THE CASE OF THE EGBEDA 57: What We Know About This State-Sponsored Homophobia

The Egbeda 57 was a case that held the nation’s attention for two years. It started with a regular birthday party held in Kelly Ann Hotel in Egbeda, Lagos, in 2018; a celebration that was well-attended by young men and women – but which was interrupted by a police raid that led to the arrest of everyone the police could round up from the hotel’s environs. These included the dancers who’d been hired for entertainment, the guests of the party, delivery people, hotel guests who were dining in the premises, and even a driver who’d dropped someone off at the hotel. The women arrested were quickly released, apparently to enable the police enforce the narrative that they’d arrested males involved in a “homosexual initiation” – a narrative that the mainstream media picked up and ran with after the Lagos State Police commissioner, Imohimi Edgal, paraded the arrested men as homosexuals during a press conference.

After two years, the case was eventually struck out. But at what cost to the defendants? And what kind of case did the police prosecution make that not only lasted this long but ended up getting struck out? Where did prejudice end and justice begin, if at all?

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After their arrest in the early hours of 26th August, 2018 at Kelly Ann Hotel, Egbeda, the 57 men were detained at Shasha Divisional Police Station, Lagos. They were subsequently transferred to the Anti-Cultism section, State Criminal Investigation and Intelligence Department, Gbagada, Lagos. On 28th August, 2018, police prosecutors brought the men to Court 2, Magistrate Court of Lagos State, Yaba, before His Honour: K.B Ayeye (Mrs.) for remand proceedings.

All the 57 men were represented by lawyers in court. Lawyers from the office of the Attorney General (AG) of Lagos State were also in court. The Attorney General’s lawyers informed the court that they’d been instructed by the AG himself to take over the prosecution of the case and to withdraw the Remand Request filed by the police because the said request was not served at the AG’s office.

The police prosecution, headed by Joseph Eboseremen of the State Criminal Investigation Department, Panti, opposed the application to take over the case on the grounds that the constitution provides that the AG’s power to take over the prosecution of a case can only be exercised by the AG in person by appearing before the court, or by delegating his power to another lawyer from his office through a written instrument.

The police further argued that they needed more time to conclude their ongoing investigation, which was why they brought the request for the 57 men to be remanded in their custody in Panti.

However, the court denied the remand request, instead granting the 57 men bail and remanding them in prison custody at Kirikiri Maximum Security Prison, pending the perfection of their bail.

HOW THE POLICE STARTED PLAYING FAST AND LOOSE WITH THE JUSTICE SYSTEM

There are many layers of politics that played out in court on the 28th of August, 2018. Firstly, the police prosecution knew that the case can only be entertained by the High Court of Lagos State. Section 6 of the SSMPA clearly states that only “the High Court of a State or of the Federal Capital Territory shall have jurisdiction to entertain matters arising from the breach of the provisions of this Act”. Also, Section 261 of the Criminal Law of Lagos State has decriminalized anal sex between consenting adults in Lagos State. The Lagos State Government appears not to be interested in the sexual activities between gay men, as long as it is consensual.  These two factors must have informed the actions of the Attorney General of Lagos State in wanting to exercise his constitutional powers by taking over the case from the police and subsequently withdrawing it from court. The police prosecution must have realized this, which was why they resisted the AG’s maneuver.

Secondly, since the 57 men had stayed in police detention beyond the constitutional limit of 24 hours – or 48 hours in special cases – the police brought the Remand Request asking the court to sanction the detention of the 57 in police custody for an indefinite period, pending the completion of investigations.

It would seem that the police’s plan was to use the Magistrate Court to keep the men detained in the police cell as long as possible, so as to bleed dry the pockets of their families, before eventually bringing a charge against them in a court that has jurisdiction to try the matter. Or perhaps simply forgetting them in the cells, leaving them to languish. This plan was thwarted when the Magistrate denied them their remand request and shifted the custody from Panti to Kirikiri.

Thirdly, attached to the Remand Request filed by the police was a copy of a four-count charge (the offences these men were alleged to have committed). The charges are:

1. conspiracy,
2. belonging to an unlawful society known as “Alora” confraternity,
3. attending meetings of an unlawful society known as “Alora” confraternity, and
4. participating in gay club and directly making public show of same-sex amorous relationship.

However, the copy of the charge sheet served to the defendants did not contain the fourth charge – “participating in gay club and directly making public show of same-sex amorous relationship.” But the charge sheet filed with the court contained it.

