Re: There Were Unknown Soldiers Before Unknown Gunmen

 By Femi Falana

In concluding his brilliant article on “Unknown Soldiers Before Unknown Gunmen”, Owei Lakemfa referred to the verdict of a tribunal which claimed that the Ransome-Kuti’s residence was set ablaze by an “unknown soldier”.

*Falana 

The Supreme Court of Nigeria questioned the verdict for blaming the “unknown soldier” in place of the State whose soldiers had perpetrated the crime. Thus, in the leading judgement of the apex court in the celebrated case of Chief Funmilayo Ransome-Kuti & Ors v Attorney-General of the Federation (1985) 1 NWLR (Pt 6) 124, Kayode Eso JSC said: “This immunity attaching to the State in this country is sad.” The learned trial judge who took evidence described the scene that day as “hell let loose” and this he had set out in his analysis of the evidence.

He said: “It is beyond dispute, of course, that many soldiers, a witness gave the figure of 1,000, surrounded the entire buildings, hurling stones and broken bottles. Many of them got inside the building, set fire to it as well as the generator in the compound. This is bad. It should not be right that once the actual perpetrators could not be determined, the State, whose soldiers these perpetrators are could not be made liable.” But then as I said the immunity of the State persisted at the time of the incident.

As it  is the 1963 Constitution that governs this case I have made special study of the provisions that I believe may be applied to exclude this immunity. S.22 is the closest but then it deals only with determination of rights and talks about fair hearing being within a reasonable time. The complaint here is not that the appellants did not have fair hearing.

No provision has helped. Happily for the country, but this does not affect the instant case, section 6 of the 1979 Constitution which vests the judicial powers of the country in the court has to my mind removed this anachronism.

Even though the Ransome-Kuti family lost the case on the technical ground of the “King  Can Do No Wrong”, the Nigerian people gained from the case. It was because the Supreme Court held that the State can be sued for human rights abuse that the Federal Government is regularly dragged before the Court for the extrajudicial killing, torture and brutalisation of citizens carried out by known and unknown soldiers. As far as the law is concerned, unknown soldiers are agents of the State!

*Falana, SAN, a human rights lawyer, wrote from Lagos