THE ADVOCATE BY ONIKEPO BRAITHWAITE
Happy New Year my dear Readers. We thank God for letting us see the year 2021, after a somewhat difficult 2020. May 2021 be a better year for us all. Amen. Dare we bother to have any positive expectations for our dear country Nigeria in 2021? Yes – because its always better to be hopeful than pessimistic. It gives one the strength to continue. President Muhammadu Buhari’s New Year Address was positive enough, and if it is supported by the requisite action, then, indeed, 2021 and beyond will be better for Nigerians. Even though the buck stops on the President’s table, it cannot be his sole responsibility to move the country forward; it must be a collective effort – the Governors (who hitherto have mostly been able to escape liability) and all the other arms of Government, must make a combined and concerted effort to make Nigeria better for us all, going forward.
I will not waste any time dwelling on the past failures of Government, whether past or present administrations, because they are all culpable. There is no point in rehashing the obvious – insecurity, corruption, poverty etc. I’m sure the authorities are very much aware of all this, unless they prefer to indulge in self-delusion. Rather, I prefer to look forward to the actualisation of as many of the contents of President Buhari’s Address as possible, and to a brighter future for our country.
My advice is that, just as an elderly person in their twilight years prepares for death by repenting and making reparations to secure a place in Heaven instead of Hell, so also should President Buhari and his administration who have about two and a half years left of their eight year tenure, pay attention to building a lasting positive legacy on which they will be judged and remembered. The President strikes me as one who would want to be remembered for good. However, it is simply not enough to have good intentions – the intentions must be accompanied by ‘actus reus’, a term which in the context of this piece, I use to signify the physical acts and concrete action that constitute the actualisation of President Buhari’s intentions.
Mens Rea and Actus Reus
I’m making an analogy between President Muhammadu Buhari and his administration on the one hand, and mens rea and actus reus on the other hand (not because many others have not died extra-judicially or due to insecurity under previous administrations, but because President Buhari’s administration is presently at the helm of affairs); and the defences which may be open to President Buhari’s administration as the Defendant in this scenario. The scenario for the purpose of this discourse, is that I draw a parallel between the undesirable situation in the country and the offence of murder, make President Buhari and his administration the Defendants (Accused Persons), and look at the defences open to a Defendant facing a murder charge.
In criminal law, apart from strict liability offences (offences in which the mens rea or malice aforethought does not have to be proven), mens rea and actus reus, that is, the guilty mind and the guilty act go hand in hand, in order to prove that a Defendant is guilty of a particular crime. The offence of Murder in Section 316 of the Criminal Code (applicable in Southern Nigeria) and Culpable Homicide in Section 221 of the Penal Code (applicable in Northern Nigeria) both emphasise on the ‘intention’ to kill (and inflict grievous harm) – that is, the mens rea/malice aforethought required to constitute a case of Murder and Culpable Homicide. This mens rea is obviously combined with the actual act of unlawful killing, to constitute Murder/Culpable Homicide.
Would it be Murder or Culpable Homicide, if a person wished another dead, even went as far as planning how to kill the person, announced to people that he wants to kill the person, but never actually lifted a finger or did anything to harm, kill the person or execute any plan in furtherance of his black thoughts and utterances? I think not. My point? President Buhari’s intention must be accompanied with requisite physical actions, to accomplish anything. Intention does not suffice. Whichever way, if it means rejigging his team or policies to achieve better results, a new strategy is desperately required to move the country forward, at least as far as actus reus is concerned.
Some of the defences opened to a Defendant charged with the offence of Murder are Provocation, Necessity, Duress, Mental Illness, Self-defence and Alibi, the latter two otherwise known as ‘exculpatory defences’, because where such defences can be established, they exonerate the Defendant – in the case of alibi because the Defendant lacked the mens rea and actus reus for the commission of the offence. See the cases of Iliyasu v State 2015 11 N.W.L.R. Part 1469 Page 26 at 59 per Nweze JSC; Aliyu v State 2013 12 N.W.L.R. Part 1368 Page 403 at 425 per Onnoghen JSC.
