Oputa Vs the Disobedient General
About two weeks ago, members of the Human Rights
Violation Investigation Commission (HRVIC), led by its
Chairman, Justice Chukwudifu Oputa, paid a visit to
Aso Rock. Since it was set up two years ago it has not
been the regular tradition of this commission to visit
the President. The challenge of the work before them
is enormous enough not to give space for frivolous
visits. In any case, members of the Commission are
serious and well respected persons who would not see
themselves on this assignment to please the President
and curry his favour.
They were in Aso Rock to complain to President
Olusegun Obasanjo that past military rulers, retired
Major General Muhammadu Buhari, General Ibrahim
Babangida and General Abdulsalami Abubakar, in
addition to the current Chief of Army Staff, Major
General Alexander Ogomudia, had refused summons served
on them to appear before their Panel.
Each of the former heads of state had cases of illegal
termination of human lives brought against them by
relations, well wishers or counsels of certain
deceased citizens. For instance, a brother of the late Bartholomew Owoh, a hard drug suspect who was executed
in 1984, took his case before the Commission when it
was sitting at Enugu. Buhari was in power at that
time. His administration was crusading against
indiscipline at that time. In fact, it was about the
only widely accepted positive achievement of that
regime.
Ironically, it was Buhari's Chief of Staff,
Supreme Headquarters, Major General Tunde Idiagbon who
was seen to have carried out that programme.
What an irony! A former military ruler whose regime
was renowned for its fight against indiscipline is now
committing an act of gross indiscipline contemptuous
of a judicial panel investigating wrongful
applications of the law. One would have expected
Buhari, if he truly believed in what he was doing at
that time, to answer the summon and explain the idea
and processes that led to the enactment of a
retroactive law that led to the public execution of
Owoh and two others. His explanation may not be
savoury. It may not satisfy civil and legal
expectations. It may not even assuage outraged public
sensibilities. At least, the public would get to know
why the decision was taken. Buhari's appearance would
have reassured Nigerians that they had a fit and
proper person to conduct a campaign against
indiscipline while he ruled.
Babangida introduced a lot of new things during his
eight-year reign. His administration, according to its
critics, started what is described as state-sponsored
terrorism. At least, it was during that time that a
terrorist act was linked to the state. Respected
journalist, Dele Giwa, was assassinated through a
parcel bomb delivered to his house by persons believed
to have been sent on that mission by Babangida's
security officers. Even though Babangida and his men
have tended to deny involvement the media and
particularly Dele Giwa's counsel, Chief Gani
Fawehinmi, have persisted in the quest to fish out the
murderers. If Babangida is sure that he did not know
anything about the murder and that his administration
had no hand in it he should have found no difficulty
in going before the Commission to say so. If Lagos was
seen as a hazardous place for him to appear, what
about Abuja, which is just about 100 kilometres from
his Minna home?
Abubakar, the last military ruler, was alleged to have
conspired with other local and foreign interests to
have Chief Moshood Abiola poisoned to death. He has
kept quiet about it. Some say silence is golden.
Others say silence is acceptance of accusation. We are
not in any position to know whether Abubakar's silence
is golden or acquiescent. We would have found out if
he had appeared at the Oputa Commission to answer the
question himself.
Of the three cases, that of Abubakar is about the most
sensitive. Given the nature of it there are many
interests that must be putting pressure on Abubakar to
stay put in Minna. Appearing before the panel on this
issue would expose high level secrets about the making
of the current political dispensation. For instance,
any idiot would know that if Abiola had not died the
Nigerian crisis would have continued. It would not
have ended simply because Abacha died. Abacha did not
create the crisis alone. He was an interested party
who, when he climbed into the seat of power, decided
to sustain the annulment and entrench himself in
power. If Abiola had not been put away Abubakar would
not have been allowed to conclude the transition in
peace. He would have had to continue the fight against
the annulment from where Abacha left it. And Abiola's
supporters would have turned their aggression against
him. Two other things would have happened. Abubakar
would have had to resume a wicked military
dictatorship or the hawks within the military would
have toppled him. Either way, Obasanjo would not be
President today. The death of Abiola gave an
opportunity for those who plotted it to look for a
more moderate substitute from Abiola's background and
elect him president to pacify Abiola's supporters
without giving away the Nigerian state to Abiola's
"revolutionary" supporters.
