The Oputa Panel Report

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