By Mohammed Adamu
-a bird’s eye view..
PROLOGUE
Sequel to my recent piece titled: ‘Tinubu And The ABC Of Dual Citizenship’, bellow is another ‘ABC OF’ which I wrote some 8 years ago (02/16/15) on the offense of ‘Perjury’. Now that Tinubu, like Buhari, is on the menu for perjury I thought I should serve you a rejigged version of that piece so that you have a bird’s eye view of this species of offense under Criminal Law.
The piece answers the questions: when can a person be said to have committed perjury? Is it merely when he ‘lies’ under oath or only when there’s proof that he actually ‘knows’ and ‘believes’ that he is lying under oath? Or is it also possible, that a person who has told the truth under oath may still, by evidence, be found guilty of perjury?
These were some of the questions I set out to answer 8 years ago when President Buhari was accused of perjury after he had claimed under oath, that his original Secondary School certificate was with his former employers, the Military. The latter publicly denied it was in their custody. The question then arose whether Buhari had perjured or not.
Caveat: this piece, like the one on ‘Dual Citizenship’, is strictly for the edification of legal and judicial knowledge. It is not for the glorification of politically-motivated ignorance! If you desire to know the jurisprudence behind the law of perjury and to know especially what usually animates the minds of judges when they are seized of such issues, happy reading? If not then, just wakaa!
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WHAT IS ‘PERJURY’?
Black’s Law Dictionary’ defines perjury as: “The act or an instance of a person deliberately making material false or misleading statement while under oath”. It is also defined in relation to a person lawfully sworn who ‘willfully makes a material statement which he (either) knows to be false or (he) does not believe to be true’.
Meaning that a person under oath can ‘willfully’ make a statement which (though TRUE IN ALL MATERIAL SENSE) may, by evidence, be proved that at the time he was making it, he DID NOT BELIEVE IT TO BE TRUE; or that he ACTUALLY knew and believed it to be FALSE.
INTENTION TO LIE
A person under oath who tells a manifest ‘TRUTH’ but with a proven intention to pass off a LIE, will be guilty of perjury the same way that he would be if the statement he makes is actually FALSE and he is deliberately deposing to pass it as TRUE! Meaning that in law, even the truth that you tell with a proven intention to deceitfully pass a lie, is reckoned as perjury.
Or as the English would say, ‘the truth you tell with bad intent, beats all the lies that you can invent’! It is almost the moral apposit of the amoral saying, that ‘one does not have to be truthful, to be virtuous’. That’s absolutely not true! One has to be truthful to be virtuous; else the chariot of virtue becomes the flier of the hardwares of falsehood!
Thus on the face of it, yes, it amounts to perjury merely when what has been sworn to is proved in evidence to be false. But to ground the offense of perjury, the vital element of ‘intention’ (mens rea), must be proved beyond reasonable doubt before a person is said to be guilty of the misdemeanor of perjury, punishable by 7 years imprisonment with or without the option of fine.
Truth is, proving the offence of ‘perjury’ is almost like proving ‘penetration’ in the offense of rape. It has to not only be proved beyond reasonable doubt that the person made a statement under oath which is FALSE, it has to also be proved beyond reasonable doubt that he knew and believed it to be FALSE at the time he was making it. Or if the statement is actually TRUE, then it must be proved again beyond reasonable doubt that he did not believe it to be TRUE at the time he was taking the oath -he only swore claiming it to be true when actually even he did not believe it to be TRUE.
MATERIALITY
Also to prove the offense of perjury, the said ‘statement’ must be ‘MATERIAL’ or ‘relevant’ to the issue in the proceeding. Or else the offense of perjury is not proved! In ‘R versus Baker’ for example, an accused person charged with selling beer without a license, denied ON OATH that he had in a previous case, instructed his solicitor to plead guilty to a similar charge. And the court, having found that he actually did, held that the previous sworn denial was material to the current proceeding because it affected his credibility as a witness in it
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But if a candidate for election affirms under oath that he possesses a qualifying Certificate, the original of which ‘to the best of his knowledge’ was in the custody of his former employers, a denial by the employers alone will not be sufficient to prove that the claimant perjured.
