Constitutionality of the judicial panels of inquiry constituted by state govts – SANs argue.

Cover Photo: Presentation of Lagos #EndSARS Panel report to Governor Babajide Sanwoolu.

The constitutionality of the judicial panels of inquiry constituted by state governments to probe alleged police brutality, codenamed #EndSARS panels, is back in focus and generating a storm in the Inner Bar.

Senior Advocates of Nigeria (SAN) have engaged in a back-and-forth since the Lagos State panel, on November 15, submitted its report, which indicted the Nigerian Army and the Police for alleged “massacre” of Lagos residents protesting police brutality at the Lekki Toll Gate on October 20, 2020.

The Lagos panel report, in particular, has provided the opportunity for agents of the state, led by the Minister of Information and Culture, Mr. Lai Mohammed, also a senior lawyer, to hit the nationwide exercise.

President Muhammadu Buhari had assured the global community of official action once reports from all participating states, were in.

But a high-ranking official of the administration on Sunday thrashed the entire exercise, nationwide.

Moving from general to specific, during an appearance on Channels TV, Minister of State for Labor and Productivity, Mr. Festus Keyamo, discarded the much-vaunted Lagos probe panel report and labeled the nationwide effort a waste.

On a general note, he said, “all the panels of inquiry set up by the various states of the federation following the crisis that arose as the result of #EndSARS protest all over the country are illegal.” He then zeroed in on the Lagos report, which seems to have found a soul mate in controversies.

Mr. Keyamo who was clear about speaking as a senior lawyer and not a government functionary, said, “All lawyers who are listening to me should go back and read the Tribunals of Enquiry Act of Lagos State. It says that the governor will have the powers to inquire into the conduct of any person – underline any person – and chieftaincy matters and any other matter that will promote the good of the state. However, ‘any person’ there was defined in Section 21 to mean public officers of the state. It is defined to mean somebody within the public service of Lagos State or of the local government as the case may be.

“Then, the phrase was used at the end of Section 1 that says ‘any matter’…that they can inquire into any matter. People now think that to inquire into any matter, it means that you can just be at large.

“However, if you look at Section 21 again, it says that it has to be within the legislative competence of Lagos State. In other words, it is only people over whom the Lagos State has control that they can inquire into their conduct. If you don’t have control over me, you cannot inquire into my conduct.

“Policemen, the Armed Forces, military; they are not under or officers of Lagos State; they are officers of the Federal Government. By virtue of the Constitution, it is only the Federal Government that can control the conduct of policemen and the military. Lagos State cannot be in control; they cannot legislate too, regarding police and military matters; they are on the Exclusive Legislative List.”

A fellow Silk and member of the Lagos panel, Mr. EbunOlu Adegboruwa, took the Keyamo challenge.

In a statement on Monday, the rights advocate said, “The Federal Government recently mooted the idea that all the judicial panels of inquiry set up by the various states across the Federation, especially that of Lagos State, are illegal.

“It has never been part of our legal system in Nigeria, for a plaintiff who approached the court in the first instance to turn around to challenge the legality or jurisdiction of the court.

“The #EndSARS panels were set up at the behest of the Federal Government, through the National Economic Council. “In the case of the Lagos Panel, the federal government, through the Nigerian Army, voluntarily submitted itself to the jurisdiction of the panel, the Federal Government called witnesses; it tendered documents and it made very lengthy presentations.

“A party cannot approbate and reprobate at the same time. Thus, a party who initiated a process and willingly and actively participated in that process cannot turn around, after judgment, to plead illegality or absence of jurisdiction, simply because the outcome is unfavorable. We must strengthen our institutions to make them work.

“While we all await the White Paper from the Lagos State government, it is important for government to build trust in the people in all its dealings and utterances.”

Leading lawyer, Mr. Femi Falana in his intervention called attention to subsisting judgments of superior courts of records, to repudiate Keyamo’s claim.

The Senior Advocate of Nigeria said, “the powers of governors to institute judicial commissions of inquiry to probe police brutality has generated a needless controversy. With respect, tribunal of inquiry is not one of the items in the Exclusive List or the Concurrent List to the Constitution. Therefore, it is a residual matter within the exclusive legislative competence of state governments.

