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Guardian

Saturday January
8, 2005

 


The Oputa Panel Report
By Femi Falana

 


I
N 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?


This Day
(Lagos)

OPINION
December 20, 2004 

Femi Falana
Lagos

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:

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

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:

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:

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

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:

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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