A rose for Ogoni 13

A rose for Ogoni 13

The Justice Oputa Commission on Human Rights Violations can rightly lay claim to a major trophy for its efforts at truth and reconciliation, as the parties to the fratricide in Ogoniland last week initialed a Memorandum of Understanding (MOU) to bury the hatchet that had been swinging malevolently, cutting down Ogoni sons and daughters. The accord was between the Movement for the Survival of Ogoni People (MOSOP) and the families of the Ogoni Four whose murder in May 1994 led to the trial, conviction and hanging of nine other Ogonis, among them Ken Saro-Wiwa, the well-known playwright. No other criminal trial and conviction in Nigeria had provoked so much local and international outrage. Nigeria became a pariah.

By the time the Ogoni Nine were executed in November 1995, Gen. Sani Abacha and his murderous henchmen were just then emerging from their lair and transmuting into rampaging demons that would unleash a wave of arson and point-blank assassinations. The key fall-out of the execution, therefore, was to accelerate the pace of opposition to military rule in general, and Abachas junta in particular. In this, the domestic forces received formidable support from a world suddenly roused to the gory spectacle of an otherwise boisterous nation being decapitated by the cowboys of its own military class that had lost its soldierly bearing.

But in holding Saro-Wiwa aloft as the anti-military/Abacha campaign banner, there was exposed a paradoxical sense of justice. If the Ogoni Nine were, to use the phraseology of protest, "judicially murdered", should justice not at any rate have been done by bringing to book the murderers of the Ogoni Four? The more strident the Ogoni Nine advocates were in denouncing the hangings, the more pronounced the silence was on justice for the families of the Ogoni Four. In fact, as the opinion mafia predominated, it became heretical for anyone to speak up on behalf of the Ogoni Four. Those who were courageous enough to commit the heresy were promptly branded apologists of the Abacha regime and such opinion was immediately drowned out by the deluge of pro-Ogoni Nine protestations. Indeed, so forsaken were the Ogoni Four, that it could be detected from the sub-text of the Saro-Wiwa campaigners that the Ogoni Four, who had met with brutal deaths, were somehow responsible for the fate of the Ogoni Nine, a bizarre culpability that further injured the memories of the Ogoni Four. It was as if, had the Ogoni Four not existed, Saro-Wiwa would have been alive: a weird allocation of premium on our respective lives.

The execution of Ken Saro-Wiwa channeled vast and furious energies into the declamation against the jurisprudence of military rule. Those energies were equally mobilised in the global reactions to the kangaroo judgements that were so cavalierly handed down in the bewildering cases of the phantom coup of 1995 and of the Weeping Generals putsch two years later. In the case of the Ogoni Nine, the crux of the global fury was that they had not received a fair and just trial, having been arraigned and convicted under the provisions of the Civil Disturbances (Special Tribunal) Decree of 1987. The decree contained an ouster clause and there was effectively no appeal as the confirming authority, the Provisional Ruling Council, did not have as one of its habits the entertainment of arguments by lawyers on behalf of clients sentenced by a tribunal.

Yet, if the Ogoni Nine, or any other person(s) had been tried in the regular courts, with right of appeal fully exercised, some persons would nevertheless have been found guilty. The Ogoni Four did not commit suicide; if they did, somebody must have assisted them, considering the state of their bodies. To assist a suicide is a criminal offence: a felony. On the contrary, the Ogoni Four, stigmatised as vultures (which suggested that they were collaborating with agents of environmental degradation as a result of oil exploration activities in Ogoniland), were massacred. The Criminal Code is clear on murder, so also is it clear on classes of offenders (Section 7). Thus, it would have been immaterial whether one took active part in the killing or not. Counselling or procuring would have been similarly weighted to ground conviction. Therefore, after the Giokoo murder of the Ogoni Four in May 1994, more blood was sure to flow as a result of judicial intervention. The greater tragedy was that the Ogoni Four and Ogoni Nine were martyred in the course of employing differing strategies for the greater benefit of their community. Which is why the significance of the MOU signed last week cannot be lost on those who had beheld the self-immolation by the Ogonis. Last week was a moment of triumph and the enactment, hopefully, of a new beginning.

Undeniably, one of the reasons for the umbrage at the execution of the Ogoni Nine was the palpable fear that if it could happen to Ken Saro-Wiwa, it could happen to anyone else. The pity, the instinct for self-preservation, and indignation drove many to beat the drums harder to march the military out of the scene. After all, it was felt, under democracy, the full processes of the courts would have been exhausted with just a chance of a pardon by a sensitive executive.

Now, we can bask in the euphoria of our presidential democracy. But the objectionable aspect of military jurisprudence continues to thrive. That is the grave import of the decision reached by the Supreme Court on May 28, 1999, barely 24 hours before the military bowed out. The Guardian Newspapers Limited and others had sued the Federal Government over the proscription of The Guardian in 1994. The case turned on the constitutionality and, therefore, validity of The Guardian Newspapers and African Guardian Weekly Magazine (Proscription and Prohibition from Circulation) Decree 8 of 1994. At the Court of Appeal, the decree was described as "imperious", "awesome in content", "frightening" and was not an exercise of legislative power within the intendment of the Constitution (Suspension and Modification) Decree 107 of 1993. The proscription decree was thus declared invalid.

The Federal Military Government appealed to the Supreme Court. Arguments were first heard on October 26, 1998 but were re-heard on March 1, 1999, following observations by Chief F. R. A. Williams (for The Guardian) that the five Justices who first heard the arguments fell short of the seven Justices stipulated by the Constitution for the hearing of such cases. On May 28, 1999, among other decisions, the seven Justices of the Supreme Court unanimously held that the proscription decree was valid. His Lordship Abubakar Bashir Wali JSC held: "S.6(1), (2), (3), (5) and (6) of Decree No. 107 of 1993 vests executive authority of the Federal Republic of Nigeria in the Head of State, Commander-in-Chief of the Armed Forces and can exercise such powers whether directly or through persons or authorities subordinate to him and that the question whether or not he has consulted the Provisional Ruling Council with respect to any exercise of such executive powers shall not be enquired into in any court of law." So, Abacha could have unilaterally ordered the execution of the Ogoni Nine.

Therein lies the greater lesson. Our democracy must survive. The alternative could be worse. Abacha used horsewhips; someone else might use scorpions. At the earliest opportunity, the Supreme Court should be respectfully urged to review its earlier decisions on ouster clauses and to reverse itself.