— 4mins read
The state government, through its legal team led by Bayero Dan Esq., accused Odinkalu of flouting the state’s criminal law by allegedly disseminating false information, injurious falsehood, constituting public nuisance and inciting disturbance, offences said to be punishable under the state’s Penal Code, sections 104, 373, 150 and 77.
“Upon an exparte application coming up today, the 23rd of March, 2019 for hearing before Hon. Ibrahim Musa Esq. Chief Magistrate praying for the following orders.
“An order of the honourable court directing the referral of this criminal complaint, pursuant to the provisions of Part IX of the Kaduna State administration of criminal justice law to the commissioner of police, Kaduna State for investigations of the allegation contained in the complaint.
“…having listened to a Bayero Dan, Esq Counsel to the applicant and perusing the 4 paragraph affidavit in support, it is hereby ordered that the application is granted as prayed”.
The motion was granted 22nd March, and signed by the state chief magistrate, Hon. Ibrahim Musa.
On 28th March, the State Government, in a petition, signed by Binta U. Haruna charged the Deputy Commissioner of Police, Criminal Investigation and Intelligent Department, Kaduna State Police Command to commence an investigation on the case – KMD/27DC/2019 against the human right activist.
How it began
Prior to the court order, Kaduna State Governor, Nasir El Rufai claimed 66 people were killed during an attack by criminals on various settlements in Kajuru local government of the state. He stated that the details were provided by security officials among which 22 children and 12 women were among those killed.
Few days after, the governor put the figure at 130, condemning individuals who might have doubted the casualty figure.
He said in an earlier statement issued by his spokesperson, Samuel Aruwan that he was accompanied by Major-General Faruk Yahaya, GOC 1 Division of the Nigerian Army, Air Cmdr. I. Sani of the Nigerian Air Force, Police Commissioner, Ahmad Abdurrahman and State Director of the SSS, A.I. Koya including Cafra Caino, the Chairman of Kajuru LGA.
But Odinkalu faulted the casualty figure, including the timing stressing that the state governor was just playing politics with the incident.
The lawyer further claimed there was no security officer whether police or Department of State Security at the premises as claimed by the governor.
“And he was dropping this bromide like he was on some substance, with all due respect. I spent all of last night trying to verify from all the sources in Kajuru and nobody can verify or substantiate that there has been a killing of 66 people in Kajuru over the past few days,” he stated on Channels TV.
“…..66 Nigerians killed, that is too many if anybody claims that 66 people were killed in Kajuru this week, including the state governor of Kaduna state, let us all go and verify it,” the state government quoted Odinkalu in an application for Criminal Direct Complaint submitted to the Kaduna state chief magistrate. “I am not willing to allow that story to go away, it is not true”.
Odinkalu’s position was supported by the Christian Association of Nigeria (CAN), Kaduna State Chapter and the North-West office of the National Emergency Management Agency (NEMA). Both organisations said the claim was false.
While CAN said the figure branded by El-rufai was ‘false in its entirety’, Mr Ishaya Chonoko, Zonal Coordinator of NEMA said, “it is not true that 66 people were killed in Kaduna State. I am in Kaduna now and I can confirm to you that I am not aware of any 66 people that were killed by in Kajuru LGA by unknown gunmen,” he told PUNCH.
Odinkalu, in a text to The ICIR, expressed hope that truth would prevail when asked of a shred of evidence to back up his claim which faulted the number of deaths projected by El Rufai. He added that he has not been served any court notice regarding the matter.
“Evidence in respect of the case? I have not been served any papers. All I know is truth cannot be hidden for too long. In the end, there is only one truth in this kind of case and it will be out,” says Odinkalu. “If anyone is hiding 66 dead bodies or playing ethnic origins, in the end, the truth will be out.”
Kayode Oguntuase, a lawyer said the court does not necessarily require the permission of the accused before being investigated but the ex-parte application was to probe the allegations.
He added that the accused still has the right to reply whenever the action is rightly brought to his notice.
“There was no need to put him on notice because it was an application to investigate the matter. They have not brought any action against him per se,” Oguntuase said. “If there was an action, perhaps before the court granted an ex-parte order to prosecute him that would be wrong.
“They are just application to THE police to investigate the matter. Basically, the order is not harmful. The court will not attempt such if it is harmful. He still has a right. When it is time, they would invite him for interrogation or investigation…then they can proceed to the trial proper.”
Uchena Amulu, a human right lawyer in his remark described actions of the state government as illegal for attempting to prosecute the accused without his notice through the ex-parte order. He also queried why the state government sought to prosecute the activist in Kaduna state and not in Abuja when the accused did not commit the alleged offence in the state and also not an indigene of the state.
According to him, the state had “gone to poison mind of the judge as he (Odinkalu) won’t have gotten justice if he were to appear in court”.
However, Amulu explained that after police investigations, proofs and other results would be sent to the Director of Public Prosecution, who would thereafter give legal advice to the state attorney-general on whether the case should proceed or otherwise.
“If someone has done something wrong, you write a complaint to the commissioner of police or the Inspector General who will set up a committee to look into it. They will invite the person and if the person fails to come, they can arrest the person through a warrant of arrest”.
“…after police finding, it will be sent to the Director of Public Prosecution and further sent to the state attorney-general. So the police on their own cannot say a person has committed an offence except in rare cases.”
DSP. Yakubu Sabo, Police Spokesperson for the Kaduna State Command did not answer calls put to him. He also did not respond to questions sent to him via SMS.
Lawyers have, however, argued that Section 375 of the Criminal Code Act, 2004 neede to be expunged, declaring it as null and void, as the criminal defamation interferes with freedom of expression.
Countries that have abolished criminal defamation includes Ghana, Mexico, United Kingdom, Norway, Jamaica, Ukraine, Georgia, Macedonia, New Zealand among others.