The Obasanjo administration garnered positive public acclaim when it set up the Oputa Panel. The work of the Panel has been described as ‘so thorough, so profound, so well-conducted, so conclusive and so painstaking that it probably had no rival in the country’s history’.123 In similar vein, President Obasanjo commended the Oputa Panel for its job well done, noting that the public hearings had the strong potential to serve as a deterrent to the violations of human rights in the country.124
However, till the end of its tenure, the Obasanjo administration refused to publish or implement the Oputa Panel Report. Victims have remained uncompensated. The Obasanjo administration anchored its decision on the Supreme Court in the Oputa Panel case mentioned above. The issue of
123 Guardian Editorial note 31 supra.
implementation of the recommendations of truth-seeking processes is multi- layered and complex. Nonetheless, the refusal of the government to publish the report of the Oputa Panel (which it had in fact accepted and set up a review committee to work on before the Supreme Court decision) is a singularly significant one. Although the government maintained that it was constrained from taking the Report further as a result of the judgement125 it failed to provide a basis for its decision from any part of the judgement. Thus, the premise for the government’s position remains vague.
The administration’s refusal to publish and implement the Report and recommendations of the Panel attracted widespread condemnation. The action of the government has been described as ‘one of the most unfortunate actions’ of the regime.126 It has also been cited as one of the country’s attempts at political reform that has been dumped midstream.127 Many groups and individuals have made repeated requests for the release and or implementation of the Report.128 The calls for positive action by the government have however been consistently ignored. Critics of the government position have noted that the Supreme Court did not ‘bar’ the government from releasing the Report.129
There is no unanimity on the effect of the Supreme Court judgement on enforceability of the recommendations. While some agree that the decision may have rendered nugatory aspects of the recommendations that related to the plaintiffs, they contend that the Supreme Court judgement was no excuse to ‘suppress the truth.’130 Others, including the President of the West Africa Bar Association, insist the Supreme Court in fact endorsed the Panel and that its creation was in any case valid under international conventions to which the country is party.131 Thus the government ought to implement the recommendations. The latter view would appear to be strengthened by the failure of the government to offer an explanation on the specific aspects of the judgement which prohibited it from publishing and implementing the decision. The failure of
125
K Oderemi “Reopen Deaths of MKO, Kudirat, Dele Giwa, Others-Oputa Panel’s Report” ” Sunday Punch on the Web (Lagos Nigeria Sunday 2 January 2005).
126 Guardian Editorial note 31 supra.
127 K Sanyaolu “The Case against Third Term” The Guardian Online Edition (Lagos Nigeria
Sunday 5 March 2006).
128 See for instance N Ugah “Afeniferere Wants Oputa Panel Report Released” This Day (Lagos 9
December 2004) and S Yakubu “Oputa Report: Kukah Tackles FG” Sunday Punch on the Web (Sunday December 12 2004).
129
Guardian Editorial note 31 supra.
130 Ibid. See also Oderemi note 125 supra.
131 F Falana “When Will Leaders Pay for their Iniquities?” This Day (Lagos Nigeria 20 December
the Obasanjo administration and the continued silence of the successor government on the matter has been telling. The non release of the Report has been viewed as one of the cardinal reasons for the continued agitation by some segments of the country on a number of issues.132
In the face of government refusal to publish the Report, some civil society groups, including one which consulted for the Oputa Panel, proceeded to publish it on the internet.133 Another coalition known as Civil Society Forum has commenced the publication in bound form with the publication of ‘The Executive Summary, Recommendations and Conclusions.’ The group observes that in all events, the Supreme Court judgement does not bar publication of the Report.134 They consider that the people can find other ways of getting the recommendations of the Panel implemented, despite the intransigence of government. Organising a referendum on them is one such way. This informs their determination to ensure the full publication of the Report for mass education and action.135
Since 1999, there has been an upsurge in violent property crimes and inter- communal and ethnic conflicts in the country. The view has been expressed in some quarters that not only has the transition to democracy failed to deliver on justice and restoration of the rule of law, but that impunity and state-sponsored violence have remained unchecked, if not increased, in the country.136
Hopes for a new dawn in the wake of the transition have gone largely unfulfilled.137
The Nigerian government, in jettisoning the Oputa Panel Report with its wide-ranging recommendations for accountability and institutional reforms, has likely contributed to the current state of affairs.
