Last week, the Advertising Regulatory Council of Nigeria sparked some controversy with the ban of advert that concerns the 2023 presidential election. The billboard had the picture of the head of an eagle and measuring scales with the words: “All eyes on the election tribunal judges.” It was signed by a group known as Diasporas for Good Governance.
ARCON suspended the director and deputy director of its Advertising Standards Panel to “enable unprejudiced investigation of the issue,” the statement signed by Director-General of ARCON, Mr Olalekan Fadolapo, said. The statement read inter alia: “The concepts exposed were not approved by the Advertising Standards Panel, hence, the council has directed that all the materials being exposed be brought down immediately and the violators sanctioned.
“The Advertising Standards Panel of the council also erred in the approval of one of the concepts as the advertisement failed vetting guidelines on the following grounds: The cause forming the central theme of the campaign in the advertisement is a matter pending before the presidential election petition tribunal. Hence, it’s jus pendis.
“A matter being jus pendis and awaiting judicial pronouncement is, by virtue of the Nigerian legal system, precluded from being a subject of public statement, debate, discussion, advertisement etc.
“The advertisement is controversial and capable of instigating public unrest and breach of public peace.
“The advertisement is considered a blackmail against the Nigerian judiciary, the Presidential Election Petition Tribunal and particularly the honourable justices of the tribunal who are expected to discharge their judicial functions without fear or favour over a matter that is currently jus pendis.
“The Advertising Standards Panel Secretariat failing to diligently exercise its function as the gatekeeper of advertising, advertisement and marketing communications is hereby dissolved.”
The more precise expression that describes the issue of a matter pending before a law court and therefore prohibited from public discussion is sub judice. What is sub judice? It is a Latin term which means “under a judge.” It means that a specific case is being tried in a court of law under a judge. Consequently, that matter is not meant to be discussed by the public in the media. The reason is that when people discuss the case publicly, they will offer their opinions which may sway the decision of the judge or judges handling the case.
But sub judice does not mean that the case should not be mentioned or reported in the media. If it were so, news channels would be barred from reporting cases pending in court. That would also mean that lawyers would be barred from commenting on their cases pending in court. Even though Nigerian courts don’t allow reporters to video or record court proceedings, reporters are allowed to jot down happenings in the court and report them as news. At the end of each court sitting, they are also allowed to interview lawyers handling such a case to get their comments on the day’s proceedings.
The lawyers are not barred from commenting on the case. The lawyers would simply state what transpired in court, which includes an account of the arguments they pushed forward in court and the counterarguments the other side pushed forward. If there was an adjournment or any directive given by the court, the lawyers will disclose that. If all the parties have completed the presentation of their arguments and the judge or judges have given a date for the announcement of their ruling, the lawyers will also disclose it.
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There is nothing sub judice in all this, because it is all about information. There is no opinion expressed in the matter. If any lawyer or reporter pushes forward an opinion, the court can sanction such a person.
That is why every logical person is wondering what is sub judice in a billboard that says: “All eyes on the judiciary.” Absolutely nothing! The statement simply makes a neutral statement. That statement does not advance any position. It does not ask the judiciary to rule for Mr A or Mr B or to take any action. It is simply saying the obvious, which is that all eyes are on the election tribunal judges to see what their ruling on the presidential election will be.
Unlike in the past when election results had elicited violent protests that led to the loss of lives and destruction of property, this year’s election has not witnessed such violence. There has been a recourse to due process and rule of law, which the lawcourt represents. The people are, therefore, waiting and watching to see how the judges will rule on the case.
The argument by ARCON that the billboard put pressure on the judiciary was weird. It is like saying that a billboard that says “All eyes on the sky” will put pressure on the sun not to rise at all or to rise too early or too late. It is the most ridiculous argument to push forward.
If that statement were sub judice and capable of putting the judiciary under pressure, then all the court reports made by TV stations, radio stations, newspapers and social media should not just put the courts under pressure but under tension. There should have been an order banning all media houses and lawyers from giving any report on the proceedings of any case until the final judgment is given.
In an interview with The PUNCH over the weekend, Fadolapo denied the allegation that ARCON took the decision on the billboard based on a directive from the presidency. He said: “Now, this advert has nothing to do with the presidency, I hope we all know this. These adverts have a lot to do with the judiciary; it has absolutely nothing to do with the presidency. I don’t know why they would say that the President asked us or the presidency asked us to punish them.”
That was a feeble and hollow point to make. Whatever decision the court gives over the 2023 presidential election affects the occupant of the presidency. The ruling of the election tribunal will determine if the present occupant should continue in office or not. The judges will not directly be affected by their own ruling.
In a country with weak institutions – where the presidency determines who becomes the leaders of the judiciary and the legislature, which are supposed to be independent and separate arms of government – it is pointless arguing whether the presidency has a hand in the decisions made by an agency. No self-respecting head of any agency in the country will publicly acknowledge being teleguided by the presidency.
In addition, the presidency does not even need to exert any pressure on an agency before it takes certain decisions. Heads of agencies can, on their own, take ill-informed decisions based on their own political, religious, ethnic, or social leaning. What matters is whether a decision follows the law and logic.
If a billboard reads: “We want to reclaim our mandate. All eyes on the judiciary,” it should not be approved or allowed to stand, because it is partisan and exerting pressure on the judiciary. But if a billboard reads: “All eyes on the judiciary (or election tribunal),” it is preposterous, mischievous and ridiculous for the head of the advertising council to ban such an advert with the excuse that it was blackmailing the judiciary, putting pressure on the judiciary or running against the principle of a case being sub judice. Banning such an advert by ARCON is an embarrassing display of partisanship. Like the former Chairman of Stanbic IBTC Plc, Atedo Peterside, said, “All eyes on the judiciary” should not offend any right-thinking person.
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