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Post Election violence panel and the president’s powers under the constitution

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As Nigerians, we were “celebrating” the dawn of a new era as ushered in by the recent elections commendably organized by Professor Attahiru Jega, when the nation suddenly became overwhelmed by the horror, carnage and violence that greeted the announcements of results of the Presidential elections in some Northern States.

This display of madness, crudity and primordial instincts, cost us the blood of innocent, but very patriotic members of the Nigerian Youth Service Corps who have apparently offered their “blood” as a national sacrifice for our democratic greatness.

This discourse examines the constitutionality or otherwise of the panel recently set up by the Federal Government to amongst other things investigate the immediate and/or  remote causes of the violence that occurred in some Northern parts of this country.

The 1999 Constitution of Nigeria Entrenches Some Principles of Federalism.

Even though most constitutional lawyers and scholars have justifiably faulted the unitary nature of the legal caricature called the 1999 Constitution as amended, it nevertheless contains some principles of federalism in its content and operation.

One of such areas is the issue of powers to set up panels, commissions or any other investigative body in respect of offences committed in the Federal Capital Territory of Nigeria or any other part of Nigeria.

In retrospect, during the fascist military era of the 60’s, General Yakubu Gowon’s Administration had hitherto enacted the Tribunal of Inquiry Act, 1966 Cap T21, Laws of the Federation of Nigeria 2004, to regulate the structure, composition and powers of such a panel or commission as the case may be.

Being a unitary contraption, the uniformity of the said Act as well as its draconian provisions immediately gained force throughout the entire country regardless of the existence of component regions and/or states at that time. Thus, the Gowon Administration employed the said Act, to set up tribunals and panels in Western Nigeria and Midwestern Nigeria amongst others.

Above all, such tribunals being propelled by the force of the barrel of a gun had powers to even compel attendance of any person or production of any Tribunal and Inquiry Act 1966  Declared Inconsistent with the Provisions of The 1999 Constitution.

This was the state of affairs until the “Promulgation” of the 1999 Constitution. Yes, the word “Promulgation” is used advisedly because our 1999 Constitution was given birth to by the force of Decree 24 of 1999. In other  words, our democracy was “Decreed” to us by the military, hence we still have a lot a Unitarian provisions in our Constitution.

Be that as it may, with the advent of the said 1999 Constitution, the hitherto existing order of compulsion and unitary power entrenched in the said Tribunal and Inquiry Act, became legally otiose.

Accordingly, during the proceedings of the Human Rights Violation Investigation Panel i.e. Oputa Panel, of which my dear dad Dr. Mudiaga Odje (1923-2005) of blessed memory was a member, the panel sought to compel the attendance of former military Czar, General Ibrahim Babangida and others from his Directorate of Military Intelligence at that time, in respect of the brutal and callous murder of the great Dele Giwa of Newswatch fame.

This invitation was flatly rejected and challenged by the above persons up to the supreme court. The terribly learned Chief Rotimi Williams, SAN, of blessed memory, in his usual circumspect perception of the law, contended that with the advent of the 1999 Constitution, the Federal Government no longer had the powers to constitute any committee/panel/tribunal in respect of matters arising from any State in Nigeria except they occur within the Federal Capital Territory of Nigeria.

Upholding this view in the case of Fawehinmi vs. Babangida (2003) 3 NWLR (pt 808) 604, the sagacious Uwaifo JSC at pages 656-657 paras F-A stated as follows that:

“To resolve the dispute depends principally to what extent the said Act is valid vis-a-vis the 1999 Constitution. It is that which must decide the power Mr. President can exercise under it and the jurisdiction of the Commission both operationally in regard to the subject matter and territorially in regard to areas outside the Federal Capital Territory, Abuja.

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 Abuja, the Power resides in the National Assembly.”

Augmenting the above adumbration, the exquisite Ejiwunmi, JSC of blessed memory noted at page 60 paras B-D that:

“It remains to be said that under the 1999 Constitution, the establishment of Tribunals of Inquiry is now a residual matter, which only the states can promulgate”.

On his part the proficient Onu JSC at page 677 paras F-G pontificated that:

“The National Assembly can only pass such a law in regard to the Federal Capital Territory, Abuja. Thus, while the Commission of Inquiry Act, Cap. 447 is an existing law, it has no general application to Nigeria. It is only applicable to the Federal Capital Territory a law deemed enacted by each House of Assembly for the respective States”.

This is the position of the law according to the words of the supreme court above.

Federal Government Panel On Post Election Violence Lacks Powers to Summon Persons, Compel  Attendance,  Impose Fine or Imprisonment.

The consequence of the above decision of the Supreme Court is the fact, that any panel or tribunal of inquiry set up by the Federal Government in respect of matters arising outside the Federal Capital Territory, will lack the power to compel attendance or issue summons to any person to attend its sittings.

This was what the quintessential Onu JSC had in mind when he declared at page 677 paras D-F that:

“… it shows that there can be no giving of compulsive powers to the commission of inquiries, for instance, to impose a sentence of fine or imprisonment in conflict with a constitutional provision which gives such powers to the Courts, as such will be invalid”.

From the above quoted portions of the holistic and very novel judgment of the apex court on this issue, it becomes axiomatic both in law and in fact, that the Presidential panel on post election violence set up by our respected and very patriotic President, Goodluck Jonathan appears to infringe on the above case law and thus lacks any power to compel attendance nor impose fine or imprisonment in the circumstances.

If we may ask a rhetorical question at this point to the effect that: “If the panel set up by the Federal Government cannot compel attendance of persons, of what use is such a panel to Nigerians?”

Way Forward for the Federal Government on Tackling Post Election Violence.

In this connection, I venture to suggest that in the light of the Fawehinmi vs. Babangida case (supra), the Federal Government should prevail on the affected Northern States, especially Bauchi State which is even a Peoples Democratic Party controlled State, to immediately set up a panel of Inquiry into the post election violence that led to the callous and wicked killing of innocent corp members in that state. Anyone indicted, should be prosecuted forthwith.

The Federal Government should likewise set up its own panel in respect of violence that occurred within the Federal Capital Territory of Nigeria in accordance with the decision of the Supreme Court above.

If we fail to respect the law on this point, then we may be falling into another  legal booby trap like the case of the Oputa panel, whose Report has since been confined to the legal dustbin, after regrettably spending so much time, money and resources of our dear nation.

This time we must get it right, if not all the perpetrators and perpetuators of post election violence and the wicked murderers of our young corpers, will work free from grave sanctions, should they legally challenge the Federal Government’s post election violence panel as it is presently constituted. As we ruminate over these tragic events, let us remember as a nation that:
“The seeds of our democracy of today, were watered by the blood of those innocent corpers”
May their soul rest in the bosom of God Almighty, Selah.

Dr. Akpo Mudiaga Odje, writes from Warri Delta State.

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