Falana legal support Oputa
December 28, 2006 | posted by Nigerian Muse (Archives)



Guardian

Saturday January 8, 2005

 

The Oputa Panel Report
By Femi Falana

 

IN the editorial comment titled "Oputa Panel Report: Matters Arising" published on Sunday, December 10, 2004, The Guardian rightly described the decision of the Federal Government to withhold the Report of the Human Rights Violations Investigation Commission (HRVIC) as "one of the most unfortunate actions taken by this administration." The Guardian however, goofed when it agreed with the Government that the recommendations of the HRVIC "cannot be enforced" in the light of the judgment of the Supreme Court in the case of Fawehinmi vs. Babangida (2003) 12 WRN 1 (2003) NWLR (PT 808) 604.

 

As I pointed out earlier, the decision of the Supreme Court in the aforesaid case did not annul the Report of the Oputa Panel in any material particular. Even while holding that "the power to make a general law for the establishment and regulation of tribunals of inquiry in the form of the Tribunals Inquiry Act 1966 is now a residual power under 1999 Constitution belonging to the States. The Supreme Court conceded that "the power resides in the National Assembly" in regard to the Federal Capital Territory.

 

This in effect means that the operations of the HRVIC in Abuja cannot be questioned. Hence, in his own contribution to the leading judgement Uwais CJN held that: "It follows that the National Assembly has the power to enact the Tribunals of Inquiry Act, Cap 447 in so far as it operates in the Federal Capital only. To this limited extent, the Act is an 'existing law', under the provisions of section 315 of the Constitution. However, this does not make the Act operative throughout Nigeria as implied by the 2nd and 3rd appellants by issuing summons to be served outside the Federal Capital Territory, for witnesses to appear before it in Abuja"
 

While stating that the HRVIC could not legally operate throughout the country under the Tribunal of Inquiry Act the Supreme Court held that it was at best set up by "ministerial act to seek and receive information from anyone willing to offer it". And that was exactly what the HRVIC did. Hence it never compelled the attendance of any witness.

 

The claim of The Guardian that the recommendations" cannot be enforced" must have been predicated on the fact that the respected newspaper has not been privileged to study the said recommendations. For instance, the HRVIC recommended that the state-sponsored assassination of Dele Giwa, MKO Abiola and Bagauda Kaltho be re-investigated as there was abundant evidence to show that such cases were covered up by the defunct military junta. The Supreme Court did not and could not have tied the hands of the State from investigating murder and other heinous crimes.

 

It is perhaps germane to state, without any fear of contradiction that the decision to withhold the Report of the HRVIC from public scrutiny was borne out of loss of confidence by Government in the work of the Commission. About 18 months ago, Mr. Musa Eleayoe, the then Minister of State for Justice stated that while government could go ahead to prosecute some cases in court it was more interested in promoting reconciliation. According to him, "the objective of the Panel to seek reconciliation has been achieved to a large extent "(see The Punch of 19/0/03).

 

It is also necessary by Government to point out that the decision not to publish the Report was taken before the judgment of the Supreme Court was delivered on January 31, 2003. It will be recalled that upon the receipt of the report of the Oputa Panel in June 2002, the Government set up an Implementation Committee of eight members headed by Mrs. Elizabeth Pan. The Committee submitted its report within three months of its inauguration. But the consideration of the White Paper on the Report was put off by the Federal Executive Council in October 2002 on the advice of the Attorney General of the Federation, Mr. Kanu Agabi (SAN) who claimed that there were a number of cases pending at the Supreme Court on the subject matter of the Report. According to Professor Gana, the then Minister of Information,"the legal advice from the Attorney General is that, in tune with our tremendous respect for the rule of law, we can't discuss this report when there are substantive cases pending before the Courts on some of the matters that Council would have deliberated on!"


