I have read series of commentaries, even from professors of law, on the Ganduje video clips receiving kickbacks in hard currency from contractors. There’s an angle of criminal and civil practice of adjudication that most commentators failed to recognize which I wish to point out here.
When the first two videos were released through Daily Nigeria by its publisher (Jaafar Jaafar), the Attorney-General of Kano State issued press statement informing of criminal prosecution against Jaafar Jaafar for forgery or doctoring of the videos. They alleged the videos are fake or cloned or doctored.
One thing we should note is that in the court of public opinion, Jaafar Jaafar is the ‘accuser’ while Ganduje is the ‘defendant’. But in regular court, Ganduje and/or Kano State is the accuser/complainant while Jaafar Jaafar is the ‘defendant’. In the criminal case, Ganduje/the State is accusing Jaafar Jaafar of cloned, fake, forged or doctored videos of bribe against Ganduje. So, Jaafar Jaafar is the accused (defendant) in the case. In the civil case in which Ganduje sued Jaafar Jaafar and Daily Nigeria, Ganduje is the plaintiff while Jaafar Jaafar and his online media outfit are the defendants. In both cases, Jaafar Jaafar is defending allegations of fake, cloned or doctored videos.
In Nigeria, we practice accusatorial/adversarial system of criminal justice, in difference to inquisitorial criminal justice system. The judge assumes the position of an unbiased umpire and is prohibited from jumping into the arena of conflict, while the prosecutor and defence counsel slug it out before him. In the criminal case against Jaafar Jaafar, the State (represented by A-G), is accusing Jaafar Jaafar of doctoring the bribe videos, alleging that they are fake or cloned. However, when it is alleged that something is fake (or counterfeit) in a court of law, the presumption is that there’s bound to be the original one of that thing. The onus is on the one who assert a fake substance to produce the original one for comparison. The court must be convinced which among two substances is fake and which is original. If the videos are cloned, there’s supposed to exists the video of someone taking bribe in hard currency for which Ganduje was superimposed. Clone means a copy or imitation of something already existing, especially when designed to simulate it. I think the use of the term ‘fake’ or ‘cloned’ to describe the videos may work against the prosecution. Just thinking anyway!!
Since the accusers of Jaafar Jaafar are also alleging that the videos were doctored, the onus is on the one who assert that the videos are doctored or cloned or faked to produce the videos before the court and prove beyond reasonable doubt that the videos are doctored or cloned or faked. Jaafar Jaafar may be served notice to produce the videos in line with practice procedure but under the Evidence Act, 2011, the onus fixes on the one who asserts the existence of a thing to prove it. Simply, Ganduje/the State must prove and show to the court that the videos are fake, cloned or doctored. On the authority of MOHAMMED VS. STATE (2012) ALLFWLR (Pt.621) page 1564, the duty to prove beyond reasonable doubt that the videos are fake, cloned or doctored will not shift. It remains on the prosecution. The prosecution may call expert witness (visual experts) or the DeepFake scientist in aid of the prosecution but the courts in the land are not entitled to accept the testimony of expert witnesses willy-nilly.
On the authority of DR. CHRIS NWABUEZE NGIGE VS. MR. PETER OBI, INEC & 448 ORS (CA/E/EPT/5A/2005) reported in EPR VOLUME-6 Page 1, the Court of Appeal (Enugu Division) held that there is duty upon the court to assess and evaluate the evidence of expert witness in a case. Therefore, the judge is at liberty to jettison whatever scientific postulations the expert witness or the DeepFake scientist profers and rely on his/her own vision power to come to definite findings after painstakingly watching the videos.
The presiding judge is a human being like us. He is not jinn ‘aljannu’ or spirit and therefore does not possess extra power of sight. He will critically watch the video with his own naked eyes and form a personal opinion of the visuals. At the end of the day, doubts may be created in his mind based on technical displays of the expert witness to show ‘fakeness’ of the videos and the personal judgment he formed by watching the videos with his own naked eyes. It is just possible that the videos are doctored as presented through expert witness. It is also possible that the videos are real as watched by naked eyes of human beings. Which of these two extremes will the court take? From plethora of judicial authorities, the law is trite that where doubt is created in the mind of a judge in criminal proceedings, the doubt will be resolved in favour of the accused. See the case of HASSAN JIMOH VS. THE STATE (2014) NCC VOLUME 9 2014 Page 463. The State may fail in the criminal proceeding against Jaafar Jaafar.
In the civil case (libel suit) which Ganduje personally instituted against Jaafar Jaafar and DailyNigeria, the same scenario will play out. Ganduje claims defamation of character and N3 Billion compensation and apology. The basis of his suit is that the videos are cloned or doctored or fake and therefore defamatory of his person. Electronic evidence is guided by Section 84 of Evidence Act, 2011. Ganduje must also satisfy the court on preponderance of evidence that the videos are fake, cloned or doctored. He can only succeed against Jaafar Jaafar if he could prove the ‘fakeness’ of the videos or that the videos are cloned or doctored. Expert witness and the personal opinion of the judge after watching the videos are very important considerations here. The contractor may testify in court as the giver of the bribe, and once his testimony is credible, authentic and acceptable, the court will act upon it. Then, the issue of fake, cloned or doctored videos will naturally give way. Some people are of the opinion that the bribe giver is not known because his identity was not revealed in the videos. Jaafar Jaafar is not under obligation to reveal the identity of his source of information to the public or the committee of Kano State House of Assembly. The identity of bribe giver will only become an issue when the law enforcement agents decide to prosecute Ganduje in a court of law.
Moreover, on the authority of MR. ADEMOLA ADEWUNMI ODUTOLA & 11 ORS. VS. PROFESSOR AKIN MABOGUNJE & 4 ORS. NSCQR VOLUME 53 2013 Page 31, evidence of expert witness can be challenged by calling another expert witness to show the contrary. This means if the prosecution or Ganduje call expert witness to show that the videos may be fake, cloned, doctored or that they are actually fake, cloned or doctored, Jaafar Jaafar is entitled to call another expert witness to show to the contrary. This is where Amnesty International and other expert witnesses may come in the case.
Ganduje has a herculean task to succeed in the criminal and libel suits against Jaafar Jaafar and Daily Nigeria. My personal opinion is that Ganduje should resign honourably. The records of court in his case will serve as a reference point and posterity in judicial archives, especially in view of the fact that he may fail in court. If he is prosecuted after resignation, possibly along with the bribe giver, he may be exonerated through the help of lacuna in criminal justice system. For now, he appears to me not doing the needful.