Why the Generals may not be tamed by the Oputa Panel
By
"Direct evidence cannot be compared with hearsay or speculative guesswork". Justice Nnameka-Agu
IF Judges have patience, that of retired Justice Chukwudifu Oputa, appeared legendary until Tuesday, October 3, 2001, when it finally snapped on the controversial question of whether three former Heads of States, Generals Muhammadu Buhari, Ibrahim Badamasi Babangida and Abdulsalami Abubakar and a few others, should physically appear before the Human Rights Commission. Oputa, the commission's chairman, virtually threw overboard the kid gloves he had used in handling the matter and threatened the Generals with arrest and imprisonment.
"Discretion is usually the better part of valour. The commission is on reconciliation process and one does not reconcile under duress. But the commission may ultimately be left with no other option except invoke its power under the Act", Oputa declared in the landmark ruling.
Right from the opening sitting of the commission in Abuja, through the long hours, days and weeks of proceedings in Lagos, Enugu, Port Harcourt, Kano and back in Abuja, the popularly called "Socrates of the Bench", had behaved like the Pope, waiting out the mass. Yet, even the Pope does get impatient, and succumb to human fraity. That is exactly what happened on October 3. Oputa's patience was stretched to the limit by the rigmarole of Generals Babangida, Buhari and Abubakar.
All manner of excuses, some flimsy and ridiculous in the extreme, have been put forward, on why the respondents would not honour due summons to appear before the panel. They include:
Therefore, to prevent appearance, Babangida in particular, has moved from the High Court to the Appeal Court, which ironically, he wanted to circumvent by praying it to transfer the case referred to it, to the Supreme Court, without first pronouncing on it, and thus open itself to irrelevance in the chain of appelate jurisdiction.
The eventual snap of Oputa's patience came in the wake of the Generals' insistence that they should be represented by proxy, by their laywers who could cross-examine the witnesses Babangida and company have strenuously strove to avoid, face to face in the witness box. To this Oputa said, No!
Referring to Section 5 of the act establishing the commission, said: "The summons under Section 5(c0 of the Act is issued and directed to witnesses being summoned and not his counsel. Secondly, counsel cannot qualify responses by witneeses. In any case, by praying to be represented by proxy, the Generals were urging the commission to entertain what retired Justice Phillip Nnaemeka-Agu once referred to as "hearsay and speculative guesswork", which cannot be compared with "direct evidence" by the Generals.
What will their proxies be telling the commission? Is it about tenures they did not do? Office they did not occupy? Or policies and actions they did not take? These and others answers are best supplied only by the very actors, in this case, Babangida, Buhari Abubakar, Danjuma, Akilu and Togun, who all had refused to honour their summons thus far.
Oputa put the Generals' attitude down as perhaps motivated by a feeling of pride, or arrogance or fear, adding that, "dictators govern an unwilling citizenry by fear". But according to him, "by setting up the Human Right Violation Investigation Commission, fear changed side. The erstwhile dictators are now afraid of exposure, afraid to appear and give evidence relating to their period in office".
If the Generals passed the test of pride, arrogance or fear, then their action should be located under the military's feeling of impunity as above law and punishment. And Oputa told them so, regretting, however, that their superior carriage destroys confidence of the people on authority and role of the state; makes healing and social integration, rehabilitation and reconciliation difficult, if not impossible; and represents triumph of might over right.
On the question of legality of the commission, Oputa said the enabling law was the Tribunal of Inquiry Act Cap 447, Laws of Federal Republic of Nigeria, which, he noted, was the Magna Carta from where the commission derives its jurisdiction and powers that could be invoked to ensure compliance to its directives.
The Generals, especially Babangida, through his lawyer, Chief Clement Akpamgbo (SAN), have recourse to Section 308 of the 1999 Constitution, as sheltering them from court processes, arrest and imprisonment being former Heads of State.
Section 308, captioned: "Restriction on legal proceedings," states as follows:
(1) Nothwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section,
(a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period in office;
(b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and
(c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued:
Provided that in ascertaining whether any period of limitation had expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period in office.
(2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.
(3) This section applies to a person holding the office of President, Vice-President, Governor or Deputy Governor; and the references in this section to "period of office" is a reference to the period during which the person holding such office is required to perform the functions of the office.
One basic fact that emerges here is that Section 308(3) refers to serving President, Vice-President, Governor and Deputy Governor who could not answer to court proceedings either civil or criminal, or arrested or imprisoned while in office. But the Generals are no longer in office.
Even if they were in office, they could still answer to civil or criminal proceedings in their official capacity or where they are only a nominal party (see subsection (2)).