If Abubakar should come to the panel to tell all this,
there would be a good deal of unease, even in
presidential circles. For most former top military
officers, appearing before the Oputa panel is a
difficult proposal in at least, two ways. The first
part of it is the shame and embarrassment of being
told to confess all the evil and dirty things done in
the name of military rule. Those of them who have been
parroting away at the panel are the ones who are
either in government custody or see the revelations as
a way of making their dilemma lighter or exposing
others who were also involved but playing
holier-than-thou.
If Diya were not already a disgraced officer who
needed to salvage his image he would probably have
declined to appear before the panel. And if Ogomudia,
who has not been accused of any direct personal crime,
could brazenly shun the summons to explain the actions
of another army personnel, it follows that Gen. Victor
Malu, his predecessor, could have abstained from
appearing if he wanted. If Lt. General Ishaya Bamaiyi
were not already in detention he would felt at liberty
to stay away from that panel. The same would have applied to Mustapha, Gen. Sabo and a horde of other top army officers who have appeared and testified.
For these ex-army officers and military rulers,
voluntarily standing in the dock of a civil court to
answer grave allegations is something strange and
somewhat infra dignitatem.
Surely, the military has its own court system, separate from the general civil court system. We hear of officers and men being court martialled. Ordinarily,
a military personnel lives all his active professional
life under the military juridical system. He only comes in contact with the general open court when he
commits an offence that goes beyond what the barracks
system can handle.
When the military establishment of a country proceeds
to seize political power, as had frequently been the
case in Nigeria till two years ago, they appropriate
to themselves all powers of the realm necessary to run
their regimes without deterrence. They suspend
portions of the Constitution that stand in their way
and make decrees to suit their purposes. They combine
both the legislative and executive powers, leaving out
the judicial. The idea is that since the judiciary is
there to interpret laws (and not to question them) it
is not necessary to bother seizing judicial powers as
well. In any case, all one needs to do is to
manipulate the appointment of judicial officers and
play games with funding of the judiciary. Added to the
power to make any law the judiciary is rendered easily
malleable and nothing to worry about.
These generals and former heads of state were seasoned
coup plotters and conspirators. Buhari and Babangida
gained national prominence by breaking the law of the
land and overthrowing constitutional authority of
President Shehu Shagari. Abubakar's regime was an
extension of the overthrow of Shagari's regime, though
he saved the day by making himself an instrument for
the restoration of constitutional rule. The point we
make is that these three, particularly Buhari and
Babangida, have never seen the constitution and the
judiciary as anything more than instruments that could
be manipulated by anyone who has the necessary might
to do so. By making a law, giving it a retroactive
and company, Buhari was showing the disdain he had for
the spirit of the law. Funny enough, he never had any
other person shot thereafter, though drug trafficking continued in spite of the execution.
Babangida himself saw the law and the courts as asses
to be ridden by the person who had the power. During
his time he made and cancelled and re-made laws,
especially the ones that had to do with the transition
programme and qualification for contesting political
offices.
The greatest rape of the law that Babangida committed
was the use of Chief Arthur Nzeribe and the late
Justice Bassey Ikpeme to get a midnight injunction
stop the conduct of the June 12 election. An existing
law Babangida had made stipulated that the election
was unstoppable. Professor Humphrey Nwosu, the
National Electoral Commission Chairman, rested on the
assurance that the polls could not be stopped and went
ahead to conduct it. The poll's annulment was carried
out on the alibi that it was held in spite of a court
injunction saying it should be stopped.
The law that Babangida and indeed all the retired top
military officers believe in is the law that is
enforced. In other words, if Oputa means business and
had the power to summon them he should press forward
with the implementation of the summon. If he cannot
enforce the summon, good luck to him. The retired
heads of state do not see the possibility of Oputa
sending law enforcement agents to bring them by force
to the panel.
The implication is that they have placed themselves
above the law. That, I think, was what the Oputa Panel
members went to the President to complain about. It is
not clear to us what the President told them when they complained. I think, however, that the time has come for our military men to submit themselves to the laws
of the land. They should realise that they ruled in
aberration and in breach of the laws of the land. That
dispensation is over. The law has reclaimed its
prominent position over all citizens of Nigeria.
It is ironical that the Chief of Army staff, Ogomudia, who goes around the barracks telling his soldiers to submit to civilian authority, has chosen to fail the test himself at the first opportunity. The answer to court summons is the first test of submission to civil authority. The moment soldiers of elite ranks, whether they are serving or retired, begin to appear before panels such as Oputa's, without flexing muscles, that is the moment that we can say that the military is becoming amenable to civil rule. But as long as top officers continue to hesitate over court summones the impression is given that if anyone pushes too hard they would simply take over power.