And when the much-awaited decision of the Supreme Court was handed down three months later Government felt relieved and has since then cited the case as a basis for its action! It may interest The Guardian to know that Government has begun a selective implementation of the recommendations of the HRVIC. The recent decision of the Government to convene a National Dialogue as well as the intervention of President Olusegun Obasanjo in the face-off wishing Shell Petroleum Development Corporation are part of the recommendations of the HRVIC.

 

It is my submission that all the 10,000 Nigerians who submitted petitions to the HRVIC and the general public that took special interest in the public hearing conducted by the body are entitled to have its findings and recommendations published and disseminated to them by the Government.

  • Falana is President, West African Bar Association


When Will Past Leaders Pay for Their Iniquities?

Femi Falana
Lagos

FEMI FALANA says it's only a matter of time before the iniquities of their past catch up with the country's past leaders

A fortnight ago THE NEWS magazine published some excerpts from the report of the Human Rights Abuses Investigation Panel headed by the Honourable Mr. Chukwudifu Oputa, a retired Justice of the Supreme Court of Nigeria. In the main, the Tribunal of Inquiry otherwise known as "the Oputa Panel" indicted all military regimes for treason, gross abuse of human rights and subversion of the rule of law. In particular, the Panel recommended that the cases of Mr. Dele Giwa, Chief MKO Abiola, General Shehu Yar'adua and other politically motivated assassinations be re-opened for investigation and prosecution of those who perpetrated such crimes against humanity. Apart from the establishment of a Presidential Fund to compensate victims of such violations the Panel made other far-reaching recommendations to end the culture of impunity in Nigeria.

Since the said publication there has been a renewed demand for the official release of the report and the implementation of the recommendations of the Oputa Panel. In its sharp reaction to the demand the Federal Government has categorically stated that the report would not be released. In justifying the curious position of Government Chief Akin Olujinmi, SAN, the Honourable Attorney-General and Minister of Justice stated that the Supreme Court had declared the Judicial Commission illegal and unconstitutional. (See THE GUARDIAN on SUNDAY of December 5, 2004).

Having critically read the celebrated case of Chief Gani Fawehinmi v General Ibrahim Babangida (2003) 12 WRN 1; (2003) 3 NWLR (PT 808) 604 which was alluded to by the Justice Minister I wish to submit, without any fear of contradiction, that the Supreme Court did not nullify the Oputa Panel. With respect to the constitutional validity of the Tribunal of Inquiry Act (Cap 447) Laws of the Federation of Nigeria, 1990 Uwaifo JSC who read the leading judgment of the Court held, inter alia:

"When it is remembered that the 1999 Constitution has made no provision for tribunals of inquiry as did the 1963 Constitution in Item 39 of the Exclusive List and Item 25 of the Concurrent List, it follows that, to repeat myself on the point, the power to make a general law for the establishment and regulation of tribunals of inquiry in the form of the Tribunals of Inquiry Act 1966 is now a residual power under the 1999 Constitution belonging to the States. However, in regard to the Federal Capital Territory Abuja, the Power resides in the National Assembly."

In his own contribution to the judgment Mohammed Lawal Uwais CJN had this to say:

"It follows that the National Assembly has the power to enact the Tribunals of Inquiry Act, Cap 447 in so far as it operates in the Federal Capital Territory only. To this limited extent, the Act is an 'existing law', under the provisions of section 315 of the Constitution. However, this does not make the Act operative throughout Nigeria as implied by the 2nd and 3rd appellants by issuing summons to be served outside the Federal Capital Territory, for witnesses to appear before it in Abuja."

Since it was held that the Oputa Panel lacked the inquisitorial powers to issue subpoena ad testificandum the summons issued on the Respondents (i.e General Ibrahim Babangida and his two security chiefs: Brigadier-Generals A.K. Togun and Halilu Akilu) were set aside. In saying that the Oputa Panel lacked the power to operate throughout Nigeria the Supreme Court was only concerned with the power of the President to set up a Commission under the Tribunal of Inquiry Act. For the avoidance of doubt the Court NEVER declared the Oputa Panel illegal. In fact, the legality of the Panel was endorsed by the Supreme Court when it held (per Uwaifo JSC) that it was "set up by ordinary ministerial act to seek and receive information from anyone willing to offer it". And that was exactly what the Oputa Panel did by seeking and receiving information on human rights violations from willing witnesses. Hence it never applied coercive powers against those generals who ignored the summons inviting them to defend themselves over allegations of gross human rights abuses leveled against them.

