A Federal High Court in Abuja on Friday rejected part of the application by the Federal Government seeking approval to enable its prosecution witnesses to wear mask while testifying in the trial of the leader of the Indigenous People of Biafra and founder of Radio Biafra, Nnamdi Kanu.
Justice James Tsoho ruled that the provisions of section 232 (4)(e) of the Administration of Criminal Justice Act 2015 only allowed such witness protection in a trial involving terrorism charges.
He added that to allow the kind of witness protection in cases involving offences other than terrorism, it must be provided for by an Act of the National Assembly.
He ruled that the prosecution failed to furnish the court with any Act of the National Assembly stipulating that prosecution witnesses could be masked in the trial of Kanu and his co-defendants for such offences as the ones preferred against them.
But the judge granted other prayers in the application, including the one seeking the exclusion of names of the prosecution witnesses from records of proceedings.
In granting other part of the prayers, the judge also restated its earlier order permitting only parties to the suit, their lawyers, accredited journalists and some of the relatives of the accused persons to attend the trial.
Kanu, and his two co-accused – David Nwawusi and Benjamin Madubugwu – are being prosecuted on six counts of treasonable felony, unlawful possession of firearms and other offences bordering on their agitation for secession of the Republic of Biafra from Nigeria.
The prosecution through a motion on notice filed on February 9, 2016 had sought a number of protection measures for its which it said had been inundated with threat messages warning them not to testify in the case.
The judge, after hearing the arguments for and against the application on Friday, took a break for about three hours and returned to deliver his ruling at some minutes past 2pm.
Justice Tsoho, in his ruling, said though he appreciated the fear said to have been expressed prosecution witnesses, he ruled that details of the threat given by the prosecution were not sufficient.
“I hold the respective view that while the fear of the fear is appreciated, it is not all prayers that can be granted,” the judge ruled.
He upheld the submission of the defence lawyer, Mr. Chuks Muoma (SAN), who opposed the application on and among other grounds that allowing the witnesses to wear masks would deprive him (the judge) of watching the demanour of the witnesses while testifying.
“There is no gain saying the fact that demeanour is crucial in criminal trial in evaluation of evidence,” he ruled while adding that “the look of the witness forms a key part of his demanour”.
He also rejected the prosecution’s argument that majority of its witnesses were residing in the place of dominance of the accused persons.
The judge said his findings from the list of witnesses filed by the prosecution only one was said to be residing in Enugu, two were said to be residing in Enugu/Port Harcourt, while the rest were said to be living in either Lagos and Abuja.
He however noted that the Federal Government had the capacity to protect its witnesses even without the court granting all the prayers sought in the application.
After the ruling on Friday, Muoma reported to the court that record of some of the property seized from one of the accused persons (Nwawuisi) when he was arrested could not be found and urged the court to make appropriate directive about it.
The property include, a jeep, Toyota Camry, Toyota RAV 4, a Mercedez Benz and their spare keys.
But prosecuting counsel, Mr. David Kaswe, promised to investigate the issue and report back to the court.
The case was adjourned till March 7, 8, 9, 10 and 11 for trial.