Besides, Oputa has consistently stressed and he repeated same during the ruling on October 3 that:
Apparently dismissing the charge by the Generals that they were the target for establishing the commission, Oputa explained that every public person, past or serving Heads of State, top government officials, who served between 1966 and May 29, 1999 could be summoned to appear before the panel, whether or not the person was mentioned in any petition before it. This was another argument put forward by the Generals!
"Equality of all before the law is one of the primary tenets of democracy and an essential constituent of the rule of law", Oputa told the Generals. And in defence of these principles, he urged the respondents to obey the summons or he would be forced to apply the powers of the commission conferred by Tribunal of Inquiry Act ñ whose Section 10 imposes a six-month imprisonment for breach of its provisions ñ for refusal to attend the commission.
Allegations for which Buhari, Babangida and Abubakar are needed as witnesses border on murder and or attempted murder. Buhari is to answer to human rights violations under his regime (between 1983 and 1985), particularly the attempted extradition of Alhaji Umaru Dikko, through crating, from London to Nigeria in 1984. Dikko, former Minister of Transport under the Shehu Shagari administration, which Buhari toppled, petitioned the Oputa panel, alleging attempt at assassinating him by military regime.
Babangida, who ruled between 1985 and 1993, is to answer to charge of complicity in the murder of Dele Giwa, first Editor-in-Chief of Newswatch magazine, through a parcel bomb in October 1986. And Abubakar, who handed over power to the present democratic government on May 29, 1999, has the death of Chief Moshood Kashimawo Olawale Abiola, acclaimed winner of annulled June 12, 1993 presidential election, hanging on his neck. Abiola died while in governments custody on July 7, 1998.
Although Buhari and Abubakar are not talking, the apparent resolve of the three Generals not to attend the Oputa panel is gleaned through Babangida's pontification on moral, rights protection, legality, innocence before the law, reconciliation, rule of law and composition of the commission.
In an interview with The Guardian, Babangida differentiated between moral and reconciliation and legality and individual rights. "If appearance (at the commission) were based on moral, as some people suggested, perhaps we would have requried (Archbishop Olubunmi) Okojie to head the commission. You establish a Commission of Inquiry and made such judicial expert as Justice of the Supreme Court (Oputa) the chairman and you persuade me to appear on the basis of moral and reconciliation; and that we should throw legality and individual rights. You can't accuse me of murder and ask me to throw away legality and rights. It is a serious matter for the Court and I am ready to appear in the Court".
On reconciliation and innocence before the law, he said: "I am not against reconciliation, but reconciliation comes after on alleged offence is proved. That is when it is genuine. Again, the law presumes everyone innocent until he is proved guilty.But Gani (Fawehinmi) presumes me the other way round. So what do you want me to do, at the reconciliation commission? To say I am sorry for what I didn't do? Do you want me to argue endlessly of my innocence with little or no acknowledgement by the other party whereas the commission lacks judicial authority to establish my innocence or protect my rights?"
A favourable ruling for Babangida and others to appear by proxy would only have strengthened their seeking cover under the provisions of Section 308 of the Constitution. And now that the ruling was a disadvantage, Babangida has renewed interest to enforce his rights up to the apex court in the land.
"At the Supreme Court, everyone would be satisfied," he said. Wondering why Nigerians, who mouth and have good understanding of their rights do nothing to protect such rights, Babangida said he would pursue his rights to the limit regardless the Oputa ruling.
"I can be very stubborn when it comes to the issue of protecting my rights. I am sure whatever the ruling of Justice Oputa on my appearance, I will begin another legal battle because if the ruling is against me, I will go back to court. And I know that if the ruling is against Gani, he will like to do the same."
Sound argument, which could hardly be faulted by those who believe in tyhe rule of law. Except that Babangida has actually not left the court. The issue of appearance is sub judice at the Federal High Court, Lagos. Himself, retired Colonels Halilu Akilu and A.K. Togun had gone to court to stop the Oputa Commission from forcefully or otherwise bringing them to appear before it, over allegation of complicity in death of Dele Giwa in 1986.
However, the case suffered some reverses less than 24 hours after Oputa had threatened on October 3 to invoke the commission's powers to compel the Generals to show appearance. The applicants wanted a point of law, which was referred to the Appeal Court for interpretation, to be transferred to the Supreme Court, without the Appeal Court first pronouncing on it. This was turned down by the Court, in a unanimous decision read by Justice Ifeyinwa Nzeakor, with Justices George Oguntade and Olu Obadina concurring.
They held that to transfer the case would be unconstitutional and amount to reducing the Appeal Court to a clearing house for the Supreme Court.
Counsel to the applicants, Chief Frederick Rotimi Alade Williams, had relied on Section 295(2) of the 1999 Constitution to request the Court to transfer the matter to the Supreme Court. But Justice Nzeakor (Mrs.) stated that the words of Section 295(2) were as clear and definite and that the operating word "shall" contained therein "conveys a command and carries compulsory connotation".