Because the question will then arise: which of the claims in the oath is ‘materially relevant’ in a proceeding for perjury? Is it the claim (falsely or mistakenly) attributing custody of the certificate to his employers? Or is it the main claim (namely the very subject matter of the case) that he does or does not have a certificate at all in the first place!
In truth, that his former employers denied custody of his certificate could not have been conclusive proof that he never had a certificate in the first place. It could only have meant that he either had but could not prove it’s whereabouts or that he did not have any, and that was why it could not be found. Attributing custody of the cert to former employers who deny that it is in their custody, is ‘materially irrelevant’ in a proceeding in which it is the person’s ‘qualification’ to contest that is the issue and not actually who had or did not have custody of his certificate.
What is actually material to the proceeding is proving or disproving the claim that there does exist a ‘certificate’ even though it has not been produced or conclusive evidence given that it could NEVER be produced. Reason being that it is the proof of the ‘existence’ of a certificate that is the qualifying criterion for the contest, and not actually the place of its custody!
If it is proved that he has a certificate (wherever it may be in the material time), it then obviates the need to have to prove or disprove that he was ‘lying’ about the place of the original’s custody. Conversely if it is proved that there was neither a certificate anywhere nor any basis for believing that there should be a certificate somewhere, then a ground for perjury can exists.
INADVERTENCE
And so mere “inadvertence” will not prove that a person lied under oath, who, when he was making the oath believed wholeheartedly that he was telling the truth (even if it turns out not to be true, or it turns out to be false. Herein lies the crux of of the offense of perjury. Mere inadvertence’ in willfully believing a thing to be true which turns out not to be, will not find an accused guilty of perjury.
If Buhari was misled ‘inadvertently’, by a general belief held mostly amongst former compatriots of his that all certificates of serving and retired personnel were in the custody of their former employers, he would not have perjured for the reason that he willfully affirmed on such inadvertent belief.
CORROBORATION
No accused person can be convicted of perjury or any kindred offences unless there is corroborative evidence proving that the falsity of a statement made by him is borne out of deliberate intention to misrepresent. Example is where there is evidence proving that a person deposed to an affidavit affirming a particular state of affairs but which, before the affirmation, he had believed differently.
In ‘R v Hook’, the accused had sworn that he did not see anyone leaving a certain house after 11 o’clock on a particular night. However 3 witnesses gave evidence to the effect that the accused had told them (before the oath) that he had seen 4 men leave the house after 11 o’clock on the night in question. And other witnesses also proved that 4 men did leave the house at that material time.
If we concede, without admitting, that Buhari’s original certificate truly was not with his former employers (but which he had affirmed it was), it must then be proved by corroborative evidence that he knew this state of affairs not to be true at the time he was swearing to assert that it as true, before he can be said to be guilty of the offense of ‘perjury’!
LAST WORD
Candidate Buhari will not be guilty of perjury for the mere ‘inadvertence’ in believing, to the best of his knowledge, that his original certificate was with his former employer; even if, in actual fact, it was not!
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POSTSCRIPT
After reading this you should be able to answer the question yourself, whether a person who is constitutionally permitted to have ‘dual citizenship’, (and who presumably does have), may be guilty of perjury merely because in deposing to an affidavit he had, advertently or inadvertently, admitted only his citizenship ‘by birth’, omitting or neglecting to admit the other.
Or put another way, you should ask yourself the question: will an aspirant who is required, under oath, to furnish his academic qualifications, be guilty of perjury if, having several such certificates, he opts only to admit the most minimum (namely School Certificate) lawfully required for his purpose? Should he be guilty of ‘perjury’ merely because he ‘neglects’, ‘forgets’, ‘ignores’ or maybe even deliberately ‘omits’ to admit his several other credentials?
