a subject of subjectivity. There is no other way to attain, progress, peace and prosperity. And of course justice!
Counsel: Law! Talk law, bro!
Tim: Law is not just rules and regulations. Law is wrapped in philosophy, psychology, sociology, and critical thinking! Listen, why were the principles of equity evolved at a time in English jurisprudence? Was it not to mitigate the harshness of common law? And why do we talk of substantial and technical justice today? Is it not to ensure that what is fair, equitable and just prevails over and above slavish adherence to rules?
Tim: There is even a portion of the Rules of Professional Conduct that aligns with my position… Check Rule 15.
Counsel: What does it say?
Tim (retrieves the Rule to peruse): Yes, Rule 15. While 15 (2) (a) insists that a lawyer shall keep strictly with the law in his representation of his client notwithstanding any contrary instruction from such client. 15 (3) (c) gives a mandate that I find so profound and fundamental.
Counsel: I’m with you.
Tim: It says a lawyer shall not knowingly advance a claim or defence that is unwarranted under existing law, BUT HE MAY ADVANCE SUCH CLAIM OR DEFENCE IF IT CAN BE SUPPORTED IN GOOD FAITH FOR AN EXTENSION, MODIFICATION, OR REVERSAL OF EXISTING LAW.
Tim: See that caveat—extension, modification, or reversal of existing law! We should be agents of social engineering through a purposive interpretation of law. We are lawyers, not mechanics!
Tim: I shudder when people try to extricate morality completely from the law. Society will collapse if our laws do not have a public morality face. Even the constitution recognizes laws reasonably made for the purpose of public morality, and clothes them with such enormous power that some fundamental rights can be derogated from under the grounds of public morality! But that is a talk for another day. Today, we must emphasize that any law that gives the Prosecution or a Court power to persecute a journalist who is fighting to break us loose from the chains of systemic corruption under the guise of prosecuting him is no law at all. Trust me, the day the Apex Court holds that it is an offence for the press pursuant to Section 22 of the Supreme Law to uphold the responsibility and accountability of the Government to the People through unconventional means, I will permanently hang my wig and gown. Thank you for your time.