By Femi Falana
As a sequel to the #EndSARS protests last year, the National Economic Council advised all State Governments to institute judicial commissions of Enquiry to probe allegations of police brutality in the country. Based on the advice the Federal Government and 28 State Governors set up judicial commissions of inquiry to probe sundry allegations of police brutality under the applicable Tribunal of Inquiry Laws. However, a few lawyers deliberately set out to obfuscate the issues in a desperate attempt to cover up the massacre of unarmed protesters in Lagos, Rivers, Edo, Oyo and the Federal Capital Territory.
*FalanaNotwithstanding that some of the lawyers had previously appeared in panels of enquiry set up by State Governors they turned round to question the constitutionality of the judicial commissions, albeit on a very shaky legal wicket. I was compelled to intervene by clarifying the state of the law on the unquestionable validity of the powers of the President and State Governors to institute administrative or judicial commissions of inquiry within their areas of jurisdictional competence under the current political dispensation. Thereafter, the Panels which had been set up by the State Governors commenced public sittings.
Thus, some army
officers represented by a team of lawyers led by a Senior Advocate of Nigeria
appeared before the Doris Okuwobi Judicial Commission of Enquiry, gave oral
testimony and tendered documents which were admitted as exhibits. But shortly
thereafter, the officers and their counsel withdrew further appearance from the
proceedings of the Panel for an undisclosed reason. Based on the fact that many
witnesses later gave detailed evidence of the involvement of soldiers in the
brutal killing of 99 people and secret dumping of their bodies in the various
mortuaries in Lagos State the Panel decided to give the military officers the
opportunity to rebut such damning evidence. But having been misled into
believing that they are not bound by the Lagos State Tribunal of Inquiry Law
the officers ignored the summons. A few months later, the Panel concluded its
assignment and submitted a report which recommended the dismissal and
prosecution of some military and police personnel for engaging in the
extrajudicial killing of unarmed citizens including protesters who were waving
the Nigerian Flag and singing the National Anthem on October 20, 2020.
Even though
President Buhari had said that he would await decisions of the State Governors
on the reports of all the panels of enquiry on police brutality the report of
the Lagos State Judicial Commission has been singled out for excoriation by a
couple of Ministers who have purportedly rejected it on behalf of the Federal
Government. In the highly erroneous belief that the White Paper Committee set
up by Governor Sanwoolu could recommend the annulment of the recommendations of
the Panel both Ministers have launched venomous attacks on the findings of the
body. Curiously, Mr. Festus Keyamo SAN, the Minister of State in the Federal
Ministry of Labour and Productivity has said that the Panel was illegal for
having the temerity to indict military and police officers. But contrary to
such misleading claim the legality of the Panel instituted by the Governor in
accordance with the provisions of the Tribunal of Enquiry Law cannot be
challenged on solid legal grounds.
Indeed, the
controversy surrounding the legality of any Panel set up under the Tribunal of
Enquiry Law of Lagos State was laid to rest as far back as 1987. For the
avoidance of doubt, the validity of the law was upheld by the Court of Appeal
in the case of Williams v Dawodu (1998) 4 NWLR (PT 87) 189 at 212- 213 where
Akpata JCA (as he then was) held inter alia:
“In any event
the Learned Trial Judge was not entitled to enquire into the constitutionality
of the Tribunal of Inquiry Law (CAP 135) Lagos State, even if Section 5(e) and
14(2) thereof appeared to be unconstitutional. The Tribunals of Inquiry Law was
promulgated on December 4, 1968. Thus, when the 1979 Constitution of the
Federal Republic of Nigeria was promulgated as of the 1st October, 1979 the
Tribunal of Inquiry Law qualified as an ‘Existing Law’ under Section 274 of the
same Constitution.”
It is crystal
clear that notwithstanding the enormous powers conferred on the Federal
Government under the 1999 Constitution the power vested in the President of
Nigeria to set up a Judicial Commission of Enquiry is limited to the Federal
Capital Territory. The authority for this submission is the case of Chief Gani
Fawehinmi v. Gen. Ibrahim Babangida (2003) 3 NWLR (PT 808) 604 at 626 where the
Supreme Court (per Ejiwunmi JSC) held that “…the National Assembly has the
power to enact the Tribunal of Inquiry Act, Cap 447 with the limitation that it
operates in the Federal Capital only. To this limited extent, the Act is an ‘existing
law’ by virtue of the provisions of section 315 of the Constitution. It must be
emphasized that though the Tribunals of Inquiry Act is ‘an existing law’ its
application is limited and has no general application. I need to point out that
perhaps this litigation might have been unnecessary if the framers of our
Constitution had borne in mind the necessity of ensuring that the powers of
each component part of the Federation are carefully set out in the
Constitution.”
Since the
Tribunal of Enquiry Act is not a law of general application in the country it
is a dangerous submission to say that only a commission of inquiry instituted
by the President is competent to investigate the violations of human rights or
murder committed by Federal officers in any State of the Federation. In fact,
it is embarrassing that some public officers who had campaigned for the
sovereignty of state governments within the Federation before 2015 have turned
round to question the powers of State Governments to legislate on matters in
the residual list including the Tribunal of Inquiry Laws. It is a matter of
common knowledge that before the #endsars protests last year every State
Government in the country has been settling up administrative and judicial
commissions of inquiry. Some of them include the following:
1. The Justice
Kalu Anya Judicial Panel set up by the Military Governor of Lagos State to
probe the burning of the residence of Fela Anikulapo-Kuti in February 1978. The
Panel blamed the “unknown soldier” for the arson, attempted murder and torture
meted out to the occupants of the house including Fela’s 78-year old mother.
2. The Niki
Tobi Judicial Commission set up by the Plateau State Government in 2003
indicted some police officers for their involvement in the brutal killing of
people in Jos.
3. The Uwaifo
Judicial Commission of Enquiry set up by the Osun State Government in 2010
indicted police officers in gross human rights abuse. The Panel was set up by
Governor Rauf Aregbesola, the current Minister of Interior.
4. The Truth
and Reconciliation Commission headed by the Late Justice Kayode Eso set up by
the Rivers State government in 2015 under Governor Rotimi Amaechi indicted
Federal security agencies for not curbing cultist attacks in the State. Mr.
Amaechi is the current Minister of Transportation.
5. The Garba
Judicial Commission of Enquiry set up by the Kaduna State Government in January
2016 indicted the senior military officers who superintended the illegal
killing of 348 Shiites in Zaria and the secret burial of their bodies in a mass
grave in Mango in Kaduna State. A London based human rights body had dragged
the Federal Government to the International Criminal Court over the refusal to
prosecute the military personnel including a General who were fingered in such
crime against humanity.
It is therefore
submitted that the military and police personnel indicted for murder and allied
offences are liable to be prosecuted by the Attorney-General of Lagos State as
the Attorney-General of the Federation lacks the power to prosecute any person
accused of committing state offences. Not too long ago, the Lagos State
Government prosecuted the military and police officers including a former Chief
of Army Staff and a former Police Commissioner for murder and allied offences
which occurred in the State under the Sani Abacha junta. Vice President
Professor Yemi Osinbajo SAN who led the prosecution team was the then
Attorney-General of Lagos State. On July 18, 2012, the then Lagos state
Governor, Mr. Babatunde Fashola SAN arrested a military Col. Ki Yusuf and Staff
Sergent, A J Adeomi for driving on the Bus Rapid Transit (BRT) lane on Ikorodu
Road contrary to the Lagos State Traffic Law. Mr. Fashola SAN is the current
Minister of Works and Housing.
Realising that
the Federal Government is not competent to prosecute federal officers indicted
for torture and extrajudicial killing of suspects and other citizens the
National Economic Council has directed that the reports of all the #endsars
panels be submitted to the State Attorneys-General. As far as the law is
concerned, the Okuwobi Judicial Commission of Enquiry did not breach any law in
recommending that military and police officers be sanctioned for engaging in
the egregious infringement of human rights of innocent people in Lagos State.
No amount of empty magisterial arrogance of Messrs Lai Mohammed and Festus
Keyamo SAN can be substituted for the findings of the Panel. Therefore, the
military and police officers who are dissatisfied with their indictment may
wish to approach the High Court for legal address. But it is going to be a
tough legal battle since the indicted officers had denied themselves he
opportunity to defend themselves against allegations -of involvement in the
brutal murder of 99 citizens.
Finally, the
late Chief Gani Fawehinmi SAN was arrested and detained by the Ibrahim
Babangida military junta over his campaign for the prosecution of the killers
of a prominent journalist, Mr. Dele Giwa by parcel bomb in Lagos on October 19,
1986. In like manner, Mr. Festus Keyamo SAN was arrested and detained by the
Olusegun Obasanjo administration over his role in the struggle for the trial of
the people believed by him to have been involved in the brutal assassination of
a former Attorney-General of the Federation and Minister of Justice, Chief Bola
Ige SAN on December 23, 2001. The young members of the #endsars movement who
are demanding for the arrest and prosecution of all military and police
officers involved in the massacre of unarmed protesters under the Buhari
administration should be encouraged and supported by all genuine patriotic
forces.
*Falana is a Senior Advocate of Nigeria
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