Having carried out its assignment as a body established by "ordinary ministerial act" the legality of the Oputa Panel cannot now be questioned by the Government. Incidentally, when the power of the Attorney-General of the Federation to set up a similar Investigation Panel to investigate murder and sundry offences was challenged by the Appellant in Bamaiyi V Attorney-General of the Federation (2000) 6 NWLR (PT 661) it was held:

"In view of the wide powers of the Honourable Attorney General of the Federation contained not only under Sections 174 and 150(1) of the 1999 Constitution but also under Common Law and inherent powers, I am of the respectful view that the Honourable Attorney General of the Federation has power to set up an SIP if he needed one"

Furthermore, the power of the Federal Government to set up the Oputa Panel is also justified under international law since Nigeria has ratified many international human rights treaties under which human rights violations are required to be investigated from time to time. Apart from the African Charter on Human and Peoples' Rights which has been ratified and domesticated as an Act of Parliament Nigeria has ratified the Universal Declaration of Human Rights, International Convention on Civil and Political Rights, International Convention on Economic, Social and Cultural Rights and signed the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

As a signatory to the aforesaid instruments Nigeria is duty bound to undertake and adopt legislative, executive and judicial measures to give effect to their provisions. Specifically, Article 12 of the Convention Against Torture, and Other Cruel, Inhuman and Degrading Treatment or Punishment provides as follows:

"Each state party shall ensure that its competent authorities proceed to a prompt and impartial investigation whenever there is reasonable ground to believe that an at of torture has been committed in any territory under its jurisdiction"

In Chief Gani Fawehinmi V Abacha (1996) 4 NWLR (PT 475) 710 Musdapher JCA (as he then was) held:

"The member countries - parties to the protocol - recognized that the fundamental human rights stem from the attributes of human beings which justify their international protection and accordingly, by the promulgation of Cap 10, the Nigerian State attempted to fulfil its international obligation. It is an international obligation to which the nation voluntarily entered and agreed to be bound. The arrest and detention of the Appellant on the facts adduced clearly breached the provisions of the Charter and can be enforced under the provisions of the Charter. The contracting States are bound to establish some machinery for the effective protection of the terms of the Charter and when the local procedure is exhausted or when delay will be occasioned, the matter will be taken to the International Commission."

Since the Oputa Panel was a machinery established by Government "for the effective protection of the terms of the Charter" in relation to securing the enforcement of the fundamental rights of the victims of human rights violations its legality is well protected by the African Charter. After a critical review of the relevant international instruments on human rights which have been ratified by Nigeria I cannot but agree with the Oputa Panel when it concluded thus:

"Nigeria's legal obligations to investigate and provide remedies for gross violations of human rights derive from international treaties, which it has ratified or acceded to, from customary international law and from its own domestic law to all of which references have been made in previous chapters".

In the light of the foregoing the position of the Government that the Report of the Oputa has been consigned to the dustbin of history is totally unwarranted. However, if the Obasanjo regime cannot pluck up the courage to release the Report of the Oputa Panel it should be honest enough to say so and stop using the Judiciary to cover up the wanton atrocities of some discredited dictators and their collaborators. But since the Report of the Oputa Panel has not been declared missing like that of Okigbo Panel, I am convinced that it is going to be officially released in future by a Government that is detached from the iniquities of the past.

At that time all those who have been indicted by the Oputa Panel for gross human rights violations will be brought to justice. Their fate may be worse than that of the 88-year old General Augusto Pinochet of Chile who is currently facing trial for torture, disappearances, murder and allied crimes against humanity committed during his 17-year tyrannical rule.

Mr. Falana is President, West African Bar Association


 

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