Alibi literally means ‘elsewhere’ – it is physically impossible for a person to be in two places at the same time. In simple terms, it means that the Defendant alleges that at the time the offence he/she is being charged for was committed, he/she was elsewhere, and not at the scene of the crime. See the cases of Agu v State 2017 10 N. W. L. R. Part 1573 Page 171 at 199-200 per Rhodes-Vivour JSC; Sale v State 2016 3 N.W. L. R. Part 1499 Page 392 at 417 per Ogunbiyi JSC.
The onus of establishing an alibi is on the Defendant who pleads it, since it is within his/her personal knowledge. For the defence of alibi to succeed, it must be pleaded at the earliest possible opportunity with sufficient particulars, so that the Police can investigate same, as the onus then shifts to the Prosecution to disprove the defence, by an eyewitness account or other means. Aliyu v State (Supra); Odu & Anor v The State 2001 10 N.W.L.R.Part 722 Page 668. “It is trite law that once an alibi has been raised, the burden is on the Prosecution to investigate it and rebut such evidence, in order to prove the case against the accused beyond reasonable doubt”: See Adedeji v State 1971 1 A.N,L.R.75 per Muhammad JCA (as he then was) in Kwagshir v State 1994 2 N.W.L.R. Part 328 Page 592 at 614.
Would the defence of alibi be applicable to this administration, in the scenario of the undesirable condition that Nigeria finds herself presently in under its watch? Would it avail them, especially as their stock in trade is to blame the PDP for everything that has gone wrong in Nigeria, without accepting culpability for anything? Would the evidential burden (balance of probability) be discharged in this scenario, as it would be if this administration’s matter was as straightforward as one in which a person who was charged with a murder that took place in Jos, Plateau State was actually in Awka, Anambra State at the relevant time, thereby making it physically impossible to be in both places at the same time?
Government’s scenario, is obviously not as clear cut or straightforward. Yes, indeed, President Buhari assumed leadership in 2015, 16 years after PDP had held sway, so we know his administration was certainly not at the helm of affairs till they assumed office on May 29, 2015 – to that extent, they were ‘elsewhere’; and in terms of insurgency, Boko Haram was already running riot in the North East before 2015, corruption had already become the order of the day, while oil prices had already crashed. In short, the situation was already dire, before President Buhari assumed office. However, this bad state of affairs was very much known to this administration, and it was on the basis of this that in their campaign, they promised Nigerians a ‘change’, ostensibly for the better.
The question which then arises is, if a person was shot by armed robbers and lay there bleeding, but alive and in urgent need of medical attention, and instead of taking the victim to the hospital, Paramedics who appear on the scene decide to shoot the victim dead instead of conveying him to the hospital to save his life – are they not also culpable like the armed robbers who shot and left the victim for dead in the first place? Neither of the two groups, that is, the armed robbers and the Paramedics would be adjudged to be blameless, in a court of law. The degree of their culpability, would depend on the cause of death of the victim.
The moral of the story is that, it is time to move beyond rhetorics, criticism, trading blame and recycling the narratives of what we all know by heart has gone wrong with our dear country. Successive administrations, the military very much included, are all guilty for the sorry state that Nigeria finds herself today, as a result of predominantly bad governance. The President himself was once a military leader, and so was former President Obasanjo. Half of the members of APC today, were once part of PDP, some of them holding key positions in governance in different capacities. Can they then truly claim that they were ‘elsewhere’ and not part of Nigeria’s problem, and thereby establish the defence of alibi to exonerate themselves from the blame for the crisis that we are facing on many different levels? As it is said in company law, if the ‘veil was lifted’, many of these characters would be the first to be identified! The answer therefore, to that question is a resounding NO. Consequently, it is time for proffering useful and workable solutions, in order to actualise many of the contents of President Muhammadu Buhari’s 2021 New Year’s Address. Let’s make progress.