INTRODUCTION

In 2010, a number of blogs & newspapers reported the incident of journalists posing as lobbyists for an American company who approached a couple of International Federation of Association Football’s (FIFA) officials and offered them bribe in exchange for their votes. The officials fell into the trap, were exposed, tried before the ethics committee of FIFA and had varying range of penalties imposed on them. One of them, who had the temerity to appeal his conviction had his appeal dismissed and conviction and punishment affirmed.

The FIFA officials never solicited for the bribe. They probably never even thought of the possibility of making any money from the abuse of their office until they were approached by the journalists posing as lobbyists. In spite of all these, the Ethics Committee of FIFA still found them guilty of wrongdoing and imposed severe punishments on them. This is a classic case of entrapment.

Originally, entrapment dates back to the beginning of time when the biblical serpent induced Eve to eat the forbidden fruit in the Garden of Eden. As used in modern time by law enforcement agents. It is therefore a product of changed socio- political and economic conditions of the 18th and 19th centuries.  In South Africa, the use of the technique dates back to the latter part of the nineteenth century diamond and gold rushes, when secret agents were used by the police to trap people dealing illegally in diamond and gold.

The most common definition of a trap is that, which was given by Gardiner and lansdown and was adopted and cited in South African cases of S v malinga (1963 (1) SA 692 at 693 (F-G) and S v Tsochlas (1974 (1) SA 565 A at 574 (B).

” A trap is a person who with a view to securing the conviction of another, proposes certain conduct to him and himself ostensibly takes part therein. In other words, he created the occasion for someone else to commit the Offence.”

Entrapment is usually used as a defense to victimless crimes, such as buying illegal narcotics or soliciting prostitution. Charges of violent crimes like rape or murder or robbery cannot usually be avoided by an entrapment defense.

Further, the entrapment defense is only available where the entrapment was committed by either a law enforcement officer or someone working in cooperation with a law enforcement officer. Thus, if a person is induced to commit a crime by a private citizen, he cannot use the entrapment defense.

Notwithstanding the good sound of the above justification for the use of entrapment, the method has been condemned and subject to criticisms by courts and writers alike.  It has being regarded as unethical, improper, open to abuse, and not an ideal method of crime detection.  Also, that it is against human natural abhorrence of temptation. Yet, entrapment  method has survived all attacks and is still a thriving method of crime detection today.

Following this, there is the imperative need and importance in a democratic country as in Nigeria, to question the the rights Implicated by Unfair Entrapment under the Constitution.   This is against the backdrop of recent calls by well intended Nigerians on law enforcement agents to use intelligence gathering, which often-times include entrapment, as a major tool of countering terrorism, kidnapping and other serious crimes in Nigeria.

In this regard, there is the need to be cognizant of the distinction between a fair and unfair trapping before diving into the rights implicated by unfair entrapment under the Nigerian Constitution.

Fair trapping is a set up where police agents only provide a chance, without any inducement or instigation to an offender in pre existing criminal plot or one who is already under a prior reasonable suspicion to commit the offence.

Unfair trapping is conversely a situation where the accused was incited or instigated to commit the Offence by state officials and there was no prior reasonable suspicion that the accused was engaged in criminal conduct  which should be stopped.

Essentially, Fair trapping is accepted as a means or way of crime detection for the growth of law enforcement in the country, while Unfair trapping is unacceptable and not satisfactory to the natural conduct of the society.  Despite this fact, Unfair trapping is still seen in our society and this is why it is important to take notice of the constitutional rights implicated in this regard.

 

RIGHTS ENTANGLED WITH UNFAIR ENTRAPMENT UNDER THE 1999  CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA.

Clearly, unfair entrapment is actually unfair as it is written. There are constitutional rights breached by the application of Unfair entrapment. They are spelt out in turn:

  1. SECTION 37 : This section protected the right to privacy under the 1999 Constitution of the Federal Republic of Nigeria. This right is also provided in a number of International Laws as well as municipal laws. Examples of the laws that provided for this right are: Article 12 of the Universal Declaration of Human Right ( UDHR), Article 17 of the International Covenant of Civil and Political Rights (ICCPR) amidst others. However it is noteworthy that there is no right to privacy under the African Charter. Right to privacy has been defined variously by different authors as the right to be let alone, the right to determine, ordinarily; to what extent an individual’s thoughts, sentiments, and emotions shall be communicated to others. This right has also been defined by South African Constitutional Court in Bernstein v. Bester NNO as ‘privacy is an individual condition of life characterised by seclusion from the public and publicity.’

A very good instance of when this right has been breached includes, listening to another people’s private conversation, disclosure of private facts that have been acquired in a wrongful manner to the public or other people, entry into a private residence etc.

