Chief Gani Fawehinmi & Ors V. General Ibrahim Babangida (Rtd.) & Ors (2003)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C.

On 31 October, 2001, the Court of Appeal, Lagos Division, gave answers to questions set out in a reference made to it by the Federal High Court, Lagos under section 295(2) of the Constitution of the Federal Republic of Nigeria, 1999. The questions are as follows:

1. Whether or not the Tribunals of Inquiry Decree 1966 No. 41 took effect as a law enacted by the National Assembly pursuant to the provisions of section 315 of the Constitution of the Federal Republic of Nigeria 1999.
2. Whether or not sections 5(c), 5(d), 10, 11(1)(b), 11(3), 11(4) and 12 of the Tribunals of Inquiry Decree No. 41 (or any of them) are constitutional and valid or contravene section 35 or 36 of the Constitution of the Federal Republic of Nigeria, 1999.

The answers given by the Court of Appeal provoked the two appeals with which I shall deal in this judgment. Before I come to those answers, I state some relevant facts of the case. The President of the Federal Republic of Nigeria constituted a Judicial Commission of Inquiry (the Commission) for the investigation of human rights violation in Nigeria. It was by a Statutory Instrument No.8 of 1999 (later amended by a Statutory Instrument No. 13 of 1999) which states that it was made by Mr. President in exercise of the powers conferred on him by section 1 of the Tribunals of Inquiry Act, 1966, now to be found in Cap. 447, Laws of the Federation of Nigeria 1990, (the Act) and of “all other powers” enabling him in that behalf. The Commission was composed of eight members under the Chairmanship of the Honourable Justice Chukwudifu Oputa, JSC (Rtd.) who was made the 1st defendant to the two actions brought to contest the validity of the Act and certain actions taken by the Commission. The appellant in one of the appeals – Chief Gani Fawehinmi – was, upon application by him, joined as the 3rd defendant in the actions.

The Commission was given terms of reference which were that it shall-

“(a) ascertain or establish the causes, nature and extent of human rights violations or abuses with particular reference to all known or suspected cases of mysterious deaths and assassinations or attempted assassinations committed in Nigeria between the 1st day of January 1984 and the 28th of May, 1999;

(b) Identify the person or persons, authorities, institutions or organizations which may be held accountable for such mysterious deaths, assassinations or attempted assassinations or other violations or abuses of human rights and determine the motives of the violations or abuses, the victims and circumstances thereof and the effect on such victims or the society generally of the atrocities;

(c) Determine whether such abuses or violations were the product of deliberate State policy or the policy of any of its organs or institutions or whether they arose from abuses by State officials of their office or whether they were the acts of any political organisations, liberation movements or other groups or individuals;

(d) Recommend measures which may be taken whether judicial, administrative, legislative or institutional to redress the injustices of the past and prevent or forestall future violations or abuses of human rights;

(e) Make any other recommendations which are, in the opinion of the Judicial Commission, in the public interest and are necessitated by the evidence.”

In the course of the inquiry, the Commission issued summons for service on persons to testify as witnesses, among whom were the plaintiffs. The plaintiffs resisted being compelled to attend as witnesses.

They proceeded to court instead. In the originating summons by one of them – Brig. General A.K. Togun (Rtd) – he stated his claim as follows:-

(i) A declaration that the Tribunals of Inquiry Act, 1966 No. 41 is not an enactment on any matter with respect to which the National Assembly is empowered to make laws under the Constitution of the Federal Republic of Nigeria, 1999, and it accordingly took effect as a law enacted by the House of Assembly of a State.

(ii) A declaration that it is not lawful for the 1st or 2nd defendant to summon the plaintiff to appear before it to testify or to produce documents.

(iii) An order of prohibition prohibiting the 1st and 2nd defendants, their servants and agents whosoever or howsoever from