“This was the bone of contention in the celebrated case of Fawehinmi v. Babangida (2003) WRN 4 where the Supreme Court held that:

“When it is remembered that the 1999 Constitution has made no provision for tribunals of inquiry as did the 1963 Constitution in Item 39 of the exclusive list and Item 25 of the concurrent list, it follows that, to repeat myself on the point, the power to make a general law for the establishment and regulation of tribunals of inquiry in the form of the Tribunals of Inquiry Act 1966 is now a residual power under the 1999 Constitution belonging to the States. However, in regard to the Federal Capital Territory, the power resides in the National Assembly.”

“It has also been contended that the judicial panels lack the vires to summon police officers who are in the public service of the federal government.

“In Fawehinmi v Babangida (supra), the Supreme Court dismissed such spurious contention. “Speaking for the apex court, Uwaifo JSC (as he then was) asserted that “Sections 5 (c), 10 and 11(3) of the Tribunals of Inquiry Act, to compel the attendance of witnesses and the production of documents were constitutional and valid in so far as they applied to the Federal Capital Territory”.

“In view of the categorical pronouncement of the Supreme Court on the validity of Section 5 (c) of the Tribunal of Inquiry Law, it is submitted that the power of all state governments to set up judicial commissions of inquiry to probe human rights abuse arising from police brutality is well grounded in law.

“In the same vein, the power of the judicial commission to summon police and military personnel as well as other officers in the public service of the federal government to testify in respect of allegations of human rights abuse cannot be questioned on solid legal grounds.

“Indeed, it is in the interest of all persons accused of violating the human rights of citizens to defend themselves in exercise of their fundamental right to fair hearing guaranteed by section 36 (1) of the Constitution. “Another objection is that the judicial commissions of inquiry are not competent to probe human rights abuse because the National Human Rights Commission has been empowered by the National Human Rights Commission Act to investigate all allegations of human rights in any part of the country.

“With respect, this argument is a red herring as the National Human Rights Commission has not been clothed with exclusive power to investigate all allegations of infringement of human rights in Nigeria. Hence, the human rights committees of the national and state legislative houses, as well as the human rights desks in many police stations, do investigate complaints of human rights abuse from time to time.”

Leading light of the Nigerian Bar Association (NBA) and chairman, NBA-Section on Public Interest and Development Law (SPIDEL), Dr. Monday O. Ubani, also weighed in, pointing out that the extant laws cover only states and the Federal Capital Territory (FCT) on the issue of constitution of tribunals of inquiry over any matter in the country.

In a lengthy op-ed, he said, “the governor can under the cumulative interpretation of Sections 15 and 21 of the Tribunals of Inquiry Law enforce remedies which are within the jurisdiction of the State High Courts, which are majorly reparations (compensations) for the victims in form of a judgment entered against the erring party – being the Commissioner of Police of the particular state in his or her official capacity.

“Recall that it was the National Economic Council resolutions of the Federal Government that led to the setting up of the states’ panels in the first place. It is my view that the federal government should accept the 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 Nigerian Police Force can no longer thrive.

“As at today, only the states in the federation and the Federal Capital Territory, Abuja can set up tribunals of inquiry over any issue in Nigeria. These tribunals can summon and investigate anybody whether corporate or individual on any issue, especially matters that affect the “welfare” of the citizens of the country.

“The present panels set up by the various states in the federation are constitutional, legitimate and are empowered to inquire into the various allegations of human rights violations committed by the personnel of the Nigeria Police Force as nothing in the Constitution of Nigeria precludes them from doing so with the plethora of cases and samples already cited above.

“Presently, no judicial decision so far has pronounced the panels as unconstitutional despite the grumblings here and there. In fact, the feeble attempt by the Chief Legal Officer of the Nigerian Police Force to institute a suit challenging the legality of the panels, was met with severe reprimand from the top hierarchy of the Force and the said suit was quickly withdrawn from the court. We do not know of any other pending suit challenging the legality of the panels presently in any of the Nigerian courts.

“Rather, astonishing news have been received across the various states in the federation that some states have begun implementing the recommendations of the various panels, by compensating the victims of police brutality in Nigeria. Lagos State is an example of the states that have paid some of the victims of Police brutality.

“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 clearly preferable.

“In the meantime, the Federal Government is herein advised to show its concern and atone for the complaints of the Nigerian youths and others for the manifest brutality meted out to them by the police.

“The federal and state government should be properly guided to go the whole hog in implementing all resolutions as would be reached by the various judicial panels of inquiry.

These resolutions should be geared towards implementing a holistic reform of the entire Nigerian security apparatus. “Lagos State is enjoined to follow its law on this Panel of Inquiry and do the needful. Time is ticking for everyone.”

Source: The Tribune.




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