Selective Justice in Nigeria and the Bobrisky Decision:  Why Kill a Small Fly a Machine Gun?

Introductions 

In a small seaside town, two fishermen were saved after their boat was tossed about by a big storm that eventually made it capsize. Once they were rescued and back on dry land, the local coast guard sent them to see a specialist to make sure they were okay after the traumatic and life threatening encounter they had. The specialist met with the first fisherman and after hearing about his ordeal, recommended some rest and a few sessions with a counselor, to help him feel better.

The second fisherman came in and the specialist look at his notes several times, pushed up his glasses, and thought for a moment. He then explained to the fisherman that, just like his buddy, he had been through a tough time but needed a different kind of help or therapy. This fisherman was advised to join a long rehabilitation program that would help him deal with tough situations.

Remember that essence of rehabilitation is empowering individuals to regain autonomy, dignity, and purpose.

The question arises: how could the same specialist, after diagnosing two fishermen who went through the same storm with similar emotional impacts, recommend different recovery programs for them? Wouldn’t this kind of differing treatment advice lead to complaints or even calls for disciplinary actions against the specialist?

This is the situation in Nigeria, where the judgements in some money abuse cases are far from the intention of the laws for the regulations of the said offence.

The case referenced here is that of the celebrity actress Oluwadarasimi Omoseyin, who was convicted for spraying and stepping on new naira notes and sentenced to six months in prison but with an option of fine, and that of Okuneye Idris Olanrewaju (Bobrisky) who was also sentenced for the same offence with no option of fine.

It was Lord Chief Justice Gordon Hewart in the foremost English cases of R v Sussex Justices, ex parte McCarthy (1924) who said, justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

This landmark quote implies that justice and justice delivery system should not just be fair, but perceived as fair and that the principles of impartiality and transparency are the cornerstone of a true justice system. More so Dr. Martin Luther King Jr. posited that ” law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.

Laws are fundamentally designed to serve the cause of justice, and to ensure fairness and equality, however, when they deviate from this purpose, they not only cease to function properly but also become significant barriers to societal progress. When just laws are used unjustly, or when justice is applied unjustly, it leads to the obstruction of the advancement of the society. They become a hindrance to the natural flow of social and moral order towards greater equity and application of justice.

On the 24th day of March 2024, the controversial cross dresser, Okuneye Idris Olanrewaju popularly known as Bobrisky, was arrested by the EFCC for offence of abusing the naira notes. He was subsequently arraigned before Honourable Justice Abimbola Awogboro of the Federal High Court sitting in Lagos on the 5th of April, wherein he was charged with 4 (four) counts offence, bordering on naira abuse by spraying of the currency at public events which was contrary to section 12(1) of the Central Bank Act, 2007.

He pleaded guilty to the four counts charge and was thereafter convicted by the court and on the 12th April 2024, he was sentenced to six months’ imprisonment, with no option of fine. The court held that the judgment will serve as a deterrent to those who are always in the habit of abusing the naira.

Of course justice has been done, but has it been manifestly and undoubtedly seen to have been done? Does the decision of the court in this case reflect so? Is this a reflection of true justice or bias? Or is this a punishment in disguise, for cross-dressing? Isn’t the punishment of the law applicable to everyone who commits the same offense? These are the grey areas that cries for illumination. We hold the view that this decision might exhibit traits of selective justice or disproportionate application of the law.

 

Definition of Selective Justice

For the purpose of this article, “Selective Justice” refers to practices where legal systems or institutions, enforce laws, norms or rules in a biased or unequal manner – favoring certain groups over others. Selective justice is defined as the inconsistent application of legal due process. Selective justice remains a problem, as those unfavourable with the government are handled while those in favour are not, suggesting an instrumental use of the fight against corruption (Bertelsmann Stiftung, 2012).

Selective justice, for whatever reason, is clearly unacceptable in a democratic country that respects the rule of law. It has been used by several governments in negating opportunities for real justice. This undermines the possibility of asserting human rights in international relations. The most common questions and instances regarding the selective justice are listed below:

– Why do some cases begin with criminal investigation and others do not?

– Why are some trials fast and others slow?

– Why do some people stay in jail before their trial while others don’t?

– Why are some trials open to the public while others are not?

– Why do some people get harsh punishments than others?

– Why are goods of high value seized/confiscated in some cases, while in others, goods of a very low value were seized/confiscated?

– Why are some court decisions enforced immediately, while others would have to wait until after an appeal?

