The Saro wiwa family deserve to be heard

The Saro-Wiwa family deserve to be heard

I was alarmed when I saw the Oputa Commission on television refused to hear the petition of the Saro-Wiwa family on the basis that it amounted to an appeal against the judgment of the Tribunal that tried the Ogoni 9. I have great respect for the members of the Oputa Commission and in particular the Hon. Justice Chukwudifu Oputa who was my fathers classmate at Christ the King College (CKC) Onitsha and they subsequently remained great friends and professional colleagues. The Hon. Justice Oputa has maintained this close relationship with our family even after the demise of our old man. Just two (2) years ago, we were able to persuade him to leave the serenity of his retirement in Oguta to come to our chaotic city of Lagos to deliver a paper at the launch of the biography of our father, titled "The Path of Justice Chike Idigbe" and written by the very able Lawyer/Journalist and now apprentice politician, Mr. Ekong Sampson.

It follows that I would not lightly dissent from the position taken by the very revered Justice Oputa. It must be for good cause that I have the temerity to challenge the Oputa Commission. And the reason is simple, I believe a grave miscarriage of justice is about to occur and I feel an overwhelming obligation to assist in averting such a calamity.

If I got the kernel of the decision of the Oputa Commission correct, it seems to be based on the following arguments:-

1. That the commission cannot grant a simple declaratory relief because such a relief will be useless as the commission cannot enforce it.

2. That the commission cannot sit as a Court of Appeal over the decision of the Ogoni 9 Tribunal because the instrument appointing the commission gave it no such power.

To determine whether the commission was right in its decision that it had no power to review the judgment of the Ogoni 9 Tribunal, we would have to look at the instrument setting up the commission as well as other laws of the land such as the 1999 Constitution.

The powers of the commission are as stated in its amended Terms of Reference as follows:-

(a) ascertain or establish the causes, nature and extent of all gross violations of human rights committed in Nigeria between the 15th day of January 1966 and the 28th day of May, 1999;

(b) identify the person or persons, authorities, institutions or organisations which may be held accountable for such gross violations of human rights and determine the motives for the violations or abuses, the victims and circumstances thereof and the effect on such victims and the society generally of the atrocities;

(c) determine whether such abuses or violations were the product of deliberate state policy or the policy of any of its organs or institutions or whether they arose from abuses by the state officials of their office or whether they were the acts of any political organisations, liberation movements or other groups or individuals;

(d) recommend measures which may be taken whether judicial, administrative, legislative or institutional to redress the injustices of the past and prevent or forestall future violations or abuses of human rights;

(e) make any other recommendations which are in the opinion of the judicial commission, in the public interest and are necessitated by the evidence;

(f) to receive any legitimate financial or other assistance from whatever source which may aid and facilitate the realisation of its objectives."

Having copiously stated the Terms of Reference of the Commission above, I wish to state that by virtue of items a, b, c, & d, of the said terms, the commission fell into misconception of their powers as it is within their powers to hear the petition of Saro-Wiwa family "to determine whether such abuses or violations were the product of deliberate state policy or any of its organ ò" and to "determine the motives of the violations or abuses, the victims and the circumstances thereof." The commission has wide powers to ascertain or establish the causes, nature and extent of gross violation of human rights. Also, it has a duty to identify the person, authorities, institutions or organisations that may be held accountable. In addition, it can recommend measures whether judicial, administrative, legislative or institutional to redress injustices of the past.

Looking at these powers, duties and functions of the commission, can it seriously be contended that the Tribunal on the Ogoni 9 is above the commission or that considering a case either determined by the Tribunal will constitute the commission into an appeal court over the Tribunal?

It seems to me that the Tribunal on Ogoni 9 at best was an institution or agency of government raised on an ad-hoc basis to dispense justice. The question whether that institution violated the human rights of a citizen is clearly within the purview of the commissions powers. Also, powers of the commission to make recommendation are very wide indeed. Apart from judicial and legislative measures, the commission can recommend administrative or institutional measures. Even if judicially the commission cannot upturn or review the judgment of the Ogoni 9 Tribunal, it is submitted that it can, after hearing the petition, recommend administrative or institutional measure to either assuage any injustices discovered or prevent its recurrence in future.

Now, Section 175(1) of the 1999 Constitution provides alia as follows:-

"The President may:-

(a) grant any person concerned with or convicted of any offence created by an Act of the National Assembly a pardon, either free or subject to lawful conditions." (Emphasis supplied).

This section empowers the president with the prerogative of mercy. Such prerogative is exercisable by the president where for instance, there is new evidence not available at the trial, which exonerated the accused person. This can be as a result of new technology. Also, the prerogative can be exercised where due to a structural defect in the judicial process, injustice has occurred and the conscience of the people would not allow such injustice to persist.

