It is relevant to comment briefly on the petition on the murder of Dele Giwa at this point. An analysis of the litigation it generated constitutes a case study of a tension that exists between truth-seeking processes, the judiciary, and judicial accountability for the past in transitions. These are issues at the core of our research and will be more fully examined later.101 However, it is germane to examine the public hearing of the petition at the Oputa Panel in as much as it relates to laying out the context of the research. Of all the petitions heard at the public hearings, the Dele Giwa murder-petition was the most controversial. Dele Giwa was a prominent and fearless journalist, editor and publisher of Newswatch, a leading newsmagazine in Lagos. He was allegedly murdered by military intelligence through a letter-bomb on the orders of the General Ibrahim Babangida then Head of state, on 19October, 1986. Efforts by his solicitor, Gani Fawehinmi, to investigate and prosecute those responsible were frustrated by the military.102 The struggle to establish the truth about the murder shifted to the Oputa Panel following the inauguration of the Oputa Panel. Fawehinmi submitted a petition against General Babangida and his two security chiefs in which he made a case for the matter to be reopened. The Oputa Panel issued summons for the appearance of the ex-Military ruler and his two security chiefs accused of complicity in the matter. None obeyed. Rather, the trio went to the High Court with an ex parte application to restrain the Oputa Panel from summoning them. This led to the case, Gani Fawehinmi, Justice Chukwudifu Oputa (Rtd.) and
Human Rights Violations Investigation Commission v General Ibrahim Babangida, Brigadier Halilu Akilu and Brigadier Kunle Togun (the Oputa Panel
Case).103 The generals sought, among other things, a declaration that the President lacked the powers to act under the existing law to establish a body like the Oputa
101
Chapter Four infra.
102 Despite the frustrations he has met with in his quest to bring the killers of the prominent
journalist to book, he has remained undaunted. See for instance, O Ojo “21 Years after Dele Giwa’s Murder- Fawehinmi to Govt: Reopen Case” The Guardian Online Edition (Lagos Saturday 20 October 2007).
103 [2003] M.J.S.C 63. For an extensive consideration of the case, see Chapter 4 infra and H O
Yusuf “The Judiciary and Constitutionalism in Transitions: A Critique” (2007) 7 (3) Global Jurist 1 available at: http://www.bepress.com/gj/vol7/iss3/art4
Panel for the whole country. They also asked the court to stop the Oputa Panel from exercising the power to summon them. They claimed it contravened their right to liberty.
Meanwhile, a legal team applied to represent the generals at the Oputa Panel’s public hearing. That did not go down well with the Oputa Panel. Fawehinmi and other counsel also opposed their appearance. The contentious issue was whether the Oputa Panel, acting under Section 5 of the TIA, had the power to issue and serve summonses on three ex-military rulers. Could a summoned witness who failed to appear give evidence by proxy, namely through legal counsel? Whether having disobeyed the summons to appear in person, could they be allowed to cross examine witnesses of the Oputa Panel? The foregoing questions tasked the Oputa Panel. The TIA did not provide for proxy representation of witnesses. If the settled position of the law (at least in common law jurisdictions) on witnesses in civil and criminal litigation can be extrapolated, legal counsel can not take the place of witnesses. In other words, testimony is a personal issue that can not be delegated and stands apart from the right to legal representation. This position is consistent with practice elsewhere. For example Legal Notice No.5 of 1986 in Uganda which created the country’s second Truth Commission provides that ‘…any person desiring to give evidence to the Commission shall do so in
person’.104 Not only would it have undermined the rule of law to hold otherwise, it arguably would have amounted to a fundamental contradiction in terms in a
truth telling process for alleged perpetrators of rights violations to testify by
proxy.
In addressing the matter, the Panel framed a single issue to be addressed: whether proceedings before a truth commission constituted a suit at law or a judicial proceeding? The Oputa Panel decided that personal attendance of the summoned generals was required for the proper fulfilment of the Oputa Panel’s mandate. Specifically, the Panel in its ‘ruling’ insisted that witnesses were bound to attend in person in order to be entitled to the rights of legal representation, and (cross) examination.
Although many petitioners or witnesses were represented by counsel, they were in attendance to be examined themselves. Justice Oputa emphasised that military officers were not above the law. The Oputa Panel also took the position that a
104 See also the one established by General Idi Amin by a Presidential Legal Notice under the
proceeding before a commission of its nature did not constitute adversarial proceedings. For failing to appear, the Oputa Panel recommended that the generals be deemed to have forfeited their right to govern the country in future.105 The strong determination of the generals not to appear before the Oputa Panel introduced a twist to the truth-seeking process in Nigeria from which it never recovered.
Contestations around the legality of the Oputa Panel in various suits and appeals on them, instigated by the generals in their attempt at self preservation, introduced another dimension to the operation of Truth Commissions in transitional societies. They brought to the fore the tensions that may arise between the truth-seeking process and the judiciary in transition. They also offer valuable insights on some of the consequences of the accountability gap for the conduct of its role in the past on the part of the transitional judiciary. The Supreme Court decision in the matter, delivered well after the submission of the Panel’s Report, forms the bedrock of government’s decision not to implement the recommendations of the Oputa Panel. The Supreme Court held that the President lacked the powers to set up a body like the Oputa Panel with a remit that extended to the whole country to enquire into human rights violations. Further, it held that the powers of the Panel to summon the Plaintiffs were a violation of their right to liberty. As will be discussed in greater detail later in this study, the decision of the Supreme Court placed premium on the rights of the generals to liberty. This was to the detriment of and disregard for the wider rights of victims of gross human rights violations to truth and acknowledgement of their suffering under the country’s laws and its treaty obligations under international law referred to earlier.