The concept of selective justice is wide and this article does not intend to fully delve into. While this concept has no moral justification, surprisingly, regrettably, and unbelievably, it is legitimate, permissible and valid under our laws. To state but a few, sections 174 and 211 of the 1999 Constitution, give the Attorney General of the Federation and Attorney General of the state, respectively, the power of nolle prosequi – to discontinue the trial of any person at any time before judgement, if this is in the public interest, and the exercise of that power by the Attorney General ultimately cannot be questioned.

Selective justice contradicts the principle of equality before the law and makes the application of the rule of law difficult. It impairs the efficiency of the criminal justice system as the provision of justice is incomplete without upholding the rule of law. Adherence to the tenets of the rule of law make for fair, just and impartial laws which are essential components of a democratic state, as it safeguards against tyranny.

Public concerns must be to ensure that whoever is charged with the commission of an offence, receives fair trial and gets justice in accordance with the law. This is not negotiable. Law enforcement agencies must be encouraged to do more, to investigate, arrest and bring to justice, every criminal big or small, because “equality before the law” demands nothing else.

Contrary to the above, majority opinion by legal authors and political stakeholders are of the view that given a choice between selective justice and no justice at all, the former is preferable. Some hold the view that selective justice is better for society than allowing any thief get away with his loot. This writer is of the opinion that selective justice serves no justice, rather it sponsors injustice.

 

Laws Opposed to Selective Justice

 

1.     The African Charter on Human and Peoples’ Rights (Banjul Charter)

The African Charter on Human and Peoples’ Rights, is also known as the Banjul Charter. The Charter does not justice use the term “selective”, but it upholds principles against discrimination and ensuring equality before the law, which are conceptually opposed to selective justice. Some of the relevant provisions include:

Article 2: Obligates state parties to the Charter to eliminate discrimination and to guarantee equal protection under the law.

Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.”

Article 3: Emphasizes equality before the law and equal protection by the law.

“Every individual shall be equal before the law. Every individual shall be entitled to equal protection of the law.”

The Charter holistically makes provisions to ensure that all individuals are treated equally under the law, a principle opposing any form of selective justice which would entail applying laws differently to different groups or individuals based on discriminatory factors.

Similarly, a violation of Article 6 of the European Convention on Human Rights which borders on fair contravenes obligations to ensure respect for the principles of rule of law.

 

2.     The Administration of Criminal Justice Act (ACJA) 2015.

The ACJA brings a significant change by moving away from solely focusing on punishing offenders to embracing “restorative justice.” Restorative justice means a system of justice which focuses on the rehabilitation of accused/defendant as opposed to punishment. This approach prioritizes the well-being of society, victims, vulnerable individuals, and overall human dignity.

Human dignity is highlighted throughout in the Act. This is evident in the use of “defendant” instead of “accused,” provisions for humane treatment during arrests, emphasis on swift trials, options like suspended sentencing and community service, parole opportunities, and compensation for crime victims, among other aspects. Section 460 Administration of Criminal Justice Act, 2015 provides:

460. (1) Notwithstanding the provision of any other law creating an offence, where the court sees reason, the court may order that the sentence it imposed on the convict be, with or without conditions, suspended, in which case, the convict shall not be required to serve the sentence in accordance with the conditions of the suspension.

(2) The court may, with or without conditions, sentence the convict to perform specified service in his community or such community or place as the court may direct.

(3) A convict shall not be sentenced to suspended sentence or to community service for an offence involving the use of arms, offensive weapon, sexual offences or for an offence which the punishment exceeds imprisonment for a term of 3 years.

(4) The court, in exercising its power under subsection (1) or (2) of this section shall have regard to the need to: (a) reduce congestion in prisons; (b) rehabilitate prisoners by making them to undertake productive work; and (c) prevent convicts who commit simple offences from mixing with hardened criminals. Suspended sentence and community service.

From the above provisions, it is safe to say that the judgement on Bobrisky defeats the entire purpose of the Administration Criminal of Justice Act. The opinion of the court to the effect that “it will serve as a deterrent to those who are always in the habit of abusing the naira” does not reflect the intendments of the law. The judgment has failed to give regards to the conditions stated in Section 460 Administration of Criminal Justice Act, 2015 above, and thereby not in the interest of justice neither is it aimed at rehabilitation of the defendant but rather for the punishment of the defendant.

 

The Decision in Bobrisky”S Case and Selective Justice.

The EFCC is the main agency that is saddled with the responsibility of fighting financial crimes in Nigeria. By virtue of section 7(2) of its enabling law – the Economic and Financial Crimes Commission (Establishment) Act 2004, the EFCC is charged with the responsibility of enforcing the provisions of laws relating to economic and financial crimes, including: the Money Laundering (Prohibition) Act 2011, the Advance Fee Fraud and Other Fraud Related Offences Act 2006, Miscellaneous Offences Act and any other law or regulations relating to economic and financial crimes, including the Criminal Code of Penal Code.