The defense team only discovered this discrepancy between the charge sheet that was in the court’s file and the one that was served on the 57 men after applying for a certified true copy of the charge sheet in the court’s file. It would seem as though the police prosecution was trying to sneak-attack the defense, not letting them know the true extent of what the defendants would be getting tried for.

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After the court proceedings of 28th August, 2018, the case kept coming up in the Magistrate Court over and over again. It came up on 4th December, 2018 when the police falsely informed the court that they had filed a charge against the 57 at the Federal High Court.

The case came up again on the 9th of April, 2019, where the police prosecutor informed the court that the case file had been sent to the Director of Public Prosecution (DPP) for legal advice.

It came up again on 2nd July, 2019, where the police prosecutor informed the court that the file sent to the Attorney General of the Federation’s office had been returned, directing that the 57 men be charged to court.

Again, on 9th October, 2019, the police prosecutor informed the court that they had filed a charge at the Federal High Court, but that the 57 men had not yet been arraigned.

The matter came up again on 13th November, 2019. The police prosecutor informed the court that a charge had been filed at the Federal High Court and had been assigned to a judge. The Magistrate again adjourned the case.

It was not until 3rd March, 2020, three months after the 57 took their plea to the charge at the Federal High Court, that the case at the Magistrate Court, Yaba was finally struck out.

HOW THE POLICE CONTINUED PLAYING FAST AND LOOSE WITH THE JUSTICE SYSTEM

Directors of Public Prosecution (DPPs) are legal officers in the offices of the Attorney Generals of the States. The law requires that the police should send case files containing their investigation reports to the DPP for his legal advice as to determine whether the case should proceed to trial or not.

The offences that the 57 men were accused of are all state offences and not federal ones. This is why the right place to send the files for advice was in fact the DPP’s office.

The police prosecutor, Joseph Eboseremen, informed the court on 9th April, 2019 that the file had been sent to the DPP (Lagos State) for his legal advice. Yet, on 2nd July, 2019, the same police prosecutor informed the court that the file sent to the office of the Attorney General of the Federation had returned with a recommendation that a charge be filed at the Federal High Court. He’d never, at any previous date, informed the court that the case file was pending before the Attorney General of the Federation for his advice.

It is clear that what transpired behind the scenes was that the DPP must have advised against filing any charges against the 57. The Attorney General of Lagos State did not see the merit in that case. He clearly disagreed with the police that the 57 men had a case to answer. However, determined to put the men behind bars by all means, the police prosecutor decided to proceed to the Federal High Court, which has no jurisdiction to try the case.

The defense team chose not to challenge this move, due to some strategic litigation thinking on their part.

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At the Federal High Court, a one-count charge was filed against the 57 men before Honourable Justice R.M Aikawa. The offence in the charge was: “making public show of same-sex amorous relationship with each other in hidden places within said Kelly Ann Hotel…”

Below is the timeline of the case as it snaked its way through multiple adjournments at the Federal High Court:

5th November, 2019: The case came up for the first time and was adjourned to 22nd November, 2019 for the arraignment of the 57 defendants.

22nd November, 2019: The case came up for the arraignment of the 57 defendants. However, the 9th, 10th, 14th, 22nd, 26th, 35th, 41st and 57th defendants were absent in court. The police prosecutor applied to withdraw their names from the charge, and the court struck out their names. The prosecutor also applied to amend the charge to reflect the names of the remaining defendants. This was granted. Case was adjourned to 27th November, 2019 for arraignment.

27th November, 2019: The rest of the defendants were present except the 39th Defendant. The police prosecutor applied to strike out the name of the 39th Defendant. The court granted the request. The one-count charge was read to the defendants present and they pled “Not Guilty”. The prosecutor applied that the defendants be remanded in prison custody. The counsel to the defendants moved a bail application filed on behalf of the defendants, which was granted. Case was adjourned to 11th and 12th December, 2019 for trial.

11th December, 2019: All the defendants were in court except for the 43rd defendant. The prosecutor informed the court that his witnesses were not in court. He requested for an adjournment, which was granted.

12th December, 2019: The 4th, 9th, 12th and 47th defendants were not in court. The prosecutor applied that a bench warrant for the arrest of the absent defendants be issued. The court granted this request. Again, the prosecutor informed the court that his witnesses were not in court. He asked for an adjournment. The counsel to the defendants said that he had no objection to this, but that if this happens at the next adjourned date, he’d ask that the matter be struck out. Case was adjourned to 4th February, 2020 for trial.

