TheNigeriaLawyer Editorial

Introduction

In the wake of widespread protests by aggrieved and concerned Nigerian youths against Polce brutality and later culminated into bad governance, the National Economic Council (NEC) of Nigeria directed State Governors to set up judicial panels of inquiry (tribunals of inquiry) to look into the allegations of human rights violations orchestrated by the Nigeria Police Force and more particularly by its “defunct” SARS unit.

In less than two weeks of the issuance of this directive, an impressive number of States amongst which are Lagos, Edo, Osun, Abia, Delta, Niger, Bauchi, Ekiti, Kwara, Cross River, Enugu, Ogun etc. had constituted judicial panels of inquiry to look into the allegations. However, what was ostensibly supposed to be a panacea to police brutality has been greeted with scepticism by pragmatic Nigerians who are particularly fastidious on issues bothering due legal process and legality.

The issues which have sparked passionately heated debates and have so far remained in contention borders on the statutory provision enabling the constitution of these panels by State Governors, the power of these panels to inquire into allegations of human rights violations by a Federal Government agency (the Nigeria Police Force) and the power of such constituted tribunals to enforce whatsoever decision they might arrive at. It is therefore the aim of this editorial to objectively address these issues.

The Statutory Provisions Enabling the Constitution of these Panels by State Governors:  What We Must Know.

While State Governors might have been informally asked to constitute judicial panels of inquiry to look into the allegations within their respective states, it is important to note that such panels as have been established would be likened to toothless bulldogs should they be found  wanting in binding and enabling legal instruments to provide for their establishments and powers.

Hence, having regards to judicial panels of inquiry, the principal act within the context of Nigerian municipal Laws is the Tribunals of Inquiry Act, CAP T21 LFN 2004. This Act  among other things specifically but not exclusively vests the power to constitute tribunals of inquiry on the President of the Federal Republic of Nigeria under section 1. In its exact wordings, it is provided thus:

The President (in this Act referred to as “the proper authority”) may, whenever he deems it desirable by instrument under his hand (in this Act referred to as “the instrument”) constitute one or more persons (in this Act referred to as “member” or “members”) into a tribunal to inquire into any matter or thing or into the conduct or affairs of any person in respect of which in his opinion an inquiry would be for the public welfare; and the proper authority may by the same instrument or by an order appoint a secretary to the tribunal who shall perform such duties as the members shall prescribe.

Furthermore, in the consciousness of the necessity of this powers for State Governors, it provides under section 21 for the preservation of the same power for Governors of States to constitute tribunals of inquiry. The Section reads:

Nothing in this Act shall be construed as precluding the Governor of a State from constituting a Tribunal of Inquiry to inquire into any matter in respect of which the House of Assembly of that State has power to make Law.

Matters arise nevertheless when the act fails to specifically provide for the powers exercisable by State Governors in the constitution and regulation of these tribunals. However, by stating to inquire into any matter in respect of which the House of Assembly of that State has power to make Law, it impliedly vests on the State Houses of Assembly the power to determine the modus operandi of the tribunals of inquiry to be set up by their respective State Governors in as much as the issue to be inquired into falls within the provisions of Part II of the Second Schedule of the 1999 Constitution of the Federal Republic of Nigeria.

Hence, pursuant to enabling provisions of the various States, judicial panels of inquiry were set up in the States. Amongst such enabling Laws are the “Commission of inquiry Law, Cap C15, Laws of Delta State, 2006 for the Delta State judicial panel of inquiry, the Tribunals of Inquiry Law, Laws of Lagos State 2015 for the Lagos State judicial panel of inquiry, the Commission of Inquiry Law Cap 29, Laws of Osun State 2002 for the Osun State judicial panel of inquiry etc.

Thus, the Tribunals of Inquiry Law, Laws of Lagos State 2015 which enabled the constitution of the judicial panel of inquiry in Lagos State empowers the Governor under its Section 1 (1) to constitute same when necessary. It provided thus:

The Governor may when necessary, constitute one or more persons by a signed instrument, a Tribunal with authority to inquire into the conduct or affairs of any officer in the public service of the State, or any officer in a local authority in the State, or of any chief or the management of any department of the public service or of any local authority or declarations of Customary Law relating to selection of an Oba or a recognised Chief or any matter relating to any chieftaincy dispute, or into any matter in respect of which in the opinion an inquiry would be for the public welfare. The Governor may by the same instrument or by an order appoint a Secretary to the Tribunal who will perform such duties as the members will prescribe.

See also Section 2(1) of Oyo State Commission of Inquiry Law Cap. 32, Laws of Oyo State, 2010.

Additionally, this power of State Governors to set up judicial panels of enquiry has also been upheld by the Supreme Court when it held in  FAWEHINMI AND 2 OTHERS V BABANGIDA (RTD) AND 2 OTHERS (SC 360/2001) [2003] 9 (31 JANUARY 2003) through  Per Uwais thus:

The National Assembly cannot enact a general Law for the establishment of tribunals of inquiry for, and applicable in, the Federation of Nigeria. The power to enact such a Law has become a residual matter for the States in respect of which the Houses of Assembly can legislate for their respective States by virtue of Section 4(7) (a) of the 1999 Constitution. Although the Tribunals of Inquiry Act is an “existing Law,” its application is limited and has no general application.

The implication of the decision of the Supreme Court in this celebrated case is that State Governors and not the President reserve the right to establish judicial panels of enquiry to the extent of their functionality in their respective States.That is, the Act is of no general or universal application in the whole country.