Since its inception in 2004, the EFCC has carried out its primary duties. It has also targeted high level corruption by both private and public officials with some remarkable success recorded. Politicians and businessmen from both the private and public sectors are always on the radar of the commission for one financial crime or the other. We must commend the effort of the EFCC in helping to sanitize the system.

However, lately their operations have called for serious concerns by the well-meaning members of the public. First was the arrest and subsequent prosecution and conviction of popular social media influencer, Oluwadarasimi Omoseyin, for abuse of naira notes by spraying the currency on a public event, which was contrary to section 21 (1) of the Central Bank Act, 2007.

For the purpose of completeness, section 21 of the Central Bank Act, 2007 provides as follows:

21.(1) A person who tampers with a coin or note issued by the Bank is guilty of an offence and shall on conviction be liable to imprisonment for a term not less than six months or to a fine not less than N50,000 or to both such fine and imprisonment.

(2) A coin or note shall be deemed to have been tampered with if the coin or note has been impaired, diminished or lightened otherwise than by fair wear and tear or has been defaced by stumping, engraving, mutilating, piercing, stapling, writing, tearing, soiling, squeezing or any other form of deliberate and willful abuse whether the coin or note has or has not been thereby diminished or lightened.

(3) For the avoidance of doubt, spraying of, dancing or matching on the Naira or any note issued by the Bank during social occasions or otherwise howsoever shall constitute an abuse and defacing of the Naira or such note and shall be punishable under Sub-section (1) of this section.

(4) It shall also be an offence punishable under Sub-section (1) of this section for any person to hawk, sell or otherwise trade in the Naira notes, coins or any other note issued by the Bank.

(5) In this section-

(i) “Matching” includes spreading, scattering or littering of any surface with any Naira notes or coins and stepping thereon, regardless of the value, volume, occasion or intent.

(ii) “Spraying” includes adorning, decorating or spraying anything or any person or any part of any person or the person of another with Naira notes or coins or sprinkling or sticking of the Naira notes or coins in a similar manner regardless of the amount, occasion or the intent.

While the EFCC is obligated by law to regulate financially concerned issues, some people believe that there are far more financial crimes going on in the country that the EFCC should be bothered with and not that of spraying of money at public events.

Furthermore, the trend of spraying money at public events have over the years become part and parcel of the Nigeria culture and the enforcement of laws in that regard will mean that a lot of Nigerians will be arrested every weekend, ranging from the common man to the top political leaders of the country.

Assuming this laws are fully implemented, it will mean that more than half of Nigeria’s population to be convicts within six months. One pertinent question that bugs the mind is:  the CBN Act has been in force for more than 10 years and likewise the EFCC Act, why has the EFCC not had many convictions for the abuse of the naira all these years, only to wake up with the case of Oluwadarasimi and Bobrisky; and as it appears, going after a select few?

While Nigerians were still trying to come to terms with the reality that there is a law that actually criminalizes spraying of money in public events, the EFCC again in April 5th arraigned another celebrity – the controversial Bobrisky as commonly known. He was arrested and tried for the offense of spraying naira notes at a public event contrary to section 21(1) of the Central Bank Act.

A Four count charge was filed against him, all bothering on same offense to which he pleaded guilty. The court afterwards convicted and sentenced him to 6 months’ imprisonment without option of fine. As a First time offender who pleaded guilty to the offense, it was expected that the court will be lenient on his sentencing, however, the court decided otherwise.

Now here is the issue, the sentencing of Bobrisky varied in terms from that of Miss Omoseyin, who was sentenced to six months’ imprisonment with an option of 300, 000 fine. Whereas in the case Bobrisky, the court didn’t consider an option of fine for one who was a first time offender and who pleaded guilty. Same offense but different punishment.

The crime in question is one that is committed every week when Nigerians gather for wedding, burial or birthday celebrations. It is unjust to pick one out of millions to punish as a form of deterrence to others, if there must be a scapegoat then that should be a first class citizen because the first class citizens are the highest violators of the said law. Why must it be Bobrisky, a first time offender who was convicted with no option of fine? This is not how justice is supposed to be served. If it can’t be served equally then, it shouldn’t be served at all.

If the EFCC is serious with this implementing or enforcing this law, then in a month’s time, we should be seeing thousands upon thousands of Nigerians standing trial for spraying of money because one in every 5 adult citizens has breached this law in at least the last 12 months.