4th February, 2020: The 18th and 47th defendants are absent. The prosecutor called his first witness (PW1) in an examination that startled everyone, including the judge. During examination-in-chief, the PW1 was merely led to introduce himself as a police officer who got to know the defendants when they were brought to the police station. His testimony in court ENDED THERE! During cross-examination, counsel to the defendants asked the PW1 just one question: whether he had anything to say against the defendants. The PW1 said he had nothing to say against them. End of cross-examination. There was no re-examination of PW1 by the prosecution. Case was adjourned to 5th February, 2020 for continuation of trial.

5th February, 2020: The 4th, 8th, 18th, 24th, 31st, 33rd, 38th, 43rd and 44th defendants were absent. The prosecutor told the court that his next witness was not in court, asking for an adjournment. The counsel for the defendants objected, urging the court to dismiss the case for lack of diligent prosecution on the part of the police prosecutor. The court denied the request. Case was adjourned to 3rd March, 2020 for continuation of trial.

3rd March, 2020: The 14th, 18th, 31st, 42nd and 44th defendants were absent. The prosecutor informed the court that his second witness (PW2) was in court. The PW2 was led to identify himself as the DPO of Shasha police division. He testified on how he and his team were instructed to go raid the hotel and arrest the defendants. Under cross-examination, he was asked whether he arrested any females during the raid. He denied arresting any females at the venue. Case was adjourned to 2nd April, 2020 for continuation of trial, with the court ordering the prosecutor to bring all his witnesses on that day. (Meanwhile, the pending case at the Magistrate Court was struck out earlier on the same day, March 3rd).

COVID 19 happened. Case came up on 27th October, 2020. Most of the defendants are present. This time, the prosecutor was absent from court without notifying the court or defense counsel. His witnesses were not in court either. Counsel for the defense applied to have the case dismissed permanently, having regards to the defendants and the conduct of the prosecutor in the case. And the court struck out the case.

A MESSY JUSTICE SYSTEM

The prosecution counsel who did the examination-in-chief of the PW1 was actually a junior counsel. The senior police lawyer, Joseph Eboseremen, was not in court that day. This junior counsel clearly did not do the job well; when he said he had no further questions to ask the PW1 after only establishing that the PW1 knew the defendants, the judge was visibly annoyed. The judge kept on asking him, “Are you sure you have no further questions for this witness?” From the judge’s demeanor, it was easy to see that he thought the 57 men were guilty of something that he simply needed enough of the case proven for him to nail all of them. In fact, during the course of the trial, the judge once revealed his bias by expressing an opinion – that he wouldn’t mind resolving the case by ordering that the 57 men be sent to and detained in a mental health institution.

The defendants that kept violating their bail conditions by absenting themselves from court were a constant worry for the defense team. The police prosecutor’s plan was to strike their names off the original charge and then get them rearrested and arraigned in court separately. This was supposed to have a destabilizing effect on the defense team, considering the extra expense in terms of money and time this would have inflicted on the defense team (the lead counsel was coming all the way from Abuja for the case). Fortunately, the prosecution had no evidence to even prosecute the original charge, let alone prosecute any subsequent charge they were going to come up with against the rearrested defendants.

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And so, after two years of being victims of state-sponsored homophobia with no case to prove other than a determination to service their prejudice, the case against the Egbeda 57 was struck out and the men were free to go.

But at what cost?

Due to the very public nature of this case, which started with them getting paraded as homosexuals – a move that effectively robbed the 57 of their right to privacy and right to fair hearing, especially in the court of public opinion – these men suffered losses that include loss of employment, evictions from their homes, discrimination by family, friends, neighbours and coworkers, mental health struggles and suicide tendencies. While the police struggled dishonorably and illegally to make a case against them, their lives, livelihoods and reputations of these men –and by extension, their loved ones – were being irreparably damaged.

Such is the nature of homophobia, especially when it is legitimized by the state. Many Nigerians embraced the passing of the Same-Sex Marriage Prohibition Act because they figured it was a way to check the LGBTQI community; in the end however, all it does is destroy lives, whether queer or not.

In the words of Emma Lazarus: “Until we are all free, we are none of us free.”