On the whole, it can nonetheless be fairly asserted that in the pursuit of its mandate, the Oputa Panel did a commendable job of seeking to establish the truth about the course of executive and legislative governance in the pre-transition period in the country. The aftermath of the truth-seeking-process in Nigeria, particularly as it relates to the non-implementation of the recommendations of the
132 Guardian Editorial note 31 supra.
133 S Olokojobi “We’ll Publish Original Oputa Report- Fayemi of CDD” The Daily Independent
(Lagos Saturday 11 December 2004).
134 Oderemi note 125 supra. 135 Ibid.
136 Hope Betrayed? A Report on Impunity and State-Sponsored Violence in Nigeria (CLEEN
Lagos & OMCT Geneva 2002)
137 Human Rights Watch “A Human Rights Agenda for Nigeria’s 2007 Elections and Beyond (A
Human Rights Watch Briefing Paper February 2007) 1 available at: http://hrw.org/backgrounder/africa/nigeria0207/ (2 March 2007)
Panel, strikes an observer as an inherent defect that undermined its well-received work.
CONCLUSION
The work of the Oputa Panel provides ample justification for its establishment. The popular acclaim it received testifies to its relevance and acceptability as an apposite transitional justice measure in post-authoritarian Nigeria. However, a combination of factors, including poor planning and deficit of sincerity on the part of the government that established it, as well as lack of political will, played out to frustrate transitional justice efforts in the country.
It has been argued that Truth Commissions face two types of challenges: avoidable and inherent. The former derive from issues surrounding their establishment, conduct and follow up, while the latter has to do with the very nature of the enterprise.138 The search for truth and reconciliation in Nigeria through the Oputa Panel suffered a fundamental set back in its lack of tailor-made legislation.
One of the crucial issues that ought to be addressed by such legislation, as the legal challenge to the Oputa Panel showed, is the jurisdictional scope of the process within a federal polity like Nigeria. The incident of power-sharing between the central and state governments dictated the need for legislation that validly defined the scope of the powers of a truth commission. This is critical where the truth commission is established by a central government with limited territorial and issue-jurisdiction, characteristic of federal polities. It is significant to note in this respect for instance, that state governments had powers similar to that of the president to establish a commission along the lines of the Oputa Panel in their states under various (though similar) Tribunals of Inquiry Laws.
It will be argued, essentially on consequentialist grounds, that the neglect of accountability of a public nature for the judicial role in the period of authoritarian rule is fatal to the transitional polity. It will be contended later on, that neglecting accountability of the judiciary as an integral part of the transition process is largely responsible for the ensuing state of judicial insensitivity to the dynamics of law and adjudication in such societies. As will become obvious from this study, the seeming faux pas in the conduct of the Nigerian truth-seeking process in this
regard, has serious implications for the important role the judiciary plays in a transitioning polity.
The negative impact of the unaccountability of the judiciary for past governance as part of a transitional justice process is more conspicuous in a society seriously challenged by a legacy of dysfunctional institutions. The fragile institutional structures that characterise societies in transition engender substantial reliance on the judiciary as the major force to stabilise and foster the democratisation process and uphold rule of law. Such critical functions can only be appropriately taken up by an accountable and transformed judiciary. It is thus to the case for accountability of the judiciary in transitions that we should now turn.
Chapter Two
THE CASE FOR JUDICIAL ACCOUNTABILITY IN TRANSITIONS
INTRODUCTION
The discussion in Chapter One highlighted how the Oputa Panel as a truth- seeking process in the context of Nigeria’s transition failed to address the role of the judiciary in the period of military rule. The otherwise laudable work of the Oputa Panel left a critical gap in accountability for misgovernance. While the Panel conducted a laudable enquiry into the activities of the executive and legislature as constituted at various times by a number of successive military regimes, it failed to engage with the role of the judiciary in governance in almost three decades of authoritarian rule. It was almost as if the judicial branch was in complete abeyance or indeed, non-existent in the country during the period. But, even as the special or institutional hearings of the Oputa Panel revealed, this was factually not the case. The current chapter argues a case for the judiciary to be made to give an account of its role in governance in the period of authoritarian rule through a truth-seeking process as part of transitional justice measures. This is based on the position that the judiciary as the third branch of government, participates in governance at all times.