It is respectfully submitted that the facts in the petition before the Oputa Commission indicate grounds for grant of the prerogative of mercy. It must be borne in mind always that the Oputa commission is a fact-finding mission. Like all fact finding missions, it can discover or stumble on facts that can exonerate the guilt of a convict.

If the Oputa Commission considered the petition of the Saro-Wiwa family and found as a fact that the Ogoni 9 were executed before the period of 30 days allowed them to appeal, would that amount to breach of their constitutional right to fair hearing? Again, what if it found that condition precedent for setting up of the Tribunal was not met, e.g. absence of Special Investigation Panel? If so, was the judicial process under which they were tried and executed so faulted, that there was a denial of justice? If all the above questions are answered in the positive, can the panel recommend to the president for a consideration of state pardon for the Ogoni 9 after consultation with the Council of State in accordance with the 1999 Constitution? Will such an action not amount to an administrative measure to assuage the perceived injustice? Further, can the commission not recommend an institution change in the form of abolition of ad-hoc judicial process as was used in the Ogoni 9 Tribunal situation?

Another argument for the refusal of the petition by the Commission has been that the claims were for mere declaratory relieves and as such the commission cannot grant such reliefs as it will be useless.

I have no doubt in my mind that the Oputa Commission has the power to hear the petition even if for only declaration reliefs. It is also our contention that the word "determine" has been defined to mean, "to decide an issue or appeal" (See Osbornes Concise Law Dictionary, 7th Edition (1983) by Roger Bird p. 116). This means that the Commission of Inquiry has the power to decide the petition of the Saro-Wiwa Family under its terms reference no. (c) above, which gives it power to determine whether such abuses or violations were the product of deliberate state policy or policy of any of its organs or institutions. Surely, if the commission makes the declaration sought, it is for the petitioners to seek enforcement of it through another process such as, the prerogative of mercy process discussed above.

It would be recalled that this issue arose in the case of Shitta-Bey V. Federal Public Service Commission) (1981) 12 N.S.C.C 19. It is now beyond doubt that simple declaratory reliefs can be granted and it is left for the petitioner to decide what to do with the declaration. Most times, the person will head back to court for other reliefs such as, mandamus or injunction, that will actualise the declarations in his favour.

Even if the complaint of the petitioner was not a technical one based on principles of natural justice, but one based on the facts, it is still my humble submission that the Oputa Commission is obliged to consider the petition. Again, I reiterate that the Panel is a fact finding one. If the commission looks at the facts and finds that there were new facts which if they had been available to the Tribunal, no reasonable Tribunal would not have convicted or which shows clearly that the convictions were wrong, then the Commission would be bound to make the declarations sought or make recommendations as to prerogative of mercy.

Lastly, it may be argued that since the convicts have been killed, the commission going into the matter will serve no useful purpose. It would seem that any such argument is basically fallacious. The issue here is the conviction and not whether the convicts have been killed. Whereas the killing, if wrongful, should attract some compensation, as was decided in the case of Adigun V. A.G., Oyo State (1987) 1 N.W.L.R 678, the point, really, is that a conviction is a stain forever. It is a legal and political stain on the Saro-Wiwa family. Ken Saro-Wiwa cannot, for instance, receive any national honour legally, because even in death he is a convict. It is therefore, legally and politically expedient that the issue is considered by the commission, so as to finally resolves this matter.

I have endeavoured to refrain from commenting on the merits of the petition so as not to jeopardise the matter if the commission decides to hear it on the merit.

I call on the lawyers to the commission to immediately file papers for reconsideration of this petition and they should in future be more alive to their duty. They are there to guide the commission, so it does not fall into grave error such as the one under discussion.

It should be noted that there is no appeal against any orders of the commission. It follows that the commission should endeavour to do substantial justice (for which Justice Oputa is otherwise known) rather than technical justice. They should be guided by the principles of substantial justice enunciated in the case of Bucknor-Maclean & Anor V. Inlanks Ltd. (1980) 12 N.S.C.C. 232. To do otherwise will result in loss of public trust, faith and confidence in the commission. I commend the Oputa Commission for their recent breakthrough with the signing of a Memorandum of Understanding on the basis of the Ogoni 13 concept. I, however, contend that concrete legal steps, in the line of the theme of this article, must be undertaken to give the actual benefits of reconciliation to the Ogoni people, so as to either assuage any injustices discovered or prevent its recurrence in future.

Mr. Idigbe is a Senior Advocate of Nigeria and sent this in from Lagos