Vicarious criminal liability?

Gabriel Amalu

COULD it be that the promoters of the #EndSARS campaign which was adjudged by President Muhammadu Buhari and many other prominent Nigerians as legitimate are being set up for vicarious criminal liability? When the president addressed the nation on October 22, and accepted to implement the five-point agenda, promoted by the peaceful protesters, he sanctioned the legitimacy of the protest. That was the right thing, for as a constitutional democracy, our laws allow peaceful protest.

So, at what point did the legitimate peaceful protest turn a criminal enterprise, such that the Central Bank of Nigeria (CBN), appears to have made up its mind to hold the #EndSARS promoters, responsible for the mayhem that followed the peaceful protest? Acting peremptorily, the apex bank approached a Federal High Court, Abuja, to secure an ex parte order to freeze the accounts of the promoters of the #EndSARS. Of course, the mayhem by elements which many recognise as different from those involved in the peaceful protest, have been vigorously condemned by all and sundry.

So, what legitimate ‘facts’ did the CBN present to the court to warrant the grant of a ‘no debit order’ on the accounts of the promoters of the #EndSARS, relying on an ex parte application? Again, could it be true, as reported, that the restraining order obtained ex parte is to last for 90 days? Interestingly, in Kotoye vs CBN 2 ACLC, at p.133, Nnaemeka-Agu JSC, held: “I think it is correct to say that “ex parte” in relation to injunctions is properly used in contradiction to “on notice” and both expressions, which are mutually exclusive, more strictly rather refer to the manner in which the application is brought and the order procured.”

The learned Justice went on: “An applicant for a non-permanent injunction may bring the application ex parte, that is without notice to the other side or with notice to the other side, as is appropriate. By their very nature, injunctions granted on ex parte applications can only be interim in nature. They are made, without notice to the other side, to keep matters in status quo to a named date, usually not more than few days, or until the respondent can be put on notice.”

He went on: “The rationale of an order made on such an application is that delay to be caused by proceeding in the ordinary way by putting the other side on notice would or might cause an irretrievable or serious mischief. Such injunctions are for cases of real urgency. The emphasis is on “real.” I have quoted the learned justice, extensively, to situate the legitimate question: what urgency propelled the grant of ex parte injunction against those whose accounts have been restricted, for leading the legitimate #EndSARS protest?

Unless of course, they are being punished for the calamity that befell many parts of the country, when hoodlums and hooligans hijacked the protest. Since there is no prima facie evidence in the public domain that they participated or sponsored the mayhem, could it be that the CBN holds them accountable by a strange doctrine of vicarious criminal liability?

Otherwise, what could be the reason why CBN jumped into the fray as prosecutor of those whose protest was adjudged as legitimate and peaceful, even by the president? Perhaps the federal government is hoping to conflate the #EndSARS protest with the mayhem that followed, and treat both participants as participes criminis. In Duru vs F.R.N (2019) All FWLR pp. 441-442, Okoro JSC, held: “All persons who are participes criminis, whether as principals in the first degree or as accessories before or after the fact to a crime are guilty of the offence and may be charged and convicted with the actual commission of the offence.”

He went on: “Parties i.e. Participes criminis to a crime, include inter alia, every person who actually does act, or makes the omission which constitutes the offence, person who aids, abets or assists them in the commission of the offence or who counsels or procures others to commit the offence or knowingly gives succour or encouragement to the commission of the crime or who knowingly facilitate the commission of the offence as provided by section 7 of the Criminal Code.”

This column urges the CBN to seriously interrogate her decision to conflagrate the crisis we faced last month, by its action. It should not become an agent provocateur to mesh the peaceful protest with the mayhem that followed. By no stretch of imagination can the promoters of #EndSARS protest be held accountable for the failure of government to protect lives and property, when violence and mayhem became the order of the day. The fact that rioting followed the protest in some instances, is no justification to join the two.

While every sane person should condemn the destruction of public and private properties, the responsibility to prevent that destruction, lies with the government. No doubt, the incapacity of government to prevent the mayhem, emblematised the challenges of policing in our country. To blame those who engaged in legitimate enterprise of organising peaceful protest, amounts to holding them vicariously liable for the criminal acts of those, the government failed to bring to justice.

The CBN should remember that President Muhammadu Buhari had participated in public protest, before he became a civilian president, and it would have been uncanny for those in power then, to hold him accountable for the challenges faced by the government subsequently. If vicarious liability can be stretched as the government is trying to, then those in power should also be held responsible for the mayhem. After all, it is their failure to provide adequate security that allowed hooligans to reign supreme.

Indeed, by the provision of section 7(b), of the Criminal Code, “every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence” is deemed to have taken part in committing the offence. Considering that the present and past governments failed to provide security cameras, for which taxpayers money had been wasted, their leaders should also be held accountable for the mayhem, since their failure has aided the anonymity of the bandits.

By the strange doctrine of Femi Adesina, the president’s spokesman, President Buhari acted like a father, during the mayhem, otherwise, he would have turned the rivers in the country to crimson, with the blood of Nigerians. Perhaps, it is time for the president to act as the democratic president we elected, by ordering the separation of the wheat from the chaff. Nobody should be punished for the criminality of another. Finally, this column urges the Central Bank of Nigeria, not to set itself up, as the chief protagonist of an ignominious enterprise