The implication of this is that these anti- corruption agencies are selective in the application of rules/laws on the citizens. They are tools used in dealing with political opponents, tools for selective justice. This corroborate with media reports that the anti-corruption agencies, such as EFCC and ICPC are being used by the ruling party to oppress political opponents and persons who have cross its line.

There is still a strong speculation that the EFCC play politics rather than pursuing the cases brought before it.  A concerned citizen once commented thus: “I condemn the persecution of Ibori, Ogbulafor (for an alleged crime he committed way back in 2003), the prosecution of Ribadu, El-Rufai and even Bode George, while the likes of Odili, Sani Yerima, Alao Akala, are walking free enjoying their loot.”

 

Conclusion

This article does not intend to suppress or condemn the law against the abuse of the naira, instead it anchors on the disproportionate application of the law and the selective application of justice. The reality of this is that even one-month sentence is quite sufficient since the effect of such judgement would have been to restore/correct societal ills instead of serving as a punishment, an option of community service is even more appropriate and beneficial to the society.

The fact that Olanrewaju (Bobrisky) is a first time offender who pleading guilty to the offences, should be more reason why the imposition of fine upon conviction would be more appropriate. The imposition of prison sentence points to the likelihood that Bobrisky was rather been punished in disguise for his controversial nature and gender. Why punish a person for spraying money when those who steals billions of naira and flaunts thousands of Naira on public and private events are left alone? Why select few offenders and leave behind the big sharks who trespass this law at every given occasion?

There are hundreds of videos out there of politicians, national leaders of political parties spraying wads of naira notes, how many of them have been arrested and prosecuted. Why has the EFCC derailed, instead of haunting the big fish, they come after the fry. Is the abuse of the naira the biggest financial crime in the country?

We are of the opinion that the prosecution and judgment delivered against Bobrisky is a witch hunt on his person because he is a crossdresser; and moreover, crossdressing is not an offense in Nigeria but may be perceived at best, as a moral wrong. It is our humble view that the sentence handed down to Bobrisky was too punitive.

Domitus Ulpian once said that Justice is the constant and perpetual will to allot to every man his due.” Unfortunately, in the Nigerian justice system, justice is not constant, and its perpetual will only applies to a selected few and not every man according to his due or deed. The reverse is the case in our justice system. Societal balance of justice demands that that which is good for the goose should be good for the gander in a just society – for this reason it is incontestable that we all desire that all corrupt elements be equally prosecuted.

Martin Luther King Jr. also opined that “Injustice anywhere is a threat to justice everywhere.” – the unjust application of the law in selective scenarios and to some select persons is a more dangerous threat to justice and equality. We therefore recommend that restorative justice should be the hallmark of the Nigerian justice system, anti-corruption and financial agencies should be independent of direct government control and the benchmark of justice should be equality, rule of law and equitable and fair dispensation of justice.

 

References

1.      The Constitution of the Federal Republic of Nigeria

2.      Central Bank Act, 2007

3.      EFCC Act, 2004

4.      FRN v. Oluwadarasimi Omoseyin (2023)

5.      R v Sussex Justices, ex parte McCarthy (1924)

6.      https://www.nairaland.com/451782/selective-justice-bad-no-justice

7.       https://www.vanguardngr.com/2017/06/selective-justice-no-justice/

8.      https://www.ajol.info/index.php/lwati/article/view/57495/45877

9.        https://rsilpak.org/2021/selective-justice-a-threat-to-the-rule-of-law/

10.  https://www.lawinsider.com/dictionary/selective-justice

11.  https://freedomhouse.org/sites/default/files/2021-11/fh-Moldova_Report-Selective-Justice-2021_v2-Eng.pdf

12.  https://www.premiumtimesng.com/news/top-news/664514-court-convicts-actress-of-spraying-stepping-on-naira-notes-at-wedding-party.html?tztc=1

13.  https://societynow.ng/actress-gets-6months-prison-sentence-or-n300k-fine-for-abuse-of-naira/

 

 

AUTHORS INFORMATION

Co- authored by: Emeka Okwuokie Lawrence and Evuarherhe Avwerosuo Solace, Faculty of Law, University of Calabar, Calabar.  +2348130356783/+234 814 677 4113/ [email protected]

Leave a Reply

Your email address will not be published. Required fields are marked *

You May Also Like
Read More

U.B.A. PLC V. VERTEX AGRO LTD. : On Duty on financial institution to reverse unauthorized debit on customer’s account within seventy two hours of customer’s written notification -: An insight into the Court of appeal landmark decision. CITATION: [2020] 17 NWLR PT.1754 AT 467.

Courtesy: Moruff O. Balogun Esq. Summary of Facts: The appellant and the respondent had a banker-customer relationship under…
Read More