Subsequently, Unfair entrapment is a breach of the right to privacy guaranteed under section 37 of the Constitution. This is due to the fact that for a person to be unfairly entraped he would have been shadowed and kept under surveillance without his knowledge which a breach of the right. It is also important to state that,  entrapment would most probably also give rise to a criminal charge which exposes the person entrapped to unwarranted and undesirable publicity and societal ridicule.

  1. 2. SECTION 34: This section under the 1999 CFRN provides for the right to dignity of human person. This right protects every individual from being subjected to inhumane treatment such as torture, degrading treatment, slavery and servitude and performing forced or compulsory labour.

 

This right also occupies a pride of places in the international Human Right law as well as Jurisprudence.

Right to dignity is protected under Art. 1 of the Universal Declaration of Human Rights (UDHR) , Art. 10 of the International Covenant of Civil and Political Rights (ICCPR), and in addition, is the provision in Art. 5 of  the African Charter on Human and people’s Right.

Jurisprudentially, showing the importance of the right is in National Coalition for Gay and Lesbian Equality and Another v. The Minister of Justice and Others the Constitutional Court said

“…the right to dignity is a cornerstone of our Constitution.”

Basically, the essentials in the right to dignity is freewill and choice of individuals unimpaired by coercion or undue influence from either private or public actors. Thus, Unfair entrapment involves instigation and coercion of a person to criminal acts with the sole aim of exposing such individual to the terrible sanction of the criminal law. As stated by Akinola Akintayo in his article on constitutional limit on entrapment, he added that, the person so exposed is also liable to societal shame and embarrassment that comes with a criminal conviction. In other words unfair entrapment is a high  violation of Section 34 of the Constitution.

  1. SECTION 36 (3-12): Following the above rights is the right to Fair trial as provided in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999. The Constitution provides for opportunity for an individual whose right may be affected to be given fair hearing in during proceedings. Unfortunately, the judgement of some cases has been unfair. Fair trial is also guaranteed under the article 10, 14, and 17 of the Universal Declaration of Human Rights ( UDHR), International Covenant of Civil and Political Rights ( ICCPR) and the African charter of Human and people’s Rights respectively. Although, it has been said by different writers that, the principle of Fair trial goes beyond the ones stated in the Nigerian Constitution. But, the most important aspect of Fair trial is the right to Fair prosecution.

Unfair entrapment is definitely an unfair method of investigation. Thus, it is a violation of the right to Fair trial for the cause that, the entraped person is not supposed to be prosecuted at all. This has been confirmed in the European Commission on Human Rights decision in Teixera de Castro v.Portugal amidst others.  It should also be noted that, the evidence obtained through an unfair entrapment is illegal and detrimental to the administration of criminal justice of the country, because of the fact that, law enforcement agents who are supposed to put down crimes will themselves become criminals in the course of entrapping.

Comparatively, the Question is ; Is unfair entrapment justifiable under Section 45 of the Constitution?

According to the Jurisprudence of the South African Constitutional Court, the justifiability or otherwise of a law alleged to have unfinged a constitutional right must be measured against, the following five factors;

(i) the nature of the rights in question.

(ii) the importance of the purpose of limitation

(iii) the nature and extent of the limitation

(iv) the relation between the limitation and its purpose

(v) less invasive means to achieve the purpose.

In the examination of the above factors, it is clear that unfair entrapment will not pass Constitutional scrutiny under Section 45 of the Constitution due to the fact that it is not justifiable in an open democratic society as provided by the section.

 

Conclusive Remark

Running from the foregoing, it is of essence to note that entrapment whether fair or unfair is a violation of several constitutional rights provided in chapter IV of the Constitution of the Federal Republic of Nigeria 1999. It is also established that the restriction in section 45 of the Constitution will not affect the fact that unfair entrapment is unfair and is not justified in an open democratic society.

It is therefore my submission that, unfair entrapment is unfair and should be eliminated, for the betterment of the Administration of Criminal Justice in Nigeria.

Sekoni-Dairo Radiyah is a student of College of Law, Crescent University Abeokuta. {[email protected].}

 

Reference:

CONSTITUTIONAL LIMIT OF ENTRAPMENT AS A METHOD OF CRIME  DETECTION IN NIGERIA By Akinola Akintayo available at

“Amos Adamu filmed in FIFA bribery scandal” @ http://uk.klikfc.com/article/178057:/amos-adamu-filmed-in-fifa-bribery￾scandal

https://www.researchgate.net/publication/292343342_The_Law_of_Police_Entrapment_Critical_Evaluation_and_Policy_Analysis

Entrapment as a defense in Criminal law https://www.justia.com/criminal/defenses/entrapment/

http://en.wikipedia.org/wiki/Sting_operation