In other words, it is mandatory and obligatory of the Court of Appeal to pronounce on the said section when interpretation is sought from it from the Federal High Court or High Court. And failure to pronounce on it amounts to abdication of responsibility.
Section 295 deals with "Reference of questions of law," and its subsection (2) states that:
"Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Federal High Court or a High Court, and the Court is of the opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the Court of Appeal, and where any question is referred in pursuance of this subsection, the court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision."
The question of the law at issue could be referred, and not transferred to the Supreme Court if it had originated from an appeal to the Court of Appeal. But the same cannot apply to a referred matter from the Federal High Court for interpretation. The question of referal from the Court of Appeal to the Supreme Court is contained in subsection (3) of Section 295 of the Constitution.
Back to basics. Several pertinent and very compelling questions arise from the Oputa ruling on the appearance of the Generals. These are:
These are the possible fallouts from the action or inaction of the Generals, the Oputa Panel, the Police, the Obasanjo Administration, the various section and interest groups in the unfolding drama.
Insinuations abound that the Generals' refusal to attend the Oputa Panel is a calculated attempt to undermine the government of the day. Each of the Generals is said to have one grudge or the other against the government or the man heading. Quick reference is made to Buhari's unhappiness over the scraping of the Petroleum (Special) Trust Fund (PTF), which he headed till Obasanjo took over in 1999. This is reportedly responsible for his open support for the adoption and implementation of the Sahria legal system by some Northern States; and his campaign that Moslems should vote for only Moslem candidates in future elections in the country.
For Abdullsalami Abubakar, he is said to be worried that President Obasanjo, whom he literally handed power, could not cover his flanks. Rather, he allows some people believed to be on ego trip to question his transparency and accountability in the brief period of his tenure as Head of State between June 9, 1998 and May 29, 1999.
Babangida's grouse is hard to pinpoint, having reportedly bankrolled Obasanjo's presidential bid in 1999. The duo could cross each other's part on Obasanjo's second term ambition, but Babangida has repeatedly hinged his contesting the position only if his friend is not interested in job in 2003.
Sources disclosed that while others might hold the view that certain actions of the government are targeted at them directly or otherwise, Babangida has always felt no threat from the government quarters, and as such, was prepared to answer the Oputa Commission's summons even if it were extended to him while panel first sat in Abuja.
One source said the man changed his mind when some Northern leaders, who got wind of his readiness to avail himself of the opportunity offered by the commission to explain his side of the parcel bomb saga that killed Dele Giwa in 1986, visited his Minna Hill Top home.
Contrary to his belief, the visitors were said to have convinced him that government actions were indeed aimed at humiliating past and serving Northern leaders, and the region in its entirety. They referred to the reorganisation in the Military and the Bureaucracy where the Northern establishment was practically dismantled.
The killer punch was said to have been thrown by one of the Emirs from the North West, that by the time the government finished with the Oputa Panel and other agencies primed to deal with human rights violation and corruption, Babangida would have no hiding place. Not even his ambition to rule Nigeria again through the ballot box would be spared.
"That was the day Babangida changed his interest to disinterest for the Oputa Commission. And the next thing was to contact his lawyers, and together with Akilu and Togun, headed for the Federal Court, to restrain the commission from forcefully or otherwise bringing him to appear before it," the source said.
For the record, Babangida has vowed to continue the legal option open to him to prevent being forced to appear before the Human Rights Commission. The Court of Appeal has knocked off his bid to transfer the question of law referred to it to the Supreme Court. And Oputa has served notice that time had run out on the Generals to wanting to avoid appearing before the commission and threatened to invoke the powers vested in panel to ensure compliance to its summons.
Yet, this deduction is unlikely: that the commission would arrest or imprison the Generals. Because of the possible backlash, the panel may cleverly allow "discretion to be the better part of valour," as Justice Oputa had beautifully laid out in his ruling on October 3. And notice his replacement of "appearance" with "attendance", and "proceedings" with "meetings" in the ruling.
Whose interest will it serve if the Generals are subjected to the rigours of the law establishing the commission, and hell is let loose by mischief makers waiting in the wings to unleash mayhem on the country? See what is happening in the North over American and British bombing of terrorist targets in Afghanistan.
Remember, Nigeria lost several of her nationals in the suicide attacks on New York ad Washington on September 11. But back home, some Nigerians hailed the dastardly act and immediately unleashed terror on those against their support of evil in Jos, Plateau State. That terror has been extended to Kano, the hot bed of fundamentalist agitation in the country.
The Generals may have fallen victim to the abuse of power, as Justice Oputa noted in his ruling, but the issue of might over right is far from being resolved, as the Generals and their supporters have clearly demonstrated.