The gap in the conduct of the Oputa Panel earlier discussed raises the relevance of accountability for the judicial role in past governance at times of political change. I intend to critically examine the salience of such institutional accountability in this study. This is partly because the Oputa Panel, as a transitional justice measure, more specifically, truth-seeking process in a post- authoritarian context, is not alone. There is an existing gap in transitional justice research on the role of the judicial institution in governance in post-authoritarian societies. The present inquiry seeks to generate scholarly interest in an otherwise neglected aspect of transitional justice theory and state practice. The paucity of critical perspectives on the role of the judiciary during a society’s authoritarian period could lead to the view that it lacks a distinct role in governance. In the alternative, it suggests that the judicial function was inconsequential or judicial outcomes were invariably imposed during the relevant period. The chapter attempts to address the gap in existing transitional justice research on judicial governance in authoritarian societies. It presents a general case for judicial accountability for the past in transitions. Thus, this chapter is conceived as a
theoretical framework for the case for accountability of the judiciary for past governance. The framework developed here will be applied to the analysis of the Nigerian context in Chapter Three.
Historically, Nigeria started out its post-independence existence as a Westminster-type political arrangement but subsequently translated into an American-styled federation. The course of governance (including the judicial) in the country has been shaped not only by its current political leanings, but also, historical antecedents. In view of these factors, comparative insights from both the British and American legal and political experiences are germane to a discussion of Nigeria’s judicial institution. Thus, I draw on Anglo-American judicial traditions and experiences in articulating the case for accountability of the judiciary for the past in the context of the country’s transition. In this regard it is relevant to add that later parts of this thesis equally benefit from comparative insights.
In articulating a theoretical framework, the chapter considers two critical issues framed as queries. First, to what extent ought the role of the judiciary to be held up to public scrutiny as part of the transitional justice process? In the alternative, should it not be the case that the judiciary is held to account for its role in societal experience of gross violations of human rights and impunity? Secondly, what is the relevance of such inquiry? It is anticipated that the inquiry will unearth the significance of the role played by the judiciary in post-authoritarian societies in particular and rifted societies in general. Further, it should also throw some light on the circumstances underlying judicial choices in the task of adjudication. The chapter locates uneasiness in the interaction of the truth-seeking process with the initiative to bring the judiciary to account for its role in governance through a public mechanism. The uneasy relationship derives from reconciling the imperative of judicial accountability for the past with the important doctrine of judicial independence. There is the view that public accountability of this nature inherently challenges, if not critically subvert the integrity of the judiciary, one of the important institutions of the state (particularly in transitional societies). On the other hand, there is the position that non-accountability of any institution that was involved in governance, including the judiciary, weakens the viability of the truth- seeking mechanism which in some instances (like the Nigerian situation), is the main agent for achieving transitional justice.
I advance the argument that the adoption of a course of action which takes cognisance of the context of societal transition is the appropriate approach. The
strategy must also incorporate relevant principles of international law, especially rights and humanitarian law. This course of action will smoothen, to a large extent, the rough edges of the uneasy interaction between accountability and institutional independence. Perhaps more importantly, the approach offers opportunity to transform and secure new legitimacy for the judiciary which has become complicit for misgovernance through quiescence to authoritarian military misrule.
Section II examines the nature of state powers and the role of the judiciary in governance. Section III focuses on the implications of accountability of the judiciary for the rule of law. Section IV argues the view that judicial governance constitutes a distinct mode of exercise of power and this provides justification for the imperative of accountability of the judiciary. It advances a case for accountability of the judiciary for its past role in governance in transitional contexts with particular reference to post-authoritarian societies. The analyses brings to the fore that public accountability of the judiciary for the past is a key factor in the aspiration for transformed and sustainable institutions of the state.