Powers of the Judicial Panels of Inquiry to Inquire into Allegations of Human Rights Violations by a Federal Government Agency (the Nigeria  Police Force)

While investigating human rights abuses does not fall outside the powers of constitutive State Governments of Nigeria and is not an issue in contention, the involvement of a Federal Government Agency (the Nigeria  Police Force) gives rise to some concerns. However, a cursory look, at the articulate provisions of Section 5 (c) of the Tribunals of Inquiry Law, Laws of Lagos State 2015 is enough to dismiss every iota of doubt. In providing for the powers of the Tribunals, it states:

Subject to the provisions of this Act, a tribunal shall have and may exercise any of the following powers:

(c) to summon any person in Nigeria to attend any meeting of the Tribunal to give evidence or produce any document or other thing in the person’s possession…

In the same vein, the Tribunals of Inquiry Act provides under its Section 5 (c) thus:

the power to summon any person in Nigeria to attend any meeting of the tribunal to give evidence or produce any document or other thing in his possession and to examine him as a witness or require him to produce any document or other thing in his possession, subject to all just exceptions …

By using the term any person in Nigeria, it is broad enough to include  natural persons, corporate bodies, government agencies etc. thus, there is no preclusion of the Nigeria  Police Force from being subject to the inquiry of the tribunal so constituted.

Corroboratively, the Supreme Court per Uwaifo JSC held in Fawehinmi v Babangida held that:

Sections 5 (c), 10 and 11(3) of the Tribunals of Inquiry Act, compel the attendance of witnesses and the production of documents were constitutional and valid in so far as they applied to the Federal Capital Territorythus dismissing every notion of immunity of Federal Government Agencies from being compelled to appear before tribunal of inquiries set up in the Federal capital Territory or any other State.

Enforceability of Resolutions : The Pros and Cons.

Enforceability of judicial decisions in Nigeria has always been an infamous subject matter of discourse particularly amongst human rights Lawyers. However, with regards to enforcement of the resolutions of a judicial panel of inquiry, the procedure is contained in Section 15 of the Tribunals of Inquiry Act. It provides thus:

A tribunal shall, if so directed or required make any order in relation to any property or other matter dealt with in its report; and such order when made may be delivered to the Registrar of a High Court (which order the Registrar is empowered and required to receive and register without payment of a fee) and when so delivered the order shall have effect as a judgment of that High Court and may be enforced accordingly but shall not be reviewed in any Court by prerogative writ or otherwise howsoever and no appeal shall lie therefrom.

Corroboratively, the Tribunals of Inquiry Law, Laws of Lagos State 2015 makes similar provisions under its Section 15. By its provisions, the constituted tribunal or panel of inquiry is required to:

Make and furnish to the Governor a full report in writing of its proceedings, findings and recommendations and record an opinion and reasons leading to its conclusion.

Sequel to this, the Governor is required (as would be determined by necessity) to:

Make any order in relation to any property or other matter dealt with in the report; and such order when made may be delivered to the Registrar of a High Court (which order the Registrar is empowered and required to receive and register without payment of fee) and when so delivered the order will have effect as a judgment of that High Court and may be enforced accordingly but will not be reviewed in any Court by prerogative order or by any other means and, no appeal will lie from the order.

With these provisions, it is though sad, but noteworthy that these tribunals of inquiry are restricted in providing for remedies should the need arise and more particularly with regards to making orders for policy changes within the Nigeria Police Force. These restrictions stem from the fact that their recommendations cum resolutions may be submitted to the High Court within their respective States (by cumulative interpretation of Sections 15 and 21 of the Tribunals of Inquiry Act) which has no jurisdiction over the Nigeria Police Force as an agency of the Federal Government. Thus, enforceable remedies which are within the jurisdiction of these State High Courts are majorly reparations (compensations) for the victims in form of a judgement entered against the Commissioner of Police of the particular State in his or her official capacity.

It has also been argued with vehemence that by the dint of Section 6 of the National Human Rights Commission Act, 2010 the Commission ought to be the exclusive institution to handle issues such as this. It is our view that the argument is attractive and appealing but however, it does not invalidate the conduct of the Tribunals of Inquiry in the light of the above analysis.

Nevertheless, subject to the goodwill of the Federal Government, it might accept such recommendations and resolutions of the various tribunals of inquiry for use in policy formulation to ensure that the bane of human rights violations by the Nigeria  police force no longer thrives.

Conclusion

For the purpose of ensuring that the sanctity of the human rights is upheld and that the bane of police brutality is dealt with once and for all, State-based judicial Panels of Inquiry are preferable over a central panel of inquiry given the ability to address petitions from a wider public and large data gathering capability. However, Nigerian law at present particularly relating to its ostensibly federal structure and division of powers amongst the tiers of government might be inhibitive to the actualisation of the objective of these panels of enquiry. While an overhaul of the whole system is strongly advised, in the meantime, the Federal Government has to show its concern and sorry state for the complaints of the Nigerian youths by implementing such resolutions as would be reached by the various judicial panels of inquiries being set up.

"Casebook on Human Rights Litigation in Nigeria," This book painstakingly addresses the predicament of lawyers and judges in accessing relevant cases of interest. Call +2348033254471

Send your press release/articles to thenigerialawyers@gmail.com, editor@thenigerialawyer.com, Follow us on Twitter at @Nigerialawyers and Facebook @ facebook.com/thenigerialawyer

For Advert Inquiries Tele/+234 806 819 1709 E-mail: thenigerialawyers@gmail.com

Subscribe ToTheNigeriaLawyer News!