On the judicial front, the Supreme Court has held that a hearing can only be fair when all the parties to a dispute are given an opportunity to be heard. If one of the parties is not given an opportunity to be heard, the hearing cannot qualify as a fair hearing. The concept of fair hearing postulates a hearing in which the right is freely exercised and consistent with the fundamental principles of justice embraced within due process of law. Contemplated in fair hearing is the right to present evidence and to confront your accuser. Thus, it implies that both sides be given an opportunity to present their respective cases without any let or hindrance. See Olugbenga Daniel v. Federal Republic of Nigeria. Pray, how can Nnamdi Kanu be expected to freely exercise such right in an atmosphere of being a terrorist eternally hunted by Nigerian army.
The right to be heard is so inalienable that the Courts strain every nerve to protect it and even imply it where a statutory form of protection will be less effective if it did not carry with it the right to be heard. See UBA v. Oranuba. And Effiom v. the State, the Supreme Court held that fair hearing requires ‘unhindered access to court’. Access to court requires that the accused be free from the specter of injury to his limb and liberty – occasioned by the State – throughout the pendency of the trial. With the deadly disposition of the Nigerian army towards Nnamdi Kanu, how can anyone be sure that he would not be shot on sight on his way to court? This is even assuming that he’s in a state or position to attend court.
But, if as it increasingly appears that the judge is foisting a situation that will force a trial in absentia (and revocation of his bail), that too is fraught with a helluva of constitutional questions, which again bear directly on fundamental fairness. The public interest in the proper administration of justice free from doubt or chance of miscarriage requires a defendant to be present at his trial at its commencement or at any rate for some part of it, to ensure that the case of the prosecution was properly challenged and tested, and that there could not be public confidence in the reliability of a conviction if the defendant had not been present at his trial. This right is recognized by our Constitution and all the subsidiary penal statutes.
The discretion of a judge to proceed with a trial in the absence of the defendant is one to be exercised with great care and reluctance. So, there can be circumstances where in the interests of justice a judge is entitled to decide not to proceed, particularly when the defendant has not deliberately absconded to avoid trial. Nnamdi Kanu did not – on his own volition – disappear from the face of the earth, but was constructively ‘disappeared’ by those that invaded his home. A voluntary waiver of the right (or the obligation) to be present at one’s trial requires true freedom of choice.