It became clear to us that the issue of the appearance or otherwise
of the former Heads State was a matter of national significance. For the
sake of the records, it is important to refresh the minds of all Nigerians on
the initiatives which the Commission took which culminated in the decision
to issue a Composite Ruling on October 3, 2001.
The Commission went to great lengths to explain to our former leaders that they had a legal, moral and even political duty to honour the call of Nigerians and that the issueswere not merely between them and the Commission. We explained that the summons was in reality the voice of Nigerians who were simply interested in knowing as much about the events in their country as possible.
The legal dimension of the cases was addressed by the three learned
gentlemen who represented the former Heads of State and other interested
respected lawyers. The key issue here was that of the appearances of the
former Heads of State who had defied the Commission but still wished to
first appear through their lawyers, and then secondly have their lawyers
cross examine the witnesses.
The Commission decided to listen to various opinions before arriving at its decision. Those who addressed this very lively session of the Commission on the legal issues were:
Chief G.O. K Ajayi, SAN
Chief Clement Akpambgo, SAN
Chief Shola Rhodes, SAN
Chief Olajide Ayodele, SAN
Mr. Emmanuel Toro, SAN
Chief Gani Fawehinmi, SAN
There were three issues for determination. They were:
i) Whether the Commission, relying on Section 5 of the Tribunals of
Inquiry Act, Cap 447 had the vires or the Constitutional competence
86 to issue and serve witness summonses or the former Heads of
State.
ii) Whether the former Heads of State can appear by proxy, i.e. through
their lawyers, assuming that (i) above is not ultra vires?
iii) Whether, having disobeyed the summonses of the Commission to
appear in person to testify, they can be allowed to cross examine
other witnesses for the Commission?
The Commission reviewed the evidence submitted before it and
concluded that there was really only one central question which was: Do
proceedings before a Commission of Inquiry constitute a suit at law or a judicial
proceeding? In its wisdom, the Commission came to the conclusion that:
In a Commission of Inquiry under the Act, there does not exist an adversary
situation. There is no litigation, and as such, there are no parties properly so
called. No judgment is entered or can be even entered for or against the parties
that do not in law exist.
Everyone who appears before the Commission appears as a witness whose evidence will enable the Commission gather all the facts and make recommendations to the Proper Authority contemplated in Section 14 of the Act.... From our Terms of Reference, every President or ex-President, every top government functionary from January 15th, 1966 to May 28th 1999 is a relevant and necessary witness, whether or not he is specifically mentioned or implicated in any petition before the Commission.
It is therefore no defence for failure to attend to say that any particular official was not mentioned in any particular petition. It is also erroneous to suggest that questions ought to be limited to the averments in a particular petition... That being so, every Head of State during those dark military years will be held accountable. He has to give account to the people of Nigeria, give account of his stewardship in respect of all gross human rights violations committed during his period of office. He is also accountable to history.
The Commission, in its ruling went to great lengths to acquaint
the former Heads of State with the fact that it was wrong for them to even
speculate that they were being singled out for persecution since even the
serving President had been issued with a summons. What is more, the
Commission pointed out that it was not just a question of serving as Head
of state that warranted their being summoned. Two former Heads of State,
Alhaji Shehu Shagari and Chief Ernest Shonekan, were not summoned
because no petitions were pending against. Them, nor were they in any way
mentioned in any pending petition.
On whether it could exercise its powers of section, the Commission
again, in its Composite ruling argued that although Section 10 of the Act
empowers the Commission to issue a warrant of arrest to any person failing
to attend on summons, it believed that: … discretion is usually the better
part of valour. The Commission, it ruled, is on a reconciliation process and
one does not reconcile under duress.... The failure or refusal of our former
Heads of State to attend has rudely shaken the faith and confidence of
Nigerians in the reconciliation process Military rule thrives on the culture of
impunity, which means that the leaders are both above the law and beyond
punishment. Impunity, which is what the refusal to attend portrays, destroys
the confidence of the people in the authority and role of the State.
Since they did not avail themselves of the opportunity to come and
tell their own side of the story, as the President and some former and serving
senior governments functionaries did, we leave a blank space on our records
against each and everyone of the three former Heads of State as evidence
that we are leaving them and their side of the story in the court of human
history.
We recommend to the Federal Government that all the former
Heads of state be considered to have surrendered their right to govern Nigeria
and Nigerians at any other time in the future. It is left for Nigerians to
judge.
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