The Oputa Panel Report
By
Femi Falana
culled from
GUARDIAN, January 8, 2005
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
Editor: Read the full report of
the oputa panel